Shipp v. State

749 So. 2d 300, 1999 WL 733142
CourtCourt of Appeals of Mississippi
DecidedSeptember 21, 1999
Docket97-KA-01241-COA
StatusPublished
Cited by8 cases

This text of 749 So. 2d 300 (Shipp v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shipp v. State, 749 So. 2d 300, 1999 WL 733142 (Mich. Ct. App. 1999).

Opinion

749 So.2d 300 (1999)

David SHIPP, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-01241-COA.

Court of Appeals of Mississippi.

September 21, 1999.

*301 Jack R. Jones, III, Southaven, Attorney for Appellant.

Office of the Attorney General by Pat Flynn, Michael C. Moore, Attorneys for Appellee.

BEFORE KING, P.J., IRVING, AND LEE, JJ.

KING, P.J., for the Court:

¶ 1. A Desoto County grand jury indicted appellant David Shipp, charging that he did "wilfully, unlawfully and feloniously, knowingly and intentionally sell, barter, transfer, distribute or dispense a controlled substance, to-wit: Cocaine." Pursuant to a jury trial, Shipp was convicted. On appeal, Shipp presents two assignments of error, which we quote verbatim from his brief:

1. THAT THE PROSECUTOR INTERJECTED PREJUDICIAL MATTER CONCERNING THE POSSIBILITY THAT CRACK COCAINE WAS MORE ADDICTIVE THAN REGULAR COCAINE.
2. THAT THE PROSECUTOR IMPROPERLY COMMENTED TO THE JURY DURING CLOSING ARGUMENT IN A MANNER THAT COMMENTED ON THE RIGHT OF THE APPELLANT TO NOT TESTIFY.

Finding that Shipp's assertions of error lack merit, we affirm.

I. FACTS

¶ 2. On March 11, 1997, Officer Gary Henry drove to the West End area of Hernando, Mississippi. As Henry traveled along Southern Street. He saw an individual and held up two fingers. That individual, appellant David Shipp, approached the vehicle and asked Henry, an undercover narcotics agent, what he needed. Officer Henry stated that he needed a couple of rocks. The individual explained that he only had one, which he sold to Officer Henry for $20. Officer Henry took the "rock," along with a videotape of the transaction, to the Metro Narcotics Unit Office. Although Shipp was not immediately arrested, he was identified as the individual in the videotape who sold the crack cocaine to Officer Henry.

II. TRIAL

¶ 3. The State's first witness, Officer Gary Henry, described the undercover and surveillance work related to apprehending narcotics offenders. On March 11, 1997, Officer Henry was working in an undercover capacity for the Desoto County Metro Narcotics Unit. According to normal operating procedure, he met surveillance officers at the unit office and was issued state funds, a tape recorder, a body wire and a video recorder. He drove an undercover vehicle from the office to the West End and recorded on videotape the sale for which Shipp was indicted. Officer Henry identified the videotape, and it was introduced into evidence.

¶ 4. Officer Henry recalled traveling on Southern Street and holding up his fingers as he saw an individual to his right. When *302 that individual approached the vehicle, Officer Henry said that he needed "a couple of rocks." The individual sold Officer Henry one rock for $20 of the official state funds that Officer Henry was carrying. Officer Henry said that he took the rock and released the rock and the videotape to Agent Carmon's custody at the office.

¶ 5. As the jury watched the videotape, Officer Henry narrated the events depicted. The State then asked appellant Shipp to stand and allow the jury to see both profiles and a frontal view. The jury was allowed to view the tape as Shipp stood near the television. Officer Henry identified Shipp as the person on the tape from whom he purchased a rock of cocaine. After Officer Henry identified the bag with the rock cocaine in it, the rock was introduced into evidence. On cross-examination, Officer Henry acknowledged that he made another purchase that day before he returned to the office. He explained that he kept the two purchases separate by putting the first bag on the car seat and the second bag in his pocket.

¶ 6. The second witness, Officer Gary Carmon, testified that he had known Shipp for about eight years and identified the defendant as Shipp. He recalled that he took custody of the videotape on March 11, 1997. Officer Carmon also described the conversation on the audiotape of the subject transaction. He explained that Officer Henry gave him the evidence at the Metro Narcotics office and differentiated the bags from the first and second purchase. Officer Carmon noted that Shipp was not immediately arrested, so the officers did not confiscate the specific $20 bill from him and compare the serial number to the one that Officer Henry paid for the cocaine.

¶ 7. Next, Officer Gary Smith of the Desoto County Metro Narcotics Unit identified the submission form that accompanied the cocaine when he took it to the Tupelo Crime Laboratory, and the form was admitted into evidence. He explained that the bags were marked for identification.

¶ 8. The State called Edwina Ard, the director and analyst at the City of Tupelo Police Department and the crime laboratory. After Ard detailed her education and background, she identified the crack cocaine which she had tested for this case. The defense objected to the State's question of whether crack is more or less addictive than the powder form of cocaine. While the defense did not ask the court to strike the question from the record, and although Ard stated no answer, the defense moved for a mistrial. The court overruled the motion, and the exhibit was admitted into evidence despite the defense's suggestion that the chain of custody was insufficiently established.

¶ 9. The State rested. Outside the presence of the jury, the judge informed Shipp that his prior offense increased the maximum sentence from thirty years to sixty years in this case. The defense moved for a directed verdict. The motion was denied, and the court reviewed Shipp's right to testify or refrain from testifying. The defense rested, and the court considered proposed jury instructions. The parties offered closing arguments.

¶ 10. During the State's response to Shipp's closing arguments, the defense objected to the State's rebuttal as to defenses that defendants could offer. The court overruled the objection. The State continued to offer examples of defenses that imply reasonable doubt by suggesting that prosecutors or law enforcement officers failed to use every means possible to prosecute a defendant. The prosecutor explained that the issue for the jury was whether Shipp was the person in the videotape rather than whether the State presented a perfect case.

¶ 11. The jury returned a verdict finding Shipp guilty as charged.

¶ 12. Shipp's hearing for post trial motions and sentencing occurred October 3, 1997. Both issues presented on appeal *303 were included in the motion for new trial which the court denied. Although Shipp's mother testified that Shipp has never been violent, the State emphasized that Shipp was caught selling cocaine within two months after he was released from prison on a previous drug conviction. The court imposed a sentence of thirty years in the custody of the Mississippi Department of Corrections, twenty-five years suspended and five years to serve, to run consecutively to the time Shipp was serving due to revocation of sentence suspension for a previous violation.

III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES

A. Shipp's first issue:

Did the prosecutor interject prejudicial matter by asking whether crack cocaine was more addictive than regular cocaine?

1. Standard of Review

¶ 13. "This Court has repeatedly held that the granting of a motion for a mistrial is within the sound discretion of the trial judge." Ragin v. State, 724 So.2d 901(¶ 13) (Miss.1998)( citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996)); Bass v. State, 597 So.2d 182, 191 (Miss. 1992);

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Bluebook (online)
749 So. 2d 300, 1999 WL 733142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipp-v-state-missctapp-1999.