Stubbs v. State

878 So. 2d 130, 2004 WL 61157
CourtCourt of Appeals of Mississippi
DecidedJanuary 13, 2004
Docket2002-KA-00399-COA
StatusPublished
Cited by17 cases

This text of 878 So. 2d 130 (Stubbs 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
Stubbs v. State, 878 So. 2d 130, 2004 WL 61157 (Mich. Ct. App. 2004).

Opinion

878 So.2d 130 (2004)

Donyale STUBBS, a/k/a Donyale Holloway, a/k/a Bean, Appellant
v.
STATE of Mississippi, Appellee.

No. 2002-KA-00399-COA.

Court of Appeals of Mississippi.

January 13, 2004.
Rehearing Denied April 13, 2004.
Certiorari Denied July 22, 2004.

*133 John R. Reeves, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before KING, P.J., IRVING, and GRIFFIS, JJ.

IRVING, J., for the Court.

¶ 1. A Lincoln County jury found Donyale Stubbs guilty of the sale of cocaine. The trial judge sentenced Stubbs to nineteen years in the custody of the Mississippi Department of Corrections. Stubbs filed the usual post-trial motion for a JNOV or, in the alternative, for a new trial. This motion was denied, and Stubbs has appealed, asserting six suggestions of error. We quote them verbatim:

1. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that Kevin Brothern told Vanderslice that drugs could be purchased from Donyale Stubbs is reversible error.
2. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that he found a lamp in Donyale Stubbs's living room which was connected to a motion sensor in the yard is reversible error.
3. Allowing Mississippi Bureau of Narcotics Agent Vanderslice to testify that he found guns in Donyale Stubbs's home is reversible error.
4. The State implied in closing argument that Donyale Stubbs is guilty because he did not testify, thereby violating his constitutional right to not testify without adverse inferences.
5. The State wrongly appealed to the fears and prejudices of the jury by implying that Kevin Brothern, its chief witness, would be harmed unless the jury convicts Stubbs.
6. The verdict is against the overwhelming weight of the evidence.

¶ 2. Discerning no reversible error, we affirm the trial court's judgment.

FACTS

¶ 3. The Southwest Narcotics Enforcement Unit enlisted Kevin Brothern, a confidential informant, to aide them in buying cocaine from Donyale Stubbs. Brothern went to Southwest Narcotics Enforcement Unit's offices in Lincoln County, Mississippi and was prepared for this operation. Brothern and his vehicle were searched. Brothern was then provided with a micro-cassette recorder, a body transmitter, and $100 in order to make the purchase.

¶ 4. When Brothern left the Southwest Narcotics Enforcement Unit's office, he drove to the trailer where Stubbs lived. Brothern was followed by Southwest Narcotics Enforcement Unit's agents. When Brothern arrived at Stubbs's home, agents traveled a half mile down the road from the trailer and listened to Brothern's actions over the body transmitter. Agents heard Brothern enter the trailer and ask for Stubbs. Agents then heard Stubbs's voice. Brothern asked Stubbs for $100 worth of cocaine. Agents heard Stubbs leave and return within minutes. The last thing that the agents heard was Brothern counting money. After the transaction, Brothern traveled to a pre-determined location to meet the agents and give them the crack cocaine that he purchased from Stubbs.

¶ 5. Later that night, Southwest Narcotics Enforcement Unit's agents got a search warrant for Stubbs's home. The agents recovered the money that was previously used to purchase the cocaine. Agents also found guns and motion lights. Additional *134 pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admissions into Evidence

¶ 6. The first five issues which Stubbs cites as error regard the admission of evidence. Stubbs argues that the trial court erroneously allowed statements of a Southwest Narcotics Enforcement Unit's agent regarding Stubbs and the subsequent search of his home. The other issues involve alleged prosecutorial misconduct by the State. We begin our analyses with the allegations of error involving the testimony of Agent Gary Vanderslice.

¶ 7. The standard of review for this Court regarding the admissibility of evidence is abuse of discretion of the trial court and reversal may be had only where that discretion has been abused. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Unless the trial judge's discretion is so abused as to be prejudicial to the accused, an appellate court will not reverse. Shearer v. State, 423 So.2d 824, 826 (Miss.1983). "A review of our case law indicates that the discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value." Noe v. State, 616 So.2d 298, 303 (Miss.1993) (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238.

¶ 8. Stubbs's first argument of error concerns the testimony of Agent Vanderslice that Brothern informed him that drugs could be purchased from Stubbs. Stubbs explains that the statement was highly prejudicial and could have led the jury to believe the statement was true simply because Agent Vanderslice, a government agent, repeated what Brothern said to him.

¶ 9. Stubbs supports this argument of reversible error by citing McGowan v. State, 375 So.2d 987 (Miss.1979). In that case the supreme court found that "[a] witness may not repeat an out-of-court statement which names a defendant as the person from whom contraband may be purchased." Id. at 990. Stubbs also quotes case law from Ratcliff v. State, 308 So.2d 225 (Miss.1975), which held that what an informant tells officers in the course of their investigation is hearsay and is inadmissible. Id. at 227. However, we find that Ratcliff does not support Stubbs's contentions. That case goes on to explain that, "[o]ne of the well-established rules of jurisprudence in this state ... is that an accused person is entitled to be confronted with and have opportunity to cross-examine witnesses against him." Id. (citing U.S. Const. amend. VI; Miss. Const. art. 3, § 26). Therefore, we interpret the Ratcliff holding to mean that governmental officers cannot divulge the information elicited from informants if those same informants are not available for cross-examination by the defendant, for it would violate that defendant's right to confront his accusers. In our case, the informant, Brothern was available for cross-examination by Stubbs.

¶ 10. We do not hold that the out-of-court statements by informants to officers escape our hearsay rules. However, we recognize that there are some circumstances where an officer can testify at trial about information provided to him by informants. Those situations include statements explaining actions taken by an officer.

*135 In Swindle [v. State, 502 So.2d 652 (Miss.1987)] the Court found that an officer's testimony as to the substance of his conversation with an informant was offered to show the reason for the officer's presence at the scene when it stated, "an informant's tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time...." It should also be noted that the Court found that the out-of-court declaration in Swindle "was not introduced for the purpose of proving the truth of the assertion ...

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Bluebook (online)
878 So. 2d 130, 2004 WL 61157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stubbs-v-state-missctapp-2004.