Turner v. State

950 So. 2d 243, 2007 WL 584858
Court of Appeals of Mississippi·Decided February 27, 2007·No. 2004-KA-02386-COA·Published·Cited by 1 cases

Opinion

950 So.2d 243 (2007)

Jason TURNER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-02386-COA.

Court of Appeals of Mississippi.

February 27, 2007.

*245 Daniel Christopher Jones, attorney for appellant.

Office of the Attorney General by Jacob Ray, attorney for appellee.

Before LEE, P.J., IRVING, BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. Jason Turner was convicted in the Circuit Court of Simpson County of two counts of selling cocaine. He was sentenced to a term of ten years for each count, to run concurrently, in the custody of the Mississippi Department of Corrections. Turner appeals, contending that (1) the testimony of the confidential informant should have been heard at trial, (2) the trial court erred in admitting into evidence cocaine bags and transcriptions of audiotapes, and (3) the trial court erred in failing to sustain a motion for directed verdict, judgment notwithstanding the verdict ("JNOV"), or in the alternative, motion for a new trial. We find no error and affirm the conviction and sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 18, 2003, Turner was indicted for two counts of sale of cocaine under Mississippi Code Annotated section 41-29-139 (Rev.2001). Officer Barry Coward, a criminal investigator with the Mississippi Bureau of Investigation who was working undercover, testified that Turner sold him crack cocaine on two separate occasions in Magee, Mississippi. Colloquies of both transactions were audiotaped and monitored by Simpson County Sheriff's Department narcotics task force officer, Randy Crawford.

¶ 3. On the evening of December 11, 2002, Officer Coward was accompanied by a confidential informant, Todd Barrett, in an undercover automobile in order to introduce Coward to Turner and to make an undercover drug purchase. Officer Coward testified that he purchased three grams of crack cocaine from Turner at this meeting, and made another undercover drug purchase of three grams of crack cocaine from Turner, unaccompanied by Barrett, on the evening of December 17, 2002. Officer Crawford did not witness either transaction, but listened nearby via a body wire worn by Officer Coward. On the audiotape recording of the first purchase, Turner was addressed by first name during the drug buy. The Mississippi Crime Lab later confirmed that the substance in the bags purchased both evenings was crack cocaine.

¶ 4. After his indictment on September 7, 2004, Turner filed a motion to compel disclosure of the confidential informant's name, address, occupation, and previous criminal record. An agreed order was issued on September 30, 2004, whereby the State agreed to reveal the name of the confidential informant in the automobile with Officer Coward at the first transaction. On October 7, 2004, in the Circuit Court of Simpson County, Turner's trial began. The State called officers Coward and Crawford to testify, as well as two forensic scientists from the Mississippi Crime Lab. Officer Coward made an in-court identification of Turner as the person who sold him the drugs. The two forensic scientists testified the substance in the bags purchased was crack cocaine and explained the procedure taken to ensure there was an authenticated chain of custody once the bags arrived at the lab. The State introduced into evidence two bags of *246 crack cocaine weighing 2.9 and 2.0 grams. The State also introduced into evidence audiotapes of the two drug purchases, as well as transcriptions of each tape. Turner introduced into evidence two drug case offense reports, which were submitted to the district attorney, stating the amount of cocaine purchased was 3.0 grams during each buy. These amounts conflicted with the amounts submitted to the State Crime Lab, by 0.10 and 1.0 grams respectively. After the State rested, Turner moved for a directed verdict, which the court denied. The defense did not call any witnesses. The jury returned a verdict of guilty on both counts of selling cocaine. Turner was sentenced to ten years for each count, to run concurrently, in the custody of the Mississippi Department of Corrections. Turner filed a motion for JNOV or, alternatively, a new trial, which was denied. Turner now appeals from his conviction and sentence.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO HAVE THE TESTIMONY OF THE CONFIDENTIAL INFORMANT HEARD.

¶ 5. This Court's standard of review for the admission or exclusion of evidence by the trial court is very limited. The trial judge has a great deal of discretion in evaluating the relevancy and admissibility of evidence. Jefferson v. State, 818 So.2d 1099, 1104(¶ 6) (Miss.2002). "Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse" the trial judge's rulings. Id. (citing Hughes v. State, 735 So.2d 238, 270 (¶ 134) (Miss.1999)).

¶ 6. In his motion for JNOV or, alternatively, a new trial, Turner claims the testimony of the confidential informant, Barrett, should have been heard. Barrett did not testify because he could not be located by Turner's defense counsel to be served a subpoena. The State had not provided Barrett's address and phone number. However, according to the circuit court docket, the subpoena for Barrett was issued on the same day as the agreed order, September 30, 2004, and the agreed order only required the identity of Barrett, not his address. During cross-examination, Officer Coward stated he did not know the address, phone number or location of Todd Barrett. Turner maintains that if Barrett could have been located, he would have testified at trial that Turner was not the man who sold cocaine to Officer Coward. Without Barrett's testimony at trial, Turner claims he was prejudiced.

¶ 7. Disclosure of a confidential informant's identity is not required unless the confidential informant is to be produced at hearing or trial, or failure to disclose his or her identity will infringe on the constitutional rights of the accused, or the informant is an eyewitness to the events which lead to the charges against the defendant. URCCC 9.04(B)(2). If the informant "is not a material witness to the guilt or innocence of the accused," disclosure is within the discretion of the trial court. Graves v. State, 767 So.2d 1049, 1052(¶ 10) (Miss.Ct.Ap.2000). However, where "the informer is an actual participant in the alleged crime, the accused is entitled to know who he is." Id. (citing Read v. State, 430 So.2d 832, 836 (Miss. 1983)). Additionally, when the disclosure of the confidential informant's identity is warranted, "[a]t a minimum, . . . the [S]tate must, in good faith, disclose all information in its possession, including that of location." Copeland v. State, 423 So.2d 1333, 1335 (Miss.1982) (emphasis added). Yet, there are no Mississippi cases which specify the extent of the State's duty regarding its efforts to produce *247 a confidential informant. Id. In certain cases the State may have a duty to show its good faith, but this requirement will be developed only on a case-by-case basis. Id. However, this duty shall not be expanded to require the State to produce the informant at trial. Id. at 1335-36.

¶ 8. In our case, since the confidential informant introduced Officer Coward to the drug dealer, he was both a participant and an eyewitness to the drug purchase. Therefore, the disclosure of his identity was required. The State complied with this requirement and provided Turner with the informant's identity pursuant to the agreed order of September 30, 2004.

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Turner v. State, 950 So. 2d 243, 2007 WL 584858 (Mich. Ct. App. 2007).

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