Walker v. State

823 So. 2d 557, 2002 WL 982647
CourtCourt of Appeals of Mississippi
DecidedMay 14, 2002
Docket2001-KA-00387-COA
StatusPublished
Cited by18 cases

This text of 823 So. 2d 557 (Walker 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
Walker v. State, 823 So. 2d 557, 2002 WL 982647 (Mich. Ct. App. 2002).

Opinion

823 So.2d 557 (2002)

Willie WALKER, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00387-COA.

Court of Appeals of Mississippi.

May 14, 2002.
Rehearing Denied July 30, 2002.

*560 William L. Bambach, Columbus, attorney for appellant.

Office of the Attorney General by Charles W. Maris Jr., attorney for appellee.

Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.

BRANTLEY, J., for the court.

¶ 1. In the Circuit Court of Monroe County, Willie Walker was convicted of the crime of sale of cocaine. Walker was denied his motion for judgment notwithstanding the verdict or in the alternative a new trial. Aggrieved, Walker appeals his conviction raising the following issues as error:

I. WHETHER WALKER WAS NOT ALLOWED TO TESTIFY OR ADVISED THAT HE HAD A RIGHT TO TESTIFY.
II. WHETHER THE VERDICT WAS THE RESULT OF PREJUDICE, BIAS, OR EMOTION CREATED BY IMPANELING A JURY COMPOSED OF PERSONS WHO WERE NOT HIS PEERS OR OF THE SAME RACE.
III. WHETHER THE ALLEGED BREAKS IN THE CHAIN OF CUSTODY RENDERED THE EVIDENCE INADMISSIBLE.
IV. WHETHER WALKER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
V. WHETHER THE ALLEGED CUMULATIVE ERROR AT TRIAL IN THIS CASE REQUIRES THAT THE CONVICTION BE REVERSED.
VI. WHETHER THE TRIAL COURT ERRED IN DENYING WALKER'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL.
VII. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21, 1999, officers working with the North Mississippi Narcotics Unit planned and executed an undercover drug buy. At the pre-buy meeting, Officer Keith Vann was wired with a body transmitter and his car was equipped with a video recorder. After the pre-buy meeting, Officer Vann proceeded to the target area where he was approached by an individual. The officer asked the individual where he could obtain some dope. After a short discussion, the individual told him to return after driving around the block a couple of times. Upon Officer Vann's return, the individual approached the vehicle and sold him a substance, later determined to be cocaine, for forty dollars. Two other agents, Donna Franks and Ray Blaylock, performed surveillance of the activity from a distance. Although they were unable to see the actual transaction, they were able to monitor the audio portion of the sale from the body wire.

¶ 3. After the purchase, Officer Vann drove around the neighborhood for a short period of time before he returned to the office for the post-buy meeting. Officer Vann did not come into contact with anyone after the drug buy until Agent Franks approached his vehicle with a packet in which he placed the substance. Agent Franks sealed and marked the packet. On *561 October 28, 2001, Agent Franks delivered the substance to the Tupelo Crime Lab where it was logged into the laboratory records and then placed into the vault until analyzed. The test results verified that the substance was cocaine. After the test was performed, the analyst sealed, initialed, and dated the packet and placed it into the vault for storage until it was picked up for court.

¶ 4. At trial, the video and audio tapes of the drug buy were presented. Officer Vann corroborated the video and identified Walker as the individual on the tape who approached the vehicle and sold him the cocaine. The director and analyst of the Tupelo Crime Lab verified her results that the tested substance purchased from Walker was cocaine. Walker rested without testifying or presenting any witnesses or evidence for his defense.

DISCUSSION

I. WHETHER WALKER WAS NOT ALLOWED TO TESTIFY OR ADVISED THAT HE HAD A RIGHT TO TESTIFY.

¶ 5. Walker claims that he was denied his right to testify and was not informed that he had a right to testify by his counsel or the court. We will address his claim as to the court below and his claim as to his counsel later in Walker's ineffective assistance of counsel assignment of error.

¶ 6. First, we address Walker's claim that he was denied his right to testify. Walker did not testify and we find nothing in the record that suggests he wanted to testify or that he was not allowed to do so by the court or his counsel. Walker also provides no facts other than his own assertions to support this contention. The Mississippi Supreme Court has stated in Mason v. State:

We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.

Mason v. State, 440 So.2d 318, 319 (Miss. 1983). Furthermore, the assertion fails on direct appeal for there is not one word in the present record that even mentions the point. The record reflects that at the conclusion of the prosecution's case, Walker rested without offering any evidence. Nothing suggests that he indicated of record a desire to testify, nor is there any course of proceedings in chambers wherein the court advised him of his right of allocution. See Jaco v. State, 574 So.2d 625, 634 (Miss.1990); Shelton v. State, 445 So.2d 844, 847 (Miss.1984); Culberson v. State, 412 So.2d 1184, 1186 (Miss.1982), affirmed 456 So.2d 697 (Miss.1984). "As the point was not presented in any way, shape, form or fashion at trial, it is not available to [Walker] on [his] direct appeal." Jaco, 574 So.2d at 634.

¶ 7. As to Walker's second assertion that the court failed to inform him of his right to testify, he cites Culberson v. State, 412 So.2d 1184 (Miss.1982), for support. The supreme court in Culberson stated:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. *562 A record should be made of this so that no question about defendant's waiver of his right to testify should ever arise in the future.

Culberson, 412 So.2d at 1186-87. The Mississippi Supreme Court, in continuance of Culberson, stated in Shelton that trial courts are not required to follow Culberson in their proceedings because they were "merely suggest[ing]" that trial courts inquire whether defendants desire to testify. Shelton, 445 So.2d at 847. Therefore, although the preferred practice is for the trial court to inform the defendant on the record of the right to testify, no legitimate claim of reversible error can be predicated on the trial court's failure in this regard. This assignment of error is without merit.

II. WHETHER THE VERDICT WAS THE RESULT OF PREJUDICE, BIAS, OR EMOTION CREATED BY IMPANELING A JURY ALLEGEDLY COMPOSED OF PERSONS WHO WERE NOT HIS PEERS OR OF THE SAME RACE.

¶ 8.

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Bluebook (online)
823 So. 2d 557, 2002 WL 982647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-state-missctapp-2002.