John L. JOHNSON a/k/a Johnny L. Johnson
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*164 Leslie D. Rousell, appellant, pro se.
Offiсe of the Attorney General by Jean Smith Vaughan, attorney for appellee.
Before SMITH, C.J., EASLEY and GRAVES, JJ.
GRAVES, Justice, for the Court.
¶ 1. John L. Johnson was convicted of the sale of cocaine within fifteen hundred feet of a church, in violation of Miss.Code Ann. §§ 41-29-139[1] and 41-29-142.[2] The *165 trial judge sentenced Johnson to a term of thirty years imprisonment in the custody of the Mississippi Department of Corrections without early release. Johnson timely appealed and charges the trial court with numerous errors.
FACTS AND PROCEDURAL HISTORY
¶ 2. On June 14, 2002, officers Michael Tolbert and Tony Holifield of the South Mississippi Narcotiсs Task Force conducted an undercover drug buy with the aid of a paid informant, Steve Brown. Officer Tolbert monitored the transaction by surveillance equipment while Holifield and Brown purchased the cocaine. Holifield and Brown arrived at a trailer park in Wayne County at approximately 9:14 p.m., purchased one rock of crack cocaine from Jeffrey Miller and another from Johnson, left that location at approximately 9:18 p.m., and met up with officers Tolbert and Overstreet for a рost-buy meeting where Tolbert took possession of the drugs and weighed them. Johnson was later arrested and indicted by a grand jury for the illegal sale of cocaine within fifteen hundred (1,500) feet of the Saint Mary Holy Church of God in Christ. Five or six days after the sale, Officer Holifield identified Johnson as one of the individuals from whom he purchased drugs after being shown a single photograph of Johnson by Officer Tolbert.[3]
¶ 3. Johnson's trial in the Circuit Court of Wayne County began on July 9, 2003. At trial, the State introduced testimony of Tolbert, Holifield, and Brandi Goodman, who worked for the Mississippi Crime Lab. Tolbert and Holifield provided conflicting testimony as to the amount of money used in the drug buy and as to the value of the drugs purchased. Tolbert testified that he gave Holifield $40 total to purchase drugs and that Holifield purchased a $20 rock of crack cocaine from both Miller and Johnson. Holifield, however, testified that Tolbert gave him $60 to purchase drugs and that he bought a $40 rock from Miller and a $20 rock from Johnson. There was also conflicting testimony as to the weight of the drugs purchased. Tolbert testified that the weight of the cocaine purchased from Johnson was approximately 0.6 grams. Brandi Goodman testified that the drugs she weighed at the state's crime lab, which were purportedly purchased from Johnson, weighed only 0.22 grams.
¶ 4. After the State rested its case-in-chief, Johnson made a motion for a directed verdict, which the court denied. Johnson then rested without offering any additional evidence. The jury returned a unanimous guilty verdict on July 10, 2003. A sentencing hearing was held on September 12, 2003, and the judge sentenced Johnson to thirty years without early release, pursuant to Miss.Code Ann. § 99-19-81, assessed him $250 in court costs, and assessed a crime lab fee of $300. *166 Johnson timely filed a motion for a judgment of acquittal notwithstanding the verdict (J.N.O.V.) or, in the alternative, a new trial, which was denied.
¶ 5. Johnson raises five (5) issues on appeal[4], alleging that: (1) The trial court committed reversible error by failing to grant his motion for a directed verdict. Further, the weight of all of the evidence at the trial of this matter cannot sustain a conviction of guilty of sale of cocaine within 1500 feet of a church. The state failed to prove identification as well as within 1500 feet of a church beyond a reasonable doubt; (2) Although the defendant did not object to the chain of custody and the subsequent admission into evidence of the alleged crack cocaine in this case, the court should not have allowed the State of Mississippi to introduce it into evidence; (3) The trial court committed error by sentencing the defendant to thirty years without parole as doing so was tantamount to giving the defendant a life sеntence; (4) The court committed reversible error by refusing to grant defendant's proposed jury instruction D-2; and (5) Whether the above described errors when viewed cumulatively rise to the level of preventing Mr. Johnson from receiving a constitutionally fair trial. Finding no error, we affirm Johnson's conviction and sentence.
DISCUSSION
I. Sufficiency and Weight of the Evidence.
¶ 6. Johnson's attack of the trial court's denial of a directed verdict breaks down into two arguments: (1) that the evidence put on by the State was insufficient to overcome a motion for a directed verdict, let alone to support a jury verdict of guilty, and (2) that Officer Holifield's pre-court identification of him, based on a single photograph, was unnecessarily suggestive, as was admission of that photo at trial, and amounted to a denial of his fourteenth amendment due process rights. This claim of a due process violation raises an independent issue which we will address separately in Section II below.
¶ 7. This Court reviews an appeal of an overruled motion for a directed verdict or j.n.o.v. as a matter of law, with the legal sufficiency of the evidence being viewed in a light most favorable to the State. McClain v. State,
¶ 8. Johnson attacks his conviction, in part, based on discrepancies in the weight of the cocaine, arguing that this evidence was not credible. He argues that the difference in weight of the cocaine, as measured by the task force officers, and the weight of the cocaine tested by Brandi Goodman at the Mississippi Crime Lab cannot support the conclusion, beyond a reasonable doubt, that the cocaine introduced against him in court is the same substance that the officers supposedly purchased from him on June 14, 2002. Johnson also argues that the State introduced insufficient evidence to prove that the alleged sale took place within 1,500 feet of a *167 church. He noted that Officer Tolbert had not actually measured the distance from the church to the location of the drug buy and, furthermore, that the State introduced no evidence that the church housed an active congregation.
¶ 9. The State rebutted Johnson by introducing testimony of the officers who conducted the drug buy and a surveillance recording of the sale itself. Officer Holifield made a positive identification of Mr. Johnson as the person from whom he purchased cocaine. In response to Johnson's charge that the State hadn't proven the distance of the alleged sale from the church, Officer Tolbert admitted that he did not make an actual measurement of the distance; however, he approximated the distance as roughly thirty (30) yards and testified that he drove from the spot of the sale to the church and that the distance was too short to even register one tenth of a mile on the odometer of his vehicle. Brandi Goodman also testified that the substance purchased by the undercover agent was in fact crack cocaine.
¶ 10. Viewing the evidence introduced at trial in a light most favorable to the State and the guilty verdict, there is sufficient evidence to overcome Johnson's motions for a directed verdict and j.n.o.v. Issues concerning the weight and credibility of evidence are tо be determined by a jury, Harveston v. State,
¶ 11. At trial, Johnson, in аddition to his motion for a j.n.o.v., made an alternative motion for a new trial which the judge denied. Though Johnson does not explicitly state that he is appealing the denial of his motion for a new trial, he does make a claim that his conviction is contrary to the weight of the evidence introduced at trial. This Court's standard for reviewing the trial court's denial of a motion for a new trial is abuse of discretion. A new trial should only be awarded if "the verdict is so contrary to the overwhelming weight of the evidence that, tо allow it to stand, would be to sanction an unconscionable injustice." Esparaza v. State,
¶ 12. To support its case, the State introduced a tape recording of the sale where Johnson's fellow drug dealer referred to him as Johnny. Officer Holifield, the officer who conducted the undercover drug buy, testified that Johnson was the individual he purchased drugs from and made an in-court identification of Johnson. The State also introduced evidence from the state's crime lab which indicated that the substance Johnson sold was in fact сrack cocaine. Johnson's defense was based primarily on an argument that the cocaine introduced into evidence was not the same piece of cocaine which the officers supposedly bought from him. He also alleges misidentification by the officers working the case, yet Johnson never offered an alibi or any hard evidence that pointed away from his guilt. After looking at the weight of the evidence supporting a guilty verdict versus the weight of the evidence supporting an aсquittal, allowing Johnson's conviction to stand would not sanction unconscionable injustice. Therefore, *168 we find that the trial court did not abuse its discretion in refusing to grant Johnson a new trial.
II. Pretrial Identification and Booking Photo.
¶ 13. Johnson also attacks the pre-court identification procedure used by the officers in this case, alleging that the suggestive nature of the procedure constituted a denial of his fourteenth amendment right to due process of law. He charges that this error was compounded by the trial court's decision to allow the photograph used for identification purposes to be admitted into evidence. Johnson cites Stovall v. Denno,
¶ 14. In Neil v. Biggers,
[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.
Biggers,
¶ 15. Applying the Biggers factors to the instant case, looking at the totality of circumstances, there is little likelihood of misidentification. First, Offiсer Holifield had ample opportunity to view Johnson; he testified that he stood face to face from Johnson at a distance of a few feet, was in his presence for approximately two to three minutes, and held a conversation with him.
¶ 16. Second, Officer Holifield's degree of attention can be considered to be at a high level because he did not view Johnson in passing or from a great distance; rather, he conducted the drug purchase with Johnson up close and over a period of three to four minutes. Additionally, Holifield testified that he was trained to notice distinguishing marks such as facial features, tattoos, and scars for identification purposes. These facts indicate that Officer Holifield held a high degree of attention both when he first met Johnson and later on when he identified him as the party from whom he bought drugs.
¶ 17. Third, the record reflects that Holifield's prior description was accurate. Holifield testified that the other drug dealer, Jeffrey Miller, referred to Johnson by name as "Johnny." He alsо testified that as he was leaving the purchase site, he verbally transmitted a description of Johnson to Officer Tolbert indicating height and weight and the fact that he had braids in his hair.
*169 ¶ 18. Fourth, Officer Holifield exhibited a high degree of certainty regarding his identification of Johnson, testifying that he was 100% sure that the person in the picture he was shown was the perpetrator. This was bolstered by his positive in-court identification of Johnson and his statement that his identification of Johnson would not change, even if he were shown numerous photographs of other potential suspects.
¶ 19. Fifth, there was not a long time period between the date of the drug sale and the date that Holifield identified Johnson as the seller of the drugs he purchased. Officer Holifield testified that he was shown the photograph of Johnson about five days after the drug deal. This was corroborated by Officer Tolbert, who estimated that he showed Holifield Johnson's photograph roughly six days after the drug deal. After applying the Biggers factors to the instant case, we find that any suggestiveness in the identification procedures used here does not constitute error, as there was little likelihood of misidentification under the circumstances.
¶ 20. Johnson also argues that his due process rights were violated by the trial court's admission of the booking photo from his arrest. He claims the "mug shot" was highly prejudicial and suggestive of prior criminal acts due to identifying marks on the photo. Johnson argues for reversal based on this Court's ruling from Sloane v. State,
(1) The Government must have a demonstrable need to introduce the photographs; and (2) The photographs themselves, if shown to the jury, must not imply that the defendant had a prior criminal record; and (3) The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.
Id. at 18 (citing United States v. Harrington,
¶ 21. The factual situation here differs materially from that in Sloane. In Sloane, this Court determined that the State had offered no reason for introducing the questionable photograph, as the witness made a positive in-court identification of the defendant. Id. The admission of the photo was particularly deficient in the fact that the photograph introduced at trial was of a much younger defendant and it contained booking information indicating prior criminal activity. Id. Additionally, thе questioning of the State's witness indicated that the photographs used for identification were old file photos, which highlighted the fact that the defendant was previously suspected of criminal activities. Id.
¶ 22. The photograph introduced in this case is the booking photo from Johnson's arrest for the crime charged here, as opposed to a file photo of an earlier crime, as in Sloane. The photo was first produced at trial by Officer Tolbert and the State introduced it as an exhibit for identification purposes only. Officer Holifield later testified that the exhibit he was shown in court was the same photo upon which he based his previous identification of Johnson. The State then sought to have the photo admitted into evidence. Defense counsel objected, and the judge conferred with counsel, outside the jury's presence, to consider admission of the photo. Prior to admitting the photograph, the judge made a specific finding, stating:
*170 The photograph is a color photo of the defendant taken in a regular shirt with a concrete wall background. There are no indications where this picture was taken from to indicate anything about prior arrest, or anything like that.
Further, the judge redacted a number that appeared below Johnson's name on the photograph. While the State offered no specific reason for the photo's introduction into evidence, after previously being introduced for identification purposes, the record does not establish that the photograph was prejudicial or suggestive of other crimes. As such, we find that Johnson's due process challenge on this ground is also without merit.
III. Admission of the Crack Cocaine into Evidence.
¶ 23. At trial, Johnson failed to object either to the chain of custody or to the admission of the cocaine introduced into evidence, yet he asks this Court to address the propriety of the judge's admission of the cocaine for the first time on appeal. This Court normally reviews a judge's decision to admit or exclude evidence for an abuse of discretion. Graves v. State,
¶ 24. Johnson objects to the judge's admission of the crack cocaine introduced at trial, which he raises for the first time on appeal, based on an allegеd break in the chain of custody. The record reflects that the State offered sufficient testimony from Officer Tolbert, Officer Holifield, and Brandi Goodman to satisfy the requirement of M.R.E. 901(a)[5] for establishing a proper chain of custody for admission of the cocaine at trial. Moreover, the trial court specifically asked defense counsel if he had any objections to introduction of the cocaine either as an exhibit for identification purposes only or for admission into evidence and counsel did not object on either occasion. As the trial court properly admitted the cocaine into evidence without any objection from Johnson, it cannot be said that the trial court "abused its discretion" or committed "plain error." We find that Johnson's claim of a break in the chain of custody is procedurally barred. Further, we find his claim is without merit.
IV. Sentence.
¶ 25. A trial court has "sole discretion" for imposing an appropriate sentence in a criminal proceeding. Corley v. State,
¶ 26. Johnson, who is now 52 years old, argues that the trial court erred in sentencing him to thirty years without parole because it is equivalent to a life sentence. He claims that the case of Stewart v. State,
V. Proposed Jury Instruction D-2.
¶ 27. Johnson claims that the trial court erred when it refused his jury instruction on reasonable doubt, D-2. He argues that the judge was incorrect in finding that D-2 was cumulative of C-2 and that the denial of his instruction kept him from presenting his theory of the case. Johnson cites the case of Murphy v. State,
¶ 28. In Murphy, this Court reversed the trial court's refusal to give one of the defendant's proposed jury instructions in a business burglary case that was based entirely on circumstantial evidence. The proposed instruction would have instructed the jury to acquit the defendant if it found that he had found the stolen goods at a garbage dump, as he claimed, rather than that he had broken and entered private property to steal the goods, as the State contended. Murphy,
¶ 29. Johnson's reliance on Murphy in this instance is misplaced. Johnson's proposed jury instruction D-2 does not attempt to state any theory of his case; rather, he merely attempts to define reasonable doubt. The trial court determined that D-2 was cumulative of the court's instruction C-2, a more succinct instruction on reasonable doubt. This Court has previously stated that "[a] trial judge is under no obligation to grant redundant instructions" and that "refusal to grant an instruction which is similar to one already given does not constitute reversible error." Montana v. State,
VI. Claim of Cumulative Error.
¶ 30. Johnson argues that even if none of the above-charged errors, standing *172 alone, requires reversal, the cumulative effect of those errors mandates a reversal of his conviction and sentence. In Manning v. State,
CONCLUSION
¶ 31. We find that the trial court did not err in denying Johnson's motion for a JNOV or a new trial, as the jury verdict was supported by legally sufficient evidence and not contrary to the weight of the evidence. We also find that the pretrial identification procedures and in-court admission of Johnson's booking photo did not deprive Johnson of his due process rights. We find that Johnson waived his appeal concerning the chain of custody and admission of the cocaine, as he failed to object at trial. Further, such claim is without merit. Additionally, we find that the trial court did not err in sentencing Johnson to thirty years imprisonmеnt without parole, as the sentence was within the statutory guidelines. We find that the trial court did not err in refusing to grant Johnson's proposed jury instruction D-2 because the trial court accurately instructed the jury on reasonable doubt with instruction C-2. Based on the above findings, we also find that Johnson's claim of cumulative error is without merit. We affirm the conviction and sentence imposed by the Circuit Court of Wayne County.
¶ 32. CONVICTION OF SALE OF COCAINE WITHIN 1500 FEET OF A CHURCH AND SENTENCE OF THIRTY (30) YEARS, WITHOUT PAROLE AND WITH CONDITIONS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TOGETHER WITH PAYMENT OF FEES AND COSTS, AFFIRMED. SENTENCE SHALL BE SERVED CONSECUTIVELY TO ANY SENTENCE CURRENTLY IMPOSED ON THE APPELLANT. THE APPELLANT SHALL BE GIVEN CREDIT ON THIS SENTENCE FOR ANY TIME SERVED PRIOR TO THIS DATE IN THE WAYNE COUNTY JAIL FROM OCTOBER 1, 2002 TO SEPTEMBER 19, 2003, OR A TOTAL OF 347 DAYS.
SMITH, C.J., WALLER AND COBB, JJ., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
NOTES
Notes
[1] Miss.Code Ann. § 41-29-139(a) states in part, "it is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance." Cocaine is a Schedule II substance under Miss.Code Ann. § 41-29-115.
[2] Miss.Code Ann. § 41-29-142 states in part, "any person who violates or conspires to violate Section 41-29-139(a)(1), Mississippi Code of 1972 ... in or on, or within one thousand five hundred (1,500) feet of, a building or outbuilding which is all or part of ... any church ... shall, upon conviction thereof, be punished by the term of imprisonment or a fine, or both, of that authorized by Section 41-29-139(b) and, in the discretion of the court, may be punished by a term of imprisonment or a fine, or both, of up to twice that authorized by Section 41-29-139(b).
[3] The photograph used for pretrial identification was a booking photo of Johnson taken on the night of his arrest for the instant crime. At trial, this same photo was admitted into evidence.
[4] The issues raised by Johnson are quoted verbatim from his appellate brief, so as to frame his arguments in his own words.
[5] Mississippi Rule of Evidence 901(a) states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."