Lawrence v. StateLawrence v. State
- Reporters:
- ,
- Before:
- King, Irving, Barnes, Bridges, Lee, Myers, Chandler, Griffis
IRVING, J., for the Court.
¶ 1. Reta Lawrence was convicted by a George County jury of transfer of a controlled substance. Feeling aggrieved, Lawrence appeals her conviction, arguing: (1) that her trial took place outside the 270-day statutory time limit; (2) that the jury in her case was never placed under oath; and (3) that the State failed to meet its burden of proof in her case because it did not prove that Oxycodone is a Schedule II controlled substance.
¶ 2. We find no reversible error and therefore affirm Lawrence‘s conviction and sentence.
FACTS
¶ 3. On May 18, 2000, Reta Lawrence was arrested fоr transferring Oxycodone, a controlled substance. Lawrence transferred thirty-seven pills, later determined to be Oxycodone, to undercover police officer Antoine Battle during a police sting operation. Lawrence was indicted by a George County grаnd jury on January 16, 2001, for transfer of a controlled substance. Lawrence was arraigned on April 23, 2001. Her trial began on February 3, 2004, nearly three years after her arraignment.
¶ 4. At trial, Jason Alexis, the Mississippi Crime Laboratory analyst who examined the pills taken during Lawrence‘s arrest, was сalled to testify for the State. Alexis testified that he had tested the pills and found them to contain Oxycodone and aspirin. Defense counsel did not cross
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) The 270-day Statute
¶ 5. Under Mississippi statutory law, a criminal trial must begin no more than 270 days after a defendant‘s arraignment, unless good cause is shown and the court grants leave for the delay.
¶ 6. The State concedes thаt it is responsible for 212 days of the delay between Lawrence‘s arraignment and her trial. Therefore, if the State is responsible for fifty-nine more days, Lawrence‘s trial will have been in violation of the statutory limit. Especially disputed by Lawrence and the State is a set of days in Aрril or July of 2002. This disputed time period would be sufficient to place the case over the statutory limit if construed against the State. The State claims that the disputed delay was the result of the State‘s reasonable belief that Lawrence might negotiate a plea bargain. Lawrence contests this characterization and argues that she should not be held accountable for the time absent a clear explanation in the record of the reason for the delay. At particular issue below was an audiotape that Lawrenсe argued might shed light on the reason behind the 2002 delay. Lawrence has not supplied any additional evidence on appeal regarding the audiotape in question, nor has she otherwise explained the delay. Absent additional evidence showing that the delay was not for good cause, we defer to the trial court‘s finding that good cause existed for the delay. As stated by the Mississippi Supreme Court: “A finding of good cause is a finding of ultimate fact, and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in thе record substantial credible evidence from which it could have been made.” Walton v. State, 678 So.2d 645, 648 (Miss.1996).
¶ 7. Lawrence urges us to find that several of these delays should not count against her because her express agreement to them does not appear in the record. These delаys were all asked for or authorized by Lawrence‘s counsel. Lawrence cites no authority for her position that these delays should not be counted against her. Since we know of no legal precedent that allows Lawrence relief on this point, we find no errоr.
¶ 8. As a last point, Lawrence asks us to reverse and remand her case for a hearing where the State will have to show that there has been no prejudice to Lawrence before it can retry her. She bases this
¶ 9. Lawrence has not appealed on the basis of her сonstitutional right to a speedy trial, so we do not address that issue here.
(2) Alleged Lack of Oath Given to Jury
¶ 10. Lawrence argues that her conviction should be overturned because the trial court failed to administer the petit juror‘s oath (or any other oath) as required by Mississippi Code Annotated section 13-5-71 (Rev.2002).1 Lawrence contends that this alleged lack of an oath violated her fundamental rights and constitutes plain error such that we must reverse. Since Lawrence failed to object to any lack of oath at trial, she must prove that the lack of jury oath constitutes plain error: “This Court has held that a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.” Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss.2001). Plain error is found when there is “an error . . . that . . . rеsulted in a manifest miscarriage of justice. Further, this Court applies the plain error rule only when it affects a defendant‘s substantive/fundamental rights.” Id. (citations omitted). In other words, for Lawrence to prevail on appeal, this Court would have to find: (1) that there was error (in this casе, that there was no oath given); (2) that the error resulted in a manifest miscarriage of justice; and (3) that the error affected one of Lawrence‘s substantive or fundamental rights.
¶ 11. For there to be plain error in Lawrence‘s case, Lawrence would have to show that therе was no oath given to the jury. In order to prove this, Lawrence must overcome a rebuttable presumption that the judge in her case properly performed his duties by placing the jury under oath. Young v. State, 425 So.2d 1022, 1025 (Miss.1983). In Woulard v. State, a boilerplate warning was sufficient to show that the jury had been sworn, even when the record did not reflect whether the jury was sworn. Woulard v. State, 832 So.2d 561, 567 (¶¶ 24-25) (Miss.Ct.App.2002). A similar boilerplate warning was present in Lawrence‘s case, and there are references throughout the record by the judge, prosecutor and even Lawrence‘s own counsel to an oath being given. Therefore, Lawrence has not presented any evidence sufficient to overcome the presumption that the judge properly performed his duties in swearing the jury.
¶ 12. Lawrence contends that Gaskin v. State, 873 So.2d 965 (Miss.2004) requires us to find that there was no oath given to the jury in her case. In Gaskin v. State, a jury was chosen; the defendant then
¶ 13. In Gaskin, the record was completely void of any reference to an oath given to the jury, and in fact, when the trial court was required to supplement the record on the issue of whether an oath had been given to the jury, the unequivocal finding was that no jury had been sworn. Gaskin, 873 So.2d at (¶ 12). The record and the boilerplate oath statement in Gaskin contradicted each other; there is no contradiction in the case at bar. Here, the prosecutor, judge, and Lawrence‘s counsel all referred to the oath given to the jury throughout the proceеdings. The record merely corroborates what the boilerplate warning states.
¶ 14. Since Lawrence has failed to provide evidence sufficient to prove that no oath was administered in her case, no reversal is required.
(3) Oxycodone as a Schedule II Controlled Substance
¶ 15. Lawrence‘s last argument is that her conviction should be reversed because the State failed to prove that Oxycodone is a controlled substance. The statute that Lawrence was charged and convicted under makes it a crime for anyone to “sell, barter, [or] transfer ... a controlled substanсe.”
¶ 16. The Mississippi Supreme Court has previously addressed this issue. In Thomas v. State, a defendant appealed his conviction on the grounds that the State proved only that the defendant possessed Diazepam, but did not prove that Diazepam was a controlled substance. Thomas v. State, 377 So.2d 593, 594 (Miss.1979). The court held:
[I]t is argued that there was no testimony that the drug involved was a controlled substance, and that, therefore, appellant‘s motion for a directed verdict at the conclusion of the state‘s case in chief should have been sustained . . . . We, however, find no merit in the contention. At the date of the alleged crime ... Diazepam was a controlled substance. Proof that the sale and delivery was of diazepam sufficiently showеd a sale and delivery of a controlled substance.
Id. This holding has been affirmed by a more recent Mississippi Supreme Court case. In Hart v. State, 639 So.2d 1313 (Miss.1994), a defendant‘s conviction for possession of marijuana was upheld even though the State had not actually proved that marijuanа was a Class I controlled substance.2 These two cases make it clear that when a defendant is charged with possession of a specific substance that is defined by statute as a “controlled” substance, the State need only prove that the substance is one thаt is listed in the schedules. Therefore, even though the State in Lawrence‘s case did not offer any testimony as to the Schedule II classification of Oxycodone, the State still proved all the essential elements of its case. By proving that the pills that Lawrence transferred were Oxycodone, the State proved that Lawrence transferred a controlled substance, because Oxycodone is in fact a Schedule II controlled substance. The designation of Oxycodone as a controlled substance was not a question of fact for the jury.
¶ 17. Lawrence urges us to consider Copeland v. State as providing support for Lawrence‘s contention that the State was required to prove that Oxycodone is in fact a Schedule II controlled substance. Copeland, however, provides no relief for Lawrence. In Copeland, the State failed to include “3, 4” before the name of the specific substance in question. Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982). Thе court relied on a Fifth Circuit case that determined that the same omission meant that the State had failed to allege a crime since the chemical name without the “3, 4” was not a statutorily controlled substance. Id. at 1336-37 (citing United States v. Huff, 512 F.2d 66 (5th Cir.1975)). The same is not true in Lawrence‘s case. Oxycodone is the full chemical name of the substanсe that Lawrence transferred. Copeland would only provide relief to her if the chemical name listed in Schedule II was different from the chemical name alleged in the indictment and proved at trial. Since it is not, we rely on Thomas and Hart and hold that the State proved all the essential elements necessary for Lawrence‘s conviction.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION FOR TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCE OF THIRTEEN YEARS WITH FIVE YEARS SUSPENDED AND EIGHT TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND A FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.