Pettit v. StatePettit v. State
William “Hank” Pettit was convicted for the sale of Dilaudid in Pontotoc County Circuit Court and was sentenсed to twenty (20) years in the custody of the Mississippi Department of Corrections. On appeal Pettit raises five (5) errors. Finding these meritless, we affirm the conviction and sentence.
In August 1986, Tim Rutledge and Mike Berthay were working out of the Tupеlo office of the Mississippi Bureau of Narcotics. They were at that time approached by one Randy Paine, who offered to assist them in setting up drug purchases in the Pontotoc area. On August 15, 1986, Berthay and Paine went to thе home of Melanie Keith, located on Old Highway 41, south of Pontotoc. Berthay was wearing a wire or radio transmitter under his shirt. Hank Pettit was at the Keith house when they arrived. Melanie Keith arrived a few minutes later, stopping outside to talk to Berthay and Paine. The discussion turned to Dilaudid, with Berthay and Keith haggling over the price. According to Berthay, Keith continually referred to a “he”
Melanie Keith testified that Hank Pettit was supрlying drugs to her and setting the price of the drugs. On the afternoon of August 15, Hank and his ex-wife Cathy Pettit came over to Keith‘s house. According to Keith, the Pettits had been coming by every day or so for a couple of weeks because оf the regular stream of drug customers stopping by. Keith further testified that Hank Pettit asked her about the two potential customers when he first arrived. Keith said that she discussed the price with Paine and Berthay, went inside to confirm it with Hank Pettit, camе out and told the two that it would have to be $32.50/tablet, and went back in to tell Pettit that they had accepted the price. According to Keith, Pettit did not want anyone to see him handle the tablets, so he poured five tablets into thе kitchen drawer and left them there for Berthay to pick up.
Hank Pettit testified that he and his ex-wife were at Melanie Keith‘s house only to ask her about a job for Cathy Pettit at the furniture upholstery factory where Keith worked. Pettit admittеd that Melanie Keith was selling drugs in the house that day, but said that when he realized it he fled to the bathroom and locked himself in. He denied that he had anything to do with the sale of Dilaudid that day at Melanie Keith‘s house. Cathy Pettit testified that the Dilaudid was hers, that she had given them to Melanie Keith, and that she had received the money left by Berthay.
Mike Berthay was called as a rebuttal witness for the State. He denied that he had seen any transfer of any substance from Cathy Pettit to Mеlanie Keith. On cross-examination Berthay denied that he and Randy Paine and Hank Pettit had smoked a marijuana cigarette. Berthay denied that it was part of his undercover work to simulate smoking marijuana, and denied that he had evеr simulated smoking marijuana. On redirect Berthay went into further detail about the Bureau‘s rigorous prohibition on the use of drugs.
The State rested after Berthay‘s testimony. The instructions were discussed. Before the jury was brought back in, Hank Pettit asked to сall a surrebuttal witness,
During his closing argument, defense counsel encouraged the jury to listen to the tape made via the body wire worn by Agent Berthay, arguing that the tape would help substantiate Hank Pettit‘s version of the drug sale. The trial court interrupted, “Just a moment. They can‘t listen to the tape any more than they already have. It does not go back intо the jury room any more than a transcript of what other witnesses said.” The tape recording, State‘s Exhibit 1, was not submitted to the jury during its deliberations.
I. DID THE TRIAL COURT ERR WHEN IT REFUSED TO ALLOW THE TAPE RECORDING MADE BY THE STATE AND INTRODUCED INTO EVIDENCE TO GO TO THE JURY DURING DELIBERATIONS?
Hank Pettit first argues that the trial court erred when it refused to allow the tape made via Agent Bеrthay‘s body wire, State‘s Exhibit 1, to be submitted to the jury, as the other exhibits were. The trial court would not allow this, likening the tape to a transcript of trial testimony.
The court shall permit the jury, upon retiring for deliberation, to take to the jury room a copy of the instructions and exhibits and writings which have been received in evidence, except depositions.
Pettit relies on Coulter v. State, 506 So.2d 282 (Miss. 1987). In Coulter, the appellant confessed to the crime in question, and the confession was transcribed by the police. The written confession was introduced into evidence and was carried into the jury room during dеliberations. Relying on
We hold that, considering Coulter and the language of 5.14, the rule is, within reason, mandatory. The trial court would have discretion to withhold exhibits that might be dangerous or prone to destruction. There is the possibility that, even though a tape recording is submitted to the jury, the jury will not ask to have it played. The trial court would also have broad discretion to regulate the presentation of the tape recording to the jury, such as limiting the number of replays.
State‘s Exhibit 1 is of poor quality. The jury heard it once in its entirety, and then heard certain parts a second time. Though the trial court erred when it refused to let the tape recording go to the jury with the other exhibits, the error was harmless under the circumstances.
II. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW JEFF SIMMONS TO TESTIFY IN SURREBUTTAL?
Cathy Pеttit testified that she gave the Dilaudid to Melanie Keith right in front of Mike Berthay. Berthay was called by the State in rebuttal, and he testified that he had not seen any transfer of any substance from Cathy Pettit to Melanie Keith. On cross-examination, Berthay denied that he and Randy Paine and Hank Pettit had smoked a marijuana cigarette. Berthay also denied that it was part of his undercover role to simulate smoking marijuana, and he denied that he had ever simulated
The State argues that
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the сharacter for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his рrivilege against self-incrimination when examined with respect to matters which relate only to credibility.
For a specific application of Rule 608(b), the State cites Pinson v. State, 518 So.2d 1220 (Miss. 1988). In Pinson, the husband of a rape victim had testified that his marriage had broken up because of the rape, and that he was sepаrated from his wife and not living with another woman. The defense attempted to call a witness who would have testified that the husband was living with another woman. The trial court would not allow the testimony. This Court affirmed, relying in part on Rule 608(b):
Specifiс instances of conduct under our Rules of Evidence may not be proved by extrinsic evidence for impeachment purposes; they may only be inquired about on cross-examination. J.W. denied seeing any woman other than his wife when he was questioned about it on cross-examination. The defense may go no further.
Pinson, 518 So.2d at 1223. The State also relies on Pinson for the proposition that Simmons‘s testimony would amount to impeachment on a collateral matter and was thus prohibited. Pettit argues that, considering the detail that the State went into on redirect with Berthay concerning the MBN‘s policy concerning its agents and controlled substances, that the matter cannot be considered a collateral one. It would have bеen preferable under the circumstances of this case for the trial court to have allowed Jeff Simmons to testify, but the court‘s action does not amount to reversible error. We have considered the other issues raised by the Appellant and find them without merit. The conviction and sentence of Hank Pettit are affirmed.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and BLASS, JJ., concur.