SHIRLEY WARREN a/k/a SHIRLEY OLIVER WARREN a/k/a SHIRLEY NICHOLS WARREN a/k/a SHIRLEY OLIVER v. STATE OF MISSISSIPPI
NO. 2013-CT-00926-SCT
IN THE SUPREME COURT OF MISSISSIPPI
03/31/2016
ON WRIT OF CERTIORARI; DATE OF JUDGMENT: 05/01/2013; TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.; TRIAL COURT ATTORNEYS: MICHAEL GUNTHER HOWIE, JAY HOWARD, ANDY DAVIS; COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT; ATTORNEY FOR
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Shirley Warren was convicted in the Circuit Court of Winston County of possession of a controlled substance in a correctional facility. The trial court sentenced her to seven years in the custody of the Mississippi Department of Corrections, with four years suspended and five years of supervised probation. The Court assigned Warren’s appeal to the Court of Appeals, which ruled that Warren’s indictment was fatally defective because it failed to identify the controlled substance that Warren allegedly possessed. Warren v. State, 2015 WL 326660, at *2 (Miss. Ct. App. Jan. 27, 2015). The Court of Appeals reversed and remanded for further proceedings. Id.
FACTS
¶3. On June 9, 2012, Warren visited the Winston-Choctaw Regional Correctional Facility in Winston County, Mississippi. When she checked in with the visitation officer, two corrections officers escorted her to a restroom for a search of her person. As Warren lifted her shirt, one of the corrections officers, Theresa Carter, saw something protruding from the waistband of her pants. Carter pulled the object out and discovered it was a package of pills. The pills were inside a plastic bag that had been taped to the inside of Warren’s waistband. Carter called the warden, Timothy Palmer, and gave him the package of pills.
¶4. Palmer placed Warren under arrest and transported her to the booking area. In the booking area, Palmer told the booking officer that he was going to identify the pills online when Warren stated spontaneously that the pills were Lortab and Xanax. Palmer testified that he submitted the pills to a crime laboratory. William Smith, a former director of forensic chemistry at the Columbus Forensic Laboratory, would later testify that his analysis of the pills revealed that four were Lortab (hydrocodone), a Schedule III controlled substance,1 and four were Xanax (alprazolam), a Schedule IV controlled substance.
¶5. On September 26, 2012, a grand jury indicted Warren for possession of a controlled substance in a correctional facility. She filed a motion to dismiss, asserting that the indictment was defective for failing to identify the controlled substances she allegedly possessed. Warren also moved to suppress Smith’s testimony and the crime lab test results because the State had not furnished the defense with anything showing Smith’s certification or the crime lab’s accreditation. She argued that the omissions rendered the test results inherently unreliable. The trial court denied Warren’s motions.
¶6. At the trial, Smith testified over Warren’s objection to his qualifications. The trial court denied Warren’s motion for a directed verdict, finding that the State had presented sufficient evidence to meet its burden of proof. Warren rested her case without presenting any evidence. The jury found Warren guilty, and the trial court sentenced her to seven years in the custody of the Mississippi Department of Corrections, with four years suspended and five years of supervised probation. The trial court denied Warren’s post-trial motion for a judgment notwithstanding the verdict or a new trial.
¶7. Warren appealed, arguing that the trial court had erred by (1) denying her motion to dismiss or void the indictment; (2) denying the motion to suppress; (3) finding that Smith was qualified to testify about the test results; and (4) denying the motions for a directed verdict, judgment notwithstanding the verdict, or a new trial. Warren also argued that cumulative errors had occurred that amounted to reversible error, entitling her to a new trial. We assigned Warren’s appeal to the Court of Appeals. The Court of Appeals held that
DISCUSSION
I. THE INDICTMENT WAS SUFFICIENT TO CHARGE WARREN WITH POSSESSION OF A CONTROLLED SUBSTANCE IN A CORRECTIONAL FACILITY.
¶8. The crime of possession of a controlled substance in a correctional facility is codified at
SHIRLEY NICHOLS WARREN
On or about June 9, 2012, in Winston County, Mississippi and within the jurisdiction of this Court, did wilfully, unlawfully, feloniously, and knowingly or intentionally, and without authority of law, bring to, or be in possession of, a controlled substance in the Winston Choctaw County Correctional Facility, in violation of Section 47-5-198(1) of the Mississippi Code of 1972, as amended and against the peace and dignity of the State of Mississippi.
¶9. Warren argues that her indictment was insufficient to charge her with possession of a controlled substance in a correctional facility because it did not identify the substance she allegedly had possessed. In a pretrial hearing before the trial court, Warren argued that the identity of the controlled substance is an essential element of the crime, and that the defective indictment left her unable to prepare a defense. The trial court ruled that the indictment was sufficient because it tracked the language of the statute. The trial court noted that the State had provided the identity of the controlled substances to Warren in discovery.
¶10. “[T]he purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So. 2d 254, 265 (¶31) (Miss. 2006) (citing Brown v. State, 890 So. 2d 901, 918 (¶61) (Miss. 2004)). “[A]n indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Young v. State, 119 So. 3d 309, 313 (¶11) (Miss. 2013).
¶11. The Court has held that an indictment that tracks the language of the statute is generally sufficient to inform the accused of the nature and cause of the accusation. King v. State, 580 So. 2d 1182, 1185 (Miss. 1991). Warren’s indictment undisputedly tracked the language of the statute.
¶12. In so holding, the Court of Appeals cited its opinion in Hampton v. State, 860 So. 2d 827 (Miss. Ct. App. 2003). In Hampton, the defendant argued that his indictment for sale of an illegal narcotic under
¶13. The Court of Appeals’ reasoning failed to consider the differences between
¶14. The statute applicable to Watkins’s possession-with-intent charges, which all involved Schedule II drugs, stated the following:
(a) Except as authorized by this article, it is unlawful for any person to 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; or
. . .
(b) Except as otherwise provided in subsections (f) and (g) of this section or in Section 41–29–142, any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set in Sections 41–29–113 and 41–29–115, . . . such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000) nor more than One Million Dollars ($1,000,000) or both; . . . .
¶15. In contrast,
Under Mississippi law, “the penalty for the sale of cocaine is the same regardless of the quantity sold.” Smith v. State, 973 So. 2d 1003, 1007 (¶10) (Miss. Ct. App. 2007); see also
Miss. Code Ann. § 41-29-139(a)(1) ,(b)(1) . Therefore, “the amount of cocaine sold is not an essential element of the crime.” Smith, 973 So. 2d at 1007 (¶10) (citing Williams v. State, 821 So. 2d 883, 887 (¶16) (Miss. Ct. App. 2002)). As such, an indictment is not defective
for failing to list a quantity of cocaine in the context of a sale of cocaine charge. Id. at 1006–07 (¶10). In fact, Mississippi law is clear that a quantity or amount of cocaine is not required to be listed in the indictment for a charge of sale of cocaine.
Id. Because neither the crime nor the penalty under
¶16. We address Warren’s argument before the Court of Appeals that Brewer v. State, 351 So. 2d 535 (Miss. 1977), and Copeland v. State, 423 So. 2d 1333 (Miss. 1982), require that an indictment for a drug crime must identify the controlled substance. In Brewer, the indictment charged Brewer with the delivery of “a certain controlled substance, to-wit: preludin.” Brewer, 351 So. 2d at 536. Evidence at trial showed that preludin contained the Schedule II controlled substance phenmetrazine, and the trial court required the State to amend the indictment to allege that preludin contained phenmetrazine. Id. We held that amending the indictment had been improper because the indictment was insufficient to charge a crime. Id. The Court found that, because preludin was not listed as a controlled substance, “a comparison of the indictment to the criminal statute would not disclose that a crime was charged.” Id. at 537. Similarly, in Copeland, the Court held that an indictment had failed to charge a crime because it had stated that Copeland had sold “a quantity of methylenedioxy amphetamine, a controlled substance,” and methylenedioxy amphetamine was not a controlled substance. Copeland, 423 So. 2d at 1337.
¶17. We reject Warren’s argument that Brewer and Copeland require that Warren’s indictment identify the controlled substance she allegedly possessed. Both Brewer and Copeland found error because the indictments named drugs that were not controlled substances. Thus, each indictment failed to state a crime. Contrast today’s case, in which Warren’s indictment did not misidentify a drug but charged her with possession of a controlled substance in a correctional facility. Under
¶18. The Court also rejects Warren’s argument that her defense was prejudiced by the failure to specify the controlled substance in the indictment. As we have held, the identity of the controlled substance under
¶19. Finally, we observe that the identity of the controlled substance is subject to mandatory discovery under
(1) . . . a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;
(2) Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
(4) Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
(5) Any physical evidence and photographs relevant to the case or which may be offered in evidence . . . .
II. THE TRIAL COURT DID NOT ERR BY DENYING WARREN’S MOTION TO SUPPRESS SMITH’S TESTIMONY FOR DISCOVERY VIOLATIONS.
¶20. Warren filed a motion for discovery requesting the mandatory
¶21. Warren’s motion to suppress argued that Smith’s potential use as a witness and the crime lab test results had not been disclosed at the appropriate time. Further, Warren argued that the testimony and test results were unreliable and inadmissible because the State had not submitted documentation showing that Smith and the crime lab held the proper accreditations. After a hearing, the trial court denied the motion to suppress, finding that Warren could voir dire Smith on his qualifications to testify under
¶22. We hold that the issue lacks merit. Smith’s curriculum vitae and the crime lab’s certification and protocols were not within the scope of Warren’s discovery requests or required discovery under
¶23. The trial court found Smith qualified to testify in the field of drug analysis and identification based on his training, education, and experience under
¶24.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
¶25. Warren argues that the trial court abused its discretion by finding Smith qualified because, during voir dire, he never testified that his methods were generally accepted in the scientific community or that his work was subject to peer review. Warren complains that Smith admitted he was not certified by the American Board of Criminalistics, the only entity in the United States that certifies crime lab analysts. Also, Smith did not produce his certificate for attending an FBI course. Warren points to Smith’s testimony that he was not certified by the Mississippi Crime Laboratory and his admission that the Columbus Crime Laboratory was not accredited by the American Society of Crime Lab Directors (ASCLD) and was not required to follow the ASCLD guidelines known as the ISO/IEC 17025.
¶26. The voir dire record shows that Smith worked as the director of forensic chemistry at the Columbus Forensic Laboratory for five years. In February 2013, he left that employment to work as a shift supervisor for the Columbus Police Department. At the lab, Smith’s sole duty was to analyze and determine the content of submitted evidence for drug identification. He had a bachelor’s degree in biology and chemistry from the University of Southern Mississippi, attended and completed a course at the FBI Academy in forensic mass spectrometry, and completed a Drug Enforcement Administration (DEA) drug chemist course. He also completed forensic drug analysis coursework through the West Virginia University and coursework with Thermo Fisher Scientific in Madison, Wisconsin. The coursework involved use of the gas chromatograph mass spectrometer, which Smith testified is the “gold standard for the identification of unknown compounds.” Smith was certified to operate testing instruments including the gas chromatograph mass spectrometer, and he had tested more than 25,000 samples during his five years with the lab. Given Smith’s education, experience, and training in drug analysis, we discern no abuse of discretion in the trial court’s finding that Smith was qualified to testify.
¶27. Warren also argues that the trial court should not have allowed Smith’s testimony
¶28. Additionally, Warren makes a one-sentence argument that the admission of Smith’s testimony violated her right of confrontation under the
IV. THE TRIAL COURT DID NOT ERR BY DENYING WARREN’S MOTIONS FOR A DIRECTED VERDICT, JUDGMENT NOTWITHSTANDING THE VERDICT, OR A NEW TRIAL.
¶29. Warren challenged the sufficiency of the evidence with her motion for a directed verdict at the end of the State’s case, and later in her post-trial motion for judgment notwithstanding the verdict (JNOV). “On review of the sufficiency of the evidence, this Court considers the trial court’s ruling at the last time the sufficiency of the evidence was challenged.” Wales v. State, 73 So. 3d 1113, 1120 (¶19) (Miss. 2011). Accordingly, we review the trial court’s denial of Warren’s motion for JNOV.
¶30. In reviewing the denial of a motion for JNOV, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The Supreme Court must reverse and render if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Bush, 895 So. 2d at 843 (¶16) (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). If the evidence was of such quality and weight that, applying the burden of proof of beyond a reasonable doubt, “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of
¶31. Under
¶32. Warren also attacked the weight of the evidence by filing a motion for a new trial, which was denied by the trial court. When reviewing a challenge to the weight of the evidence, the Court will not overturn a verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). A motion for a new trial “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So. 2d at 844 (¶18) (quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947 (¶18) (Miss. 2000)). The court must weigh the evidence in the light most favorable to the verdict. Bush, 895 So. 2d at 844 (¶18).
¶33. The evidence presented at Warren’s trial preponderated in favor of the verdict, not against it. The State showed that, during Warren’s visit to a correctional facility, a corrections officer discovered a bag of pills hidden in the waistband of Warren’s pants, that Warren identified the pills as Lortab and Xanax, and that testing revealed the pills found on Warren to be Lortab and Xanax, both controlled substances. We hold that the verdict was not against the overwhelming weight of the evidence.
V. BECAUSE NO ERRORS OCCURRED AT WARREN’S TRIAL, THERE WAS NO CUMULATIVE ERROR.
¶34. Warren argues that errors occurred at her trial that, considered cumulatively, constitute reversible error. “Under the cumulative-error doctrine, individual harmless errors may be aggregated with other errors to create reversible error ‘where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.’” Osborne v. State, 54 So. 3d 841, 848 (¶27) (Miss. 2011). We have identified no errors in Warren’s trial. Because “where there is no error in part, there can be no reversible error to the whole,” the issue is without merit. Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007).
¶35. We hold that Warren’s appellate issues are without merit. Warren’s indictment sufficed to charge her with possession of a controlled substance in a correctional facility. Warren’s argument that the trial court should have suppressed Smith’s testimony due to a discovery violation is without merit. The trial court did not abuse its discretion by finding that Smith was qualified to testify. The evidence sufficed to support the verdict, and the verdict was not against the overwhelming weight of the evidence. Finally, because the Court has discerned no error, there can be no cumulative error. The judgment of the Court of Appeals is reversed, and the judgment of the Circuit Court of Winston County is reinstated and affirmed.
¶36. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE IN A CORRECTIONAL FACILITY AND SENTENCE OF SEVEN (7) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR (4) YEARS SUSPENDED AND FIVE (5) YEARS ON SUPERVISED PROBATION, WITH CONDITIONS, IS REINSTATED AND AFFIRMED. THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. APPELLANT SHALL PAY A FINE IN THE AMOUNT OF $1,000 AND ALL COURT COSTS AND ASSESSMENTS. THESE AMOUNTS ARE TO BE PAID TO THE CIRCUIT CLERK OF WINSTON COUNTY, MISSISSIPPI, AT THE RATE OF $100 PER MONTH WITH THE FIRST PAYMENT BEING PAID WITHIN THIRTY (30) DAYS OF RELEASE FROM INCARCERATION. THIS SUM IS TO BE PAID EACH MONTH UNTIL IT IS PAID IN FULL.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND BEAM, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. MAXWELL, J., NOT PARTICIPATING.
KITCHENS, JUSTICE, DISSENTING:
¶37. Because Shirley Warren was deprived of her federal and state constitutional rights to notice of the nature and cause of the accusation against her, I respectfully dissent. I would hold that an indictment under
¶38. The
¶39. Warren was indicted for violating
¶40. The majority writes that an indictment that simply tracks the statute generally will be held to provide sufficient notice. But this ignores the requirement that, in addition to listing the essential elements of the crime, an indictment must contain sufficient facts to inform the defendant fairly of the charge against which she must defend, and must be specific enough to enable her to plead double jeopardy if she is prosecuted for the same offense in the future. Hardy, 137 So. 3d at 301. The majority finds that, because
¶41. A defendant charged with possession of a controlled substance in a correctional facility cannot prepare a defense that the possession was authorized by law without knowing the identity of the controlled substance the State will attempt to prove the defendant possessed. State and federal law are replete with examples of substances defined as controlled. Mississippi’s Uniform Controlled Substances Law lists more than 350 individual substances classified as controlled substances.
¶42. I would hold that, because the indictment did not identify the controlled substance which Warren allegedly possessed,
KING, J., JOINS THIS OPINION.