Jackson v. State
| Docket Number: | 2004-KA-01460-COA Linked Case(s): 2004-KA-01460-COA ; 2004-CT-01460-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-27-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of marijuana - Sufficiency of evidence - Judicial recusal - Change of venue - Prosecutorial misconduct - Jury misconduct - Admission of videotape - Continuance - Jury instructions - Expert testimony - Peremptory challenges - Preservation of evidence - Prior bad acts - M.R.E. 404(b) - Prior testimony - M.R.E. 804(a)(5) - M.R.E. 805 - M.R.E. 804(b)(1) - Admission of testimony - M.R.E. 608(a) - Cruel and unusual punishment Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Non Participating Judge(s): KING, C.J., AND IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-12-2004 Appealed from: Amite County Circuit Court Judge: Forrest Johnson Disposition: CONVICTED OF SALE OF MARIJUANA WITHIN A CORRECTIONAL FACILITY AND SENTENCED TO THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $25,000 AND DISBARMENT. District Attorney: DEE BATES Case Number: 03-188MS |
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| Party Name: | Attorney Name: | |||
| Appellant: | JOHN EDWARD JACKSON, JR. |
CHARLES E. MILLER |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. DANIEL HINCHCLIFF |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of marijuana - Sufficiency of evidence - Judicial recusal - Change of venue - Prosecutorial misconduct - Jury misconduct - Admission of videotape - Continuance - Jury instructions - Expert testimony - Peremptory challenges - Preservation of evidence - Prior bad acts - M.R.E. 404(b) - Prior testimony - M.R.E. 804(a)(5) - M.R.E. 805 - M.R.E. 804(b)(1) - Admission of testimony - M.R.E. 608(a) - Cruel and unusual punishment |
| Summary of the Facts: | John Jackson, Jr., a licensed Mississippi attorney, was convicted of the sale of marijuana within a correctional facility. The court sentenced Jackson to three years in the Mississippi Department of Corrections’ Intensive Supervision Program, ordered him to pay a $25,000 fine and all court costs, and disbarred him. Jackson appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Jackson argues that the evidence against him was insufficient to sustain a conviction because the prosecution’s case was based entirely on circumstantial evidence, the prosecution failed to prove that the inmate to whom Jackson allegedly sold the marijuana was a reliable confidential informant, and the inmate’s status as a prior convicted felon and Jackson’s accomplice renders his uncorroborated testimony insufficient to support Jackson’s conviction. This is not a circumstantial evidence case, because the inmate was an eyewitness. It is in the context of the issuance of search warrants that a confidential informant must be proven reliable. That was not the context in this case. Finally, the inmate was working with Lincoln County law enforcement, so he could not have been an accomplice. Issue 2: Judicial recusal Jackson argues that the judge appointed to preside over his trial should have recused himself because of a fax he received during Jackson’s first trial. He also argues that the judge exhibited a cumulative pattern of partiality towards the prosecution. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. Jackson only speculates that the judge could not have been impartial, but there is nothing among the record that suggests the judge was or could have been viewed as partial to the prosecution. Mere speculation is insufficient to raise reasonable doubt as to the validity of the presumption that the trial judge was qualified and unbiased. In addition, there is no pattern of bias in a series of correct decisions by the judge. Issue 3: Change of venue Jackson argues that the court should have transferred venue from Amite County to some other unspecific county. The impaneled jury members all stated that they would serve as fair and impartial jurors. Additionally, the court stated that, of the relatively few members of the venire who had read an article about the case, none of those veniremen actually sat on the jury. Therefore, there was no error. Issue 4: Prosecutorial misconduct Jackson argues that the district attorney’s office engaged in witness tampering, discovery violations, and a pattern of bias against Jackson. There is absolutely no evidence whatsoever to support Jackson’s claim that the prosecution threatened to prosecute one of the defense witnesses for perjury or that the witness failed to appear under the threat of prosecution. With regard to discovery violations, Jackson failed to object at trial thereby waiving the issue. Jackson cites no authority for the concept that a prosecutor must be unbiased towards a criminal defendant. Issue 5: Jury misconduct Jackson argues that several members of the jury started deliberations prior to presentation of the defense’s case. Jackson’s argument is no more than rank speculation. Issue 6: Admission of videotape Jackson argues that the corrections officer exceeded the scope of his authority in conducting an investigation of a matter unrelated to supervision of probationers or parolees under the jurisdiction of the MDOC and because the investigation was illegal, Jackson’s arrest was illegal. Therefore, any evidence collected as a result of his illegal arrest should have been excluded as “fruit of the poisonous tree.” The issue is barred from review because he fails to cite any relevant authority. Issue 7: Continuance Jackson argues that the court erred in failing to grant a continuance when his witness failed to appear as subpoenaed. Given the fact that Jackson did not request a continuance to secure a transcript or an audiotape of the witness’s prior testimony, despite the circuit court’s repeated prompting, the court did not abuse its discretion in denying a continuance. Issue 8: Jury instructions Jackson argues that the court improperly declined to instruct the jury per three of his proposed jury instructions. The accomplice instruction was properly rejected because there was no evidence that the inmate was Jackson’s accomplice at the time Jackson was videotaped transferring marijuana to him. The circumstantial evidence instruction was properly rejected because the State presented direct evidence in the form of the inmate’s testimony. An instruction on bias was properly rejected because it was a misstatement of the law and is covered elsewhere in other instructions. Issue 9: Expert testimony Jackson argues that the prosecution failed to timely list its expert witness on surveillance video enhancement in discovery. However, Jackson did not object to the testimony on the basis of untimely discovery. Jackson also argues that the expert’s testimony exceeded the scope of Rule 702. However, at no point did Jackson object to the expert’s testimony on the basis that it was beyond the scope of her expertise or that it was improper opinion testimony. Issue 10: Peremptory challenges Jackson argues the prosecution used all of its peremptory challenges on black jurors. That is not correct. At the time Jackson made his Batson objection, the prosecution had used four of its six peremptory challenges. Of those four peremptory challenges, the prosecution exercised two peremptory challenges against black females, one against a black male, and one against a white female. Additionally, the prosecution accepted one black male. The prosecution’s reasons for exercising its peremptory challenges were sufficiently race neutral. They included that a family member was currently involved in a criminal proceeding, that a juror displays an unfriendly attitude towards the prosecution, that a juror had previously sat on a jury that found the defendant not guilty, and that a juror was related to the defendant’s attorney. Issue 11: Preservation of evidence Lincoln County authorities recorded meetings between Jackson and the inmate in which Jackson did not pass any marijuana, but the videotapes were not preserved. Jackson objected to destruction of the tapes. To find a due process violation by the State in a preservation of evidence case the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and the prosecution's destruction of the evidence must have been in bad faith. The tapes were evidence of inconsistent behavior on a separate occasion, but were not directly contradictory to the evidence of Jackson’s guilt as he claims. Also, Jackson presented testimony from multiple witnesses who all testified that the videotapes at issue contained no evidence of Jackson passing marijuana to the inmate, and there is no indication that the prosecution destroyed the tapes to conceal evidence. Issue 12: Prior bad acts Jackson argues that the jury heard inadmissible prior bad acts. However, the prosecutor clearly stated that he did not intentionally refer to the clandestine acts of bringing cigarettes or cell phones to prisoners as “illegal” and the circuit court quickly admonished the jury that those acts may have been administrative violations of jail policy, but they were not illegal acts. In addition, the evidence was admissible under M.R.E. 404(b) for multiple purposes. It was necessary to show the jury the full and complete sequence of events, it was admissible as evidence of Jackson’s motive of financial gain, and it served as evidence of Jackson’s opportunity during his attorney/client meetings with Watson. Issue 13: Prior testimony Jackson argues that the court erred when it did not allow him to present a witness’s testimony from Jackson’s first trial that ended in a mistrial, because the witness was unavailable in Jackson’s second trial within the context of M.R.E. 804(a)(5). Jackson attempted to procure the witness’s attendance, but he was not able to do so by process. Jackson also appears to have attempted to secure the witness’s attendance by other reasonable means. Reasonable means would seem to include further attempts at location. Jackson’s attorney repeatedly informed the circuit court that his investigators constantly tried to locate the witness. Therefore, the witness was unavailable as contemplated by M.R.E. 804(a)(5). Though he knew as early as the first day of trial that the witness may not appear, Jackson never indicated that he asked a court reporter to transcribe the prior testimony, he did not attempt to submit an audio or video recording of the prior testimony, and he did not ask for a continuance to have a transcript prepared. Rather, Jackson tried to submit testimony from two investigators who would have testified as to what the witness told them. If Jackson’s investigators attempted to testify that the witness told them that the inmate told him to lie, that testimony would be hearsay within hearsay. Because Jackson does not argue that either the circuit court erred when it did not allow testimony from his investigators, or each part of what would have been hearsay within hearsay conforms with an exception to the hearsay rule, he does not meet the requirements for admission under M.R.E. 805. In addition, the testimony is not admissible under M.R.E. 804(b)(1). Issue 14: Admission of testimony Jackson argues that the court erred when it prohibited Jackson’s presentation of two witnesses. With regard to one of the witnesses, he had not been served with a subpoena to appear before the circuit court. In addition, even if the witness would have testified that an officer was biased against Jackson based on their confrontation over pre-sentence investigation reports, that testimony would not be opinion evidence regarding the officer’s reputation for untruthfulness. It is not the type of character evidence contemplated by M.R.E. 608(a). Issue 15: Cruel and unusual punishment Jackson argues that the sentence of three years in the MDOC’s house arrest program or its intensive supervision program and fine of $25,000 was unconstitutionally cruel and unusual punishment. When sentences are within the guidelines provided for punishment by the legislature, they will not be considered cruel and unusual punishment. The circuit court sentenced Jackson to the maximum fine and the minimum sentence, yet both were within the statutory limits. |
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