Smith v. State
| Docket Number: | 2005-KA-01465-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-06-2007 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of dextropropoxyphene - Weight of evidence - Hearsay - M.R.E. 801(c) - Defective indictment Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Non Participating Judge(s): CARLTON, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-14-2005 Appealed from: NESHOBA COUNTY CIRCUIT COURT Judge: Marcus D. Gordon Disposition: CONVICTION OF SALE OF A SCHEDULE IV CONTROLLED SUBSTANCE AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: MARK SHELDON DUNCAN Case Number: 05-CR-070-NS-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | WENDY MICHELLE SMITH |
EDMUND J. PHILLIPS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DESHUN TERRELL MARTIN |
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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 dextropropoxyphene - Weight of evidence - Hearsay - M.R.E. 801(c) - Defective indictment |
| Summary of the Facts: | Wendy Smith was convicted of the sale of dextropropoxyphene and sentenced to fifteen years. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Smith argues that the verdict was against the weight of the evidence, because she sold Darvocet at another person’s direction who would have physically harmed her had she refused to do so. Where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal. Where circumstantial evidence contradicts otherwise uncontradicted testimony, that contradiction creates a question for jury resolution. The jury heard evidence that Smith did not appear frightened at the moment of the sale, that she successfully asserted a claim for money otherwise going to the man she claimed placed her in imminent fear of physical harm, that she later left that man without incident and probably could have at any time, and that she voluntarily sold Darvocet because she hoped to profit from it. As such, it was certainly within the province of the jury to resolve the issue with a conviction. Issue 2: Hearsay Smith argues that the court improperly admitted hearsay testimony during the deputy’s testimony. Under M.R.E. 801(c), hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The deputy’s testimony was an out-of-court statement made not by the deputy but by neighbors. It is questionable as to whether the statement was made to prove the truth of the fact that Smith’s boyfriend was living in bars or to prove the truth of the fact that the deputy could not locate him. Under either interpretation, nothing about him being unlocatable or living in bars has any prejudicial effect upon Smith. Issue 3: Defective indictment Smith argues that the circuit court should have granted her motion for a directed verdict because the indictment alleged that she sold Darvocet to “Mississippi Bureau ofNarcotics Informant #224-2004”, but the State did not prove that “Mississippi Bureau of Narcotics Informant #224-2004” actually referred to the informant in this case. Smith’s defense counsel failed to specify a variance in the indictment as grounds for the motion for directed verdict. In addition, the testimony at trial showed the informant to be the confidential informant named in the indictment. |
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