Vardaman v. State
| Docket Number: | 2006-KA-00734-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-16-2007 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of pseudoephedrine & Conspiracy to manufacture methamphetamine - Sufficiency of evidence - Juror note-taking - URCCC 3.14 - Habitual offender status - Ineffective assistance of counsel - M.R.E. 901 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-16-2005 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: CONVICTION OF COUNT I, POSSESSION OF 250 DOSAGE UNITS OF PSEUDOEPHEDRINE, AND SENTENCE TO LIFE IMPRISONMENT AND COUNT II, CONSPIRACY TO MANUFACTURE METHAMPHETAMINE AND SENTENCE TO LIFE IMPRISONMENT, AND SUCH SENTENCES SHALL NOT BE REDUCED OR SUSPENDED AND HE MAY NOT BE ELIGIBLE FOR PAROLE OR PROBATION District Attorney: David Byrd Clark Case Number: 16366 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES VARDAMAN |
DONNA SUE SMITH |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS | ||
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| Topic: | Possession of pseudoephedrine & Conspiracy to manufacture methamphetamine - Sufficiency of evidence - Juror note-taking - URCCC 3.14 - Habitual offender status - Ineffective assistance of counsel - M.R.E. 901 |
| Summary of the Facts: | James Vardaman was convicted for possession of 250 dosage units of pseudoephedrine and conspiracy to manufacture methamphetamine. He was sentenced as an habitual offender to two consecutive terms of life imprisonment without the possibility of parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Vardaman argues that the evidence at trial was insufficient to uphold his convictions, because there is no proof that he possessed 250 pseudoephedrine pills and no proof that he and either of the defendants conspired to manufacture methamphetamine. A sergeant testified that he had no doubt that he counted 288 pills in the bag recovered from Vardaman’s vehicle. Another detective also testified that the total number of pills was above 250. Thus, there was sufficient testimonial evidence for the jury to conclude that Vardaman was in possession of 250 dosage units of pseudoephedrine. With regard to the conspiracy charge, one of the co-defendants testified that he went into the store, bought two boxes of pseudoephedrine pills and gave them to Vardaman. Additionally, while being interviewed by the police, Vardaman admitted that the purpose of their trip had been to purchase pseudoephedrine. Thus, there was sufficient evidence for a reasonable jury to find that Vardaman was involved in a conspiracy to manufacture methamphetamine. Issue 2: Instruction from judge Vardaman argues that the judge’s instruction to the jury regarding note taking was untimely and prejudiced the jury’s ability to make an informed decision about whether they should take notes. URCCC 3.14 allows the trial judge to decide whether the jury will be given an opportunity to take notes during trial. The rule requires that the judge give both a preliminary instruction and an instruction at the close of all evidence setting forth the appropriate use of juror notes. Here, the court asked if any jurors were interested in taking notes during trial. Six jurors responded that they would like to do so. However, the court did not give the preliminary instruction regarding note taking until after the State had begun to examine its first witness. However, the delay in giving the instruction constituted a harmless error on the part of the trial judge. To warrant reversal on an issue, a party must show both error and a resulting injury. After the judge gave the instruction, no juror changed his mind about whether to take notes. Thus, the short delay in receiving the note taking instruction does not warrant reversal. Issue 3: Habitual offender status Vardaman argues that it was improper for the trial court to sentence him to life imprisonment as an habitual offender, because the State did not show that he served a prison term of one year or more for each of two prior felony convictions. There is evidence that Vardaman served at least one year for each of two prior felonies. The MDOC custodian of records testified that Vardaman served at least one year for the forgery conviction in Lincoln County and that he served at least one year under both his two-year sentence for simple assault on a police officer and his three-year sentence for possession of methamphetamine. The forgery conviction clearly arose out of different circumstances than either the assault or the possession charge. Issue 4: Ineffective assistance of counsel Vardaman argues that he was denied effective assistance of counsel because his attorney failed to alert the judge that the petit jury was never sworn in, submit a cautionary jury instruction on accomplice testimony, submit a cautionary jury instruction advising the jury to not consider testimony about Vardaman’s prior convictions, and object to the admission of the MDOC records. The judgment entered states that the jury was “empaneled and sworn according to law.” Because Vardaman has offered no evidence to rebut the presumption that the trial court properly performed its duty, he has not shown that his counsel’s lack of objection on the issue constituted deficient performance. Because the State’s evidence did not rest solely on the testimony of the co-defendants, a cautionary instruction was not mandatory and Vardaman has not shown that, if it had been given, it would have changed the jury’s verdict. With regard to prior convictions, Vardaman’s attorney filed a pre-trial motion to prevent any statements relating to Vardaman’s prior convictions to be presented at trial and immediately objected when a witness testified that he had “done time” with Vardaman. The court gave a curative instruction and told the jury to not consider the testimony for any purpose in the case. The failure to request another jury instruction on this issue does not rebut the presumption that counsel’s actions were reasonable. With regard to the MDOC records, the records were authenticated through the testimony of a witness with knowledge, an acceptable method of authentication under M.R.E. 901. Her testimony was a sufficient manner of authentication. |
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