Berry v. State
| Docket Number: | 2008-KA-02092-COA Linked Case(s): 2008-KA-02092-COA ; 2008-CT-02092-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-01-2011 Opinion Author: King, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Possession of cocaine - Confidential informant - Hearsay - M.R.E. 801(c) - Continuance - Admission of evidence - Business records exception - M.R.E. 803(6) - Habitual offender status - Prosecutor's statements - Inconsistent statements Judge(s) Concurring: Lee, P.J., Myers, P.J., Irving, Barnes, Ishee, Roberts and Carlton Non Participating Judge(s): Maxwell, J. Concur in Part, Concur in Result 1: Griffis, J. Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-10-2008 Appealed from: Hinds County Circuit Court Judge: Bobby Burt DeLaughter Disposition: Conviction of Possession of Cocaine and Sentenced as a Habitual Offender to Life Without Eligibility for Parole or Probation in the Custody of the Mississippi Department of Corrections. District Attorney: Robert Shuler Smith Case Number: 07-0-641 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Marvin Berry |
JULIE ANN EPPS, E. MICHAEL MARKS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Possession of cocaine - Confidential informant - Hearsay - M.R.E. 801(c) - Continuance - Admission of evidence - Business records exception - M.R.E. 803(6) - Habitual offender status - Prosecutor's statements - Inconsistent statements |
| Summary of the Facts: | Marvin Berry was convicted of possession of cocaine. Berry was sentenced as a habitual offender and received a life sentence without the benefit of parole or early release. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Confidential informant The State orally moved to preclude the defense from cross-examining the witnesses on the informant’s identity or make any reference as to why the informant was not produced or called by the State to testify. The motion was granted, and Berry argues the trial court erred in granting the motion, because in doing so, the court denied him his constitutional right to confront and cross-examine each witness and his right to present a defense. It is not error for the trial court to determine that revealing the identity of the informant was unnecessary when the informant was not a material witness and not inclined to testify at trial. The record does not suggest that the informant was a material witness. A material witness is one who participated in the crime or was an eyewitness to the offense. The arresting police officers testified that the informant was kept within the bathroom of the hotel room for safety reasons and did not witness any of the events leading to Berry’s arrest. Furthermore, neither the State nor Berry indicated that they would call the informant at trial. Issue 2: Hearsay Berry argues the trial court erred in admitting hearsay evidence. Hearsay statements are generally not admissible under M.R.E. 801(c). However, to the extent necessary to show why an officer acted as he did, an informant’s tip is admissible. Here, the State presented numerous witnesses and various exhibits, including a prescription pill bottle containing cocaine, which was confiscated the evening of Berry’s apprehension. Therefore, Berry was convicted based upon evidence the officers acquired during their pursuit of Berry, and the trial court did not err in admitting the officer’s testimony regarding information obtained by the informant. Issue 3: Continuance Berry argues that the court erred in denying his motion for continuance so that he could secure new counsel of his choice. The denial of a last minute request for a continuance to retain new counsel is within the trial court’s discretion and will not be reversed unless it appears to have resulted in manifest injustice. Berry did not provide any information of what his counsel failed to investigate in regard to his defense nor did he show any action, or lack of, that resulted in manifest injustice. Issue 4: Admission of evidence Berry argues that the trial court committed reversible error in admitting into evidence a booking photograph of Berry, not produced during discovery, and in allowing the testimony of a booking lieutenant from the Hinds County Detention Center to testify to police department records without proper authentication. Because the photograph in this case was introduced during cross-examination of the defendant and only in response to his allegation of beatings, there is no discovery violation causing a miscarriage of justice. With regard to his argument concerning admission of the booking attendant’s testimony without proper authentication of police records, the report is admissible under the business records exception to the hearsay rule, M.R.E. 803(6). The record establishes that the attendant is a shift lieutenant in the booking department of the Hinds County Detention Facility in Raymond. The attendant testified that the records entered into evidence were official records from the department, and that the records were completed during the regular course of booking an individual within the facility. Therefore, the State established all of the foundational requirements necessary to admit into evidence the inspection report under the business records exception to the hearsay rule. Berry further argues that the photograph and the attendant’s testimony were improperly admitted as rebuttal evidence. The record indicates that the defense introduced testimony of Berry’s claims of a physical altercation, and both the photograph and the attendant’s testimony were introduced to rebut Berry’s claim that he was beaten upon arriving at the hotel. Thus, they were properly admitted as rebuttal evidence. Issue 5: Habitual offender status Berry argues that the State failed to prove his continuous incarceration for more than one year on two separate occasions within a state penitentiary. The State provided evidence to support that Berry was incarcerated on two separate convictions, for conspiracy to utter a forgery and armed robbery. The State adequately proved that Berry was continuously incarcerated for more than one year on two separate occasions. Issue 6: Prosecutor’s statements Berry argues the State committed reversible error in asking certain questions, because the effect was requiring witnesses to call the police officers liars and was misstating the burden of proof during closing argument. The prosecutor merely informed the jury that they must decide which of the two versions of events they find most credible. It is the responsibility of the jury to weigh and consider conflicting evidence, evaluate the credibility of the witnesses, and determine whose testimony should be believed. Issue 7: Inconsistent statements Berry argues that the prosecutor committed reversible error in questioning a witness regarding inconsistent statements without introducing proof of the alleged statements. The final statement by the witness is an admission of his prior inconsistent statements, and evidence that the conversation took place. Once a witness explains a prior inconsistent statement by admitting it, the statement cannot be admitted into evidence. |
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