Pearson v. State
| Docket Number: | 2009-KA-01582-COA Linked Case(s): 2009-KA-01582-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-10-2011 Opinion Author: Maxwell, J. Holding: Affirmed as modified. |
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| Additional Case Information: |
Topic: Sale of cocaine in public park - Admission of cocaine - Identification - M.R.E. 901(a) - Sufficiency of evidence - Cross-examination - Sentencing enhancement - Section 41-29-139 - Section 41-39-142 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Myers, J. Concurs in Result Only: Carlton, J. Without Separate Written Opinion Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-27-2009 Appealed from: Clarke County Circuit Court Judge: Robert Bailey Disposition: Convicted of Sale of Cocaine Within 1,500 Feet of a Public Park and Sentenced to Fifteen Years in the Custody of the Mississippi Department of Corrections, With Five Years Suspended, Five Years of Supervised Probation, and to Pay a $5,000 Fine District Attorney: Bilbo Mitchell Case Number: 2008-106 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Raco Pearson |
LESLIE D. ROUSSELL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
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 cocaine in public park - Admission of cocaine - Identification - M.R.E. 901(a) - Sufficiency of evidence - Cross-examination - Sentencing enhancement - Section 41-29-139 - Section 41-39-142 |
| Summary of the Facts: | Raco Pearson was convicted of selling cocaine in a public park and sentenced to fifteen years’ imprisonment, with five years suspended and five years of supervised probation. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of cocaine Pearson argues the trial court erred in admitting the bag of cocaine. His concerns focus on whether the powder cocaine admitted at trial was the same substance Pearson sold to the confidential informant. Although Pearson describes the error as a break in the chain of custody, he is clearly attacking the identification of the bag of cocaine under M.R.E. 901(a). Rule 901(a) does not expressly require that a proponent prove a chain of custody, though it remains one avenue to Rule 901(a) identification. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Any discrepancies in the evidence are subjects of cross-examination and argument, but do not detract from the fact that there is otherwise evidence to satisfy the strictures of Rule 901(a). Here, discrepancies in the case report, evidence-submission form, and witness statement do not detract from the State’s satisfaction of the requirements of Rule 901(a). The CI testified he was positive Pearson sold him powder cocaine, and he identified the bag of cocaine as the same one Pearson sold him. An officer testified, the moment Rutledge handed over the plastic bag, he sealed it in an evidence bag with a distinct identification number. He identified the evidence bag as the same one he sealed right after the sale. And the lab analyst testified he analyzed the substance contained in the sealed evidence bag, identified with the same number the officer had written on the bag, and found it to be cocaine. Because a reasonable jury could have found the bag of cocaine introduced at trial was the same bag Pearson sold to the CI, there was no error in admitting the bag of cocaine into evidence. Issue 2: Sufficiency of evidence The State presented testimony from an officer, who searched the CI for drugs and cash prior to his meeting with Pearson, fitted the CI with a hidden camera and audio transmitter, and recovered the cocaine from the CI immediately after the sale. The CI verified the video introduced at trial depicted the sale between him and Pearson. He also testified that the bag was the one Pearson sold him, which the lab analyst indicated contained cocaine. Viewing this evidence in the light most favorable to the State, a reasonable juror certainly could have found Pearson guilty of the sale of cocaine. Issue 3: Cross-examination Pearson argues the State impermissible questioned him about whether he intended to call his wife as an alibi witness. Pearson elected to testify in his defense. He took the stand at trial and claimed he was at home with his wife when the drug sale took place and that his wife could verify he was at home. Over his counsel’s objection, the State asked Pearson why he had not then filed a notice of alibi and planned to call his wife to testify. Generally, the failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury. However, the rule barring comment does not apply where a witness, while technically accessible to both parties, stood more available to the complaining party. Where a defendant fails to call a witness more available to him and presumptively in a closer relationship with him, the state is fully entitled to comment on the party’s failure to call the witness. Based on Pearson’s testimony that he was at home with his wife at the time the sale took place, the State was permitted to delve into whether Pearson intended to call his wife to verify his alibi. Issue 4: Sentencing enhancement Pearson argues that by charging him with “sale of cocaine within 1,500 feet of a public park,” the State chose to include park proximity as an element of the crime. Because the State failed to prove the park proximity, which Pearson suggests is a required element, he seeks reversal of his sale-of-cocaine conviction. The 1,500-feet fact is not an element of the crime of sale of a controlled substance. Instead, it relates only to the imposition of an enhanced penalty upon conviction of the sale of a controlled substance. If the sale occurs within 1,500 feet of a building or outbuilding of a public park or within 1,000 feet of the real property comprising the public park, the conviction may carry a sentence double the statutory maximum. The State is not grammatically hamstrung by an indictment’s language when the indictment read as a whole clearly communicates the charges. Pearson’s indictment charged him with violating section 41-29-139 (sale of controlled substance). It also listed section 41-39-142, which provided him notice of the applicable sentencing enhancement for park proximity. A sentencing enhancement that increases the penalty beyond the prescribed statutory maximum, like an element of the crime, must be proven beyond reasonable doubt to a jury. Here, the State failed to prove the sale occurred within 1,500 feet of a public park. Although the informant testified the sale occurred on the real property referred to as Summerall Park, the record contains no evidence establishing this property was in fact a public park. While this failure by the State precludes an enhanced sentence, it does not alter Pearson’s sale-of-cocaine conviction. And in this particular case it has no effect on his sentence because the trial judge did not use park proximity to increase Pearson’s penalty beyond the statutory maximum. The trial judge, in his discretion, sentenced Pearson to fifteen years’ imprisonment, with five of those years suspended, followed by five years of supervised probation. The apparent determining sentencing factor was not the location of the sale but rather Pearson’s forty-two prior misdemeanor convictions. Pearson’s sentence was well below the general statutory maximum of thirty years listed in section 41-29-139(b)(1). Thus, the conviction is modified from “sale of cocaine within 1,500 feet of a public park” to “sale of cocaine” and affirmed as modified. |
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