Stribling v. State
| Docket Number: | 2009-KA-01420-COA Linked Case(s): 2009-KA-01420-COA ; 2009-KA-01420-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-16-2011 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Admission of video recordings - M.R.E. 106 - M.R.E. 403 - Cautionary instruction - Multi-count indictment - M.R.E. 404(b) - Sufficiency of evidence Judge(s) Concurring: Lee, C.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Concur in Part, Concur in Result 1: Irving, P.J. Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-19-2009 Appealed from: Neshoba County Circuit Court Judge: Marcus D. Gordon Disposition: CONVICTED OF THREE COUNTS OF THE SALE OF COCAINE AND SENTENCED TO TEN YEARS ON COUNT I, TWO YEARS ON COUNT II, AND ONE YEAR ON COUNT III, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Mark Sheldon Duncan Case Number: 08-CR-0050-NS-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Janice Stribling |
JULIE ANN EPPS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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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 cocaine - Admission of video recordings - M.R.E. 106 - M.R.E. 403 - Cautionary instruction - Multi-count indictment - M.R.E. 404(b) - Sufficiency of evidence |
| Summary of the Facts: | Janice Stribling was convicted of three counts of selling cocaine. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Video recordings The State played for the jury only those parts of the video recordings that showed the drug transactions. The trial judge denied Stribling’s request that the entire video recordings be played at that time. On appeal, Stribling argues that under M.R.E. 106, she was entitled to have the State play the entire video recordings. The trial judge decided that the omitted parts of the recordings were not relevant and that, if played, they would merely waste time. Stribling argues that these seemingly immaterial parts of the recordings would have supported her theory of defense. While Rule 106 only refers to writings or recorded statements, the Mississippi Supreme Court has indicated that the rule is applicable to video recordings like the ones at issue here. In this case, there were two reasons the trial judge could have used to refuse to require the State to play the entire recordings. First, he could have found, under Rule 106, that the omitted parts did not “in fairness [have] to be considered contemporaneously with” the parts that were played. Alternatively, he could have found – and it appears he did – that, under M.R.E. 403, the probative value of the omitted parts was substantially outweighed by considerations of waste of time. The trial judge did not abuse his discretion when he allowed the State to play only certain excerpts. There are approximately thirty minutes of recorded video that show nothing more than the confidential informant’s gearshift or glove compartment while he was driving to the purchase sites. Not only are the omitted parts of the recordings at issue superfluous, but Stribling could have played the omitted parts during her case-in-chief. Issue 2: Cautionary instruction Stribling argues that the trial judge erred when he failed to instruct the jury to consider the testimony of the confidential informant with caution. A cautionary instruction is not absolutely required in every case involving the testimony of a confidential informant, even when there is evidence of potential bias on the part of that witness in favor of the State; especially where the testimony of the witness finds corroboration in other evidence. A review of the record shows that the trial judge did not abuse his discretion by denying the proffered instruction. Issue 3: Multi-count indictment Stribling argues that the trial judge committed plain error when he allowed the State to prosecute her on a multi-count indictment. She argues that the three sales of cocaine were separate and distinct offenses that should not have been tried in the same proceeding. When considering whether a multi-count indictment is proper, the court considers whether the time period between the occurrences is insignificant; whether the evidence proving each count would be admissible to prove each of the other counts; and whether the crimes are interwoven. If a criminal defendant believes that the State has wrongfully proceeded on a multi-count indictment, he or she should file a motion to sever the offenses. The trial judge would then hear the motion. The burden would be on the State to make a prima facie showing that the multi-count indictment is proper. In this case, Stribling did not move to sever the offenses or raise the issue of severance in any way. Therefore, this issue is procedurally barred. Notwithstanding the procedural bar, the issue is also without merit. There were only two months between the first and last sales of cocaine. Also, there was substantial overlap in the evidence for each offense. All three offenses, if tried separately, would have required the testimonies of Battle and Gregory. Furthermore, the three cocaine sales were clearly linked and part of the same common scheme or plan. Therefore, the multi-count indictment was proper. Stribling argues that M.R.E. 404(b) would prevent the State from introducing evidence of the other two sales of cocaine in a separate trial for just one of the sales. However, the mere fact that Rule 404(b) might have operated to exclude evidence of Stribling’s other cocaine sales in a separate trial for one of the sales does not mean that severance was mandatory. Issue 4: Sufficiency of evidence Stribling argues that there was insufficient evidence to support her conviction. Specifically, she argues that the only direct evidence tying her to the crime was Battle’s testimony. She further argues that paid confidential informants like Battle are inherently unreliable witnesses and that their testimonies should not suffice for conviction. Stribling’s argument that the testimony of a paid confidential informant cannot sustain a conviction is not supported by Mississippi law. Furthermore, the testimony of an accomplice, standing alone, is sufficient to support a conviction so long as that testimony is not unreasonable, self contradictory or substantially impeached. Here, the CI’s testimony was substantially corroborated by the video recordings. Despite Stribling’s arguments to the contrary, these recordings lend enormous support to the CI’s testimony that he purchased crack cocaine from Stribling on three occasions. Accordingly, there was sufficient evidence from which a rational juror could find beyond a reasonable doubt that all the elements necessary to convict Stribling on three counts of selling cocaine were present. |
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