Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J., For The Court:
RUSSELL JAMES NICHOLS A/K/A R. J. NICHOLS, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 07/18/95
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: ADJUDGED GUILTY OF THE TRANSFER OF A CONTROLLED SUBSTANCE, COCAINE; SENTENCED TO SERVE 25 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY A FINE IN THE AMOUNT OF $25,000.
MOTION FOR REHEARING FILED:
A jury in the Circuit Court of Hancock County returned a verdict of "Guilty of transfer or a sale of a controlled substance," against the appellant, Russell James Nichols. The controlled substance was cocaine. The trial court sentenced Nichols to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections and to pay a fine in the amount of $25,000. In this appeal, Nichols presents four issues for this Court's review and resolution. This Court resolves all four of them adversely to Nichols and affirms the trial court's judgment of conviction and sentence of Nichols.
At approximately 9:00 p.m. on the evening of March 23, 1994, Lynnette Woodard, then a dispatcher and reserve officer with the Biloxi Police Department who was acting as an undercover officer for the Harrison County Narcotics Task Force (NTF), traveled with Russell Douglas in his 1985 Nissan Pulsar to Nichols's home located at 110 Cathy Drive in Bay St. Louis to attempt to buy crack cocaine from Nichols. Douglas was acting as a confidential informant for the NTF because he had been arrested earlier that day and charged with possession of two-and-one-half ounces of marijuana, a felony. Two NTF officers had offered to recommend the reduction of Douglas's charge to a misdemeanor if Douglas would assist the NTF in making undercover purchases of illicit drugs.
Earlier, around 7:45 p.m. that evening, Officer Woodard, Douglas, and several officers who had been assigned to work in the NTF had assembled in the parking lot of the Koskan Eye Clinic off of Highway 90 in Pass Christian. A wireless microphone was concealed under Douglas's clothing so that Shane Corr, a detective with the Bay St. Louis Police Department who had been assigned to the NTF, and other surveillance officers could monitor and record the transaction inside a van which they had parked in a location remote from Nichols's home. When Douglas and Officer Woodard approached Nichols's home and knocked on the door, Nichols responded by asking who was at the door. Douglas answered by saying his name, but Nichols told Douglas to come back later because he was busy.
Officer Woodard and Douglas drove back to the Koskan Eye Clinic parking lot in Pass Christian, waited approximately twenty minutes, and then returned to Nichols's home. This time, when Woodard and Douglas arrived at Nichols's home and knocked on his door, Nichols came to the door and invited both of them to come inside. After a brief conversation between Nichols and Douglas about a mutual friend who had been arrested on a drug charge, Douglas asked Nichols "If he had a fifty on him?" It seems that "a fifty" means fifty dollars worth of crack cocaine. As Officer Woodard explained in her testimony, "Mr. Nichols then got the dope off of the coffee table that was sitting next to him and gave it to me and I gave him the fifty dollars." When Nichols gave Officer Woodard the three rocks of crack cocaine which she had purchased for $50, she placed them in the front pocket of her fanny pack strapped around her waist. The three of them then talked for a few more minutes, after which Officer Woodard and Douglas left Nichols's home and returned to the Koskan Eye Clinic parking lot in Pass Christian.
When they arrived at the parking lot, Officer Woodard gave the three rocks of cocaine to Detective Corr. Corr placed the three rocks of crack cocaine and an evidence card inscribed with the case number and Officer Woodard's signature on it in a Ziploc plastic bag. Detective Corr took the plastic bag to the Bay St. Louis Police Department, where he placed it in the evidence safe. Later, Detective Corr personally delivered the same plastic bag with its contents to the Mississippi Crime Laboratory, where Allison Smith, a drug analyst tested portions of all three rocks and determined that they did contain cocaine.
The grand jury indicted Nichols for "knowingly, wilfully, unlawfully and feloniously, sell[ing] or transfer[ing] Cocaine, a Schedule II Controlled Substance...," on which indictment Nichols was tried and convicted. From his opening statement through his cross-examination of the State's witnesses, request for instructions, to his closing argument, Nichols's trial counsel employed the defense of entrapment. The State called Detective Shane Corr, Russell Nichols, Allison Smith, a drug analyst employed by the Mississippi State Crime Laboratory, and undercover officer Lynette Woodard. Our recitation of the facts is a synthesis of their testimony. Nichols elected not to testify and rested after the State rested. We reserve further Discussion of the testimony during the trial for our review of Nichols's four issues which he has raised in this appeal.
We quote Nichols's four issues directly from his brief:
I. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S-1 FOR THE STATE.
II. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AND IN DENYING THE DEFENDANT'S REQUEST FOR A PRE-EMPTORY INSTRUCTION OF NOT GUILTY, AND FURTHER ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR J.N.O.V. OR NEW TRIAL BECAUSE THE PROSECUTION FAILED TO PROVE ITS CASE AGAINST THE DEFENDANT AND THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND THE VERDICT EVINCED BIAS AND PREJUDICE AGAINST THE DEFENDANT.
III. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE STATE'S EXHIBIT 2, THE ALLEGED CONTROLLED SUBSTANCE.
IV. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF AFFECTIVE ASSISTANCE OF COUNSEL.
I. Trial counsel demonstrated his ineffectiveness when he questioned Detective Shane Corr and Russell Douglas, the confidential informant, on cross-examination on certain points which brought out the Defendant's involvement in other purported drug transactions.
II. Failure of trial counsel to object to introduction of cocaine into evidence as an exhibit for the State.
III. Failure of trial counsel to object to the granting of Jury Instruction S-1 for the State.
III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
A. Appellant's first issue
Nichols argues that the trial court's granting the only instruction which the State requested, Instruction S-1, was error. Instruction S-1 read as follows:
The Court instructs the Jury that the defendant, RUSSELL JAMES NICHOLS, has been charged by an indictment with the crime of Sale or Transfer of a Controlled Substance, Cocaine.
If you find from the evidence beyond a reasonable doubt that:
1. the defendant, RUSSELL JAMES NICHOLS, did wilfully, unlawfully, knowingly and feloniously sell or transfer cocaine to Lynnette Woodard; and,
2. the event occurred on or about March 23, 1994, in Hancock County, Mississippi,
then you shall find the defendant, RUSSELL JAMES NICHOLS, Guilty of Gale or Transfer of a Controlled Substance, Cocaine.
If you find that the Prosecution has failed to prove any one of the above essential elements of the crime of Sale or Transfer of a Controlled Substance, Cocaine, then you shall find the Defendant Not Guilty.
Nichols argues that his indictment charged him for "knowingly, wilfully, unlawfully and feloniously, sell or transfer Cocaine, a Schedule II Controlled Substance, to Lynnette Woodard" and that "nowhere contained in the jury instruction was the allegation that was set forth in the indictment that this was a Schedule II controlled substance." He continues that it was "incumbent upon the State to offer proof that the cocaine in question was in fact a Schedule II controlled substance and that since this was a necessary element same should have been set forth in this jury instruction and the State should have been required to submit proof regarding same."
When the trial court and the attorneys conferred about what instructions ought to be given to the jury, the following exchange occurred between the judge and Nichols's counsel about Instruction S-1, which was the only instruction that the State requested:
Okay. Let's look at S-1 at this time. Mr. Haas?
Mr. Haas (trial counsel for Nichols): We have no objection.
Because Nichols's trial counsel did not object to the trial court's giving this instruction, Nichols is barred from raising this issue as error on appeal. See Billiot v. State, 454 So. 2d 445, 462 (Miss. 1984) (holding that appellant had waived his objection to a particular instruction as given since the record did not reveal that the appellant had objected to it). Because we must deal with this issue as an allegation in Nichols's fourth issue that he received ineffective assistance of counsel, we waive the procedural bar and review this first issue.
Nichols contends that because the indictment stated that cocaine was a Schedule II controlled substance, the instruction was fatally defective because it did not state that cocaine was Schedule II controlled substance. In support of his argument, Nichols cites Casey v. State, 330 So. 2d 41 (Fla. 1976), in which the Court of Appeals in Florida reversed the conviction of a defendant charged with possession of hashish because the State failed to prove that hashish was a Schedule I controlled substance. Id. The Court reversed because the State failed to prove that hashish was a derivative of cannabis, which it had to do since hashish was not listed specifically in the statute. Id.
As the State points out in its brief, the facts in Casey are significantly different from the facts in the case sub judice. Cocaine, of the sale of which the jury convicted Nichols, and its derivatives are specifically listed in section 41-29-115 of the Mississippi Code as a Schedule II controlled ...