The opinion of the court was delivered by: Sullivan, Presiding Justice,
DATE OF JUDGMENT: 08/15/96
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/14/99
¶1. This is a direct appeal from the conviction of Tommie Weatherspoon for possession of cocaine. Trial was held on August 12, 1996, where at its Conclusion the jury returned a verdict of guilty. After reviewing the presentence report and hearing the defendant, the circuit court sentenced Weatherspoon on August 15, 1996, to a term of three years in the custody of the Mississippi Department of Corrections.
¶2. Weatherspoon was indicted during the 1995 September Term of the Circuit Court of Madison County for possession of the controlled substance cocaine. Prior to trial, Richard Flood, appointed counsel for Weatherspoon, filed two motions, one requesting the circuit court to order Weatherspoon and the arresting officer to take a polygraph test and the second requesting the circuit court to provide funds for a fingerprint expert for Weatherspoon. On June 20, 1996, both of these motions were denied.
¶3. At trial the three witnesses who testified on behalf of the State were the arresting officer, a narcotics investigator for the Canton Police Department, and a crime lab expert employed by the Mississippi Crime Laboratory. On behalf of the defense, Weatherspoon testified along with two other witnesses that were present at the scene when the arrest took place. Following the conviction and sentencing, Weatherspoon moved for a Judgment notwithstanding the verdict or in the alternative a new trial asserting the same issues that are now presented for this Court's consideration. This motion was denied on November 5, 1996. Soon after, Weatherspoon filed his notice of appeal.
THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT THE FUNDS FOR A FINGERPRINT EXPERT TO EXAMINE THE "MATCHBOXES" FOR HIS FINGERPRINTS.
¶4. Office Wyman, the arresting officer of the defendant, testified as follows at trial:
Q. Would you tell the jury, please, what happened once you were sent out on that call?
A. Okay. I proceeded to Walnut and Dinkins Street. I proceeded over there, and we'd had several calls in the area about shots fired. And upon arrival on the scene, there were - - there were several black males standing beside a car in the general area that I was sent to. So I stopped my car, called out, and asked them if they had seen anybody fire a weapon or if anything was going on. And one of the people out there was the Defendant, Tommie Weatherspoon. And I'd asked him, and he had told me that he hadn't seen anything. And he had his hands in his pocket. He had on, like, a jacket. And I asked Mr. Weatherspoon to take his hands out of his pocket because, you know, I'm here on a gun call, I explained to him, for my safety and his. So he took his hands out. And I'm - - he was - - there was another man standing beside him, and I was speaking to him. And as I did, Tommie reached in his pocket, in his right pocket with his right hand, pulled out - - pulled it out and tossed two matchboxes into a ditch. And at that time my backup arrived, and I asked Mr. Weatherspoon to place his hands on the car, and I cuffed him. And I asked my backup officer, Officer Owens, Robert Owens, to stay there, right there where those boxes, where I saw him toss them and to watch them. I took Mr. Weatherspoon and placed him in the car after I searched him and went back and retrieved the boxes. And they had - - one of them had about 14 rocks of what appeared to be crack cocaine. And the other box had residue of what appeared to be crack cocaine.
Q. At the time you - - did you recover the boxes?
Q. And what did you do with them when you recovered them?
A. I turned them over to the narcotics agent, Officer Draine.
¶5. In the instant case, Officer Wyman testified that he saw the defendant throw the two matchboxes into the ditch. The defendant denied having the two matchboxes. A fact issue for the jury to determine was thus presented. Weatherspoon requested and was denied a fingerprint expert to analyze the matchboxes and thereby solve the factual dispute. However, it is questionable whether a fingerprint expert would have been helpful in this case. First, common sense dictates the lay Conclusion that matchboxes are unlikely to produce a reasonable, reliable print. Second, a "catch-22" situation arises regardless of the findings deduced from an analysis. If the defendant's prints had been found on the box, he would have used state funds to impeach himself. The absence of matching fingerprints would prove nothing. The evidence would still consist of Officer Wyman's testimony balanced against the defendant's denials. The jury question would remain.
¶6. We have previously addressed the issue of whether an expert should be appointed at the request of an indigent defendant. In Johnson v. State, 529 So. 2d 577 (Miss.1988), we upheld the lower court's denial of the defendant's request for a fingerprint expert. Writing for the Court, Justice Prather stated:
"In Johnson I, this Court noted that on this very issue, the U.S. Supreme Court left undisturbed this Court's holding that the Constitution does not require a state to furnish an indigent defendant with expert or investigative assistance upon demand. [Johnson v. State, 476 So. 2d 1195, 1202 (Miss. 1985)](citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231(1985)). . . . This Court weighs on a case by case basis whether the denial of expert assistance for an accused is prejudicial to the assurance of a fair trial and will grant relief only where the accused demonstrates that the trial court's abuse of discretion is so egregious as to deny him due process and where his trial was thereby rendered fundamentally unfair." Johnson, 529 So. 2d at 589-90. Further, in Green v. State, 631 So. 2d 167 (Miss. 1994), we confirmed our position regarding court appointed experts by stating:
"An indigent's right to defense expenses is `conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.' Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984). Concrete reasons for requiring an expert must be provided by the accused. Hansen v. State, 592 So. 2d 114, 125 (Miss. 1991)." Green, 631 So. 2d at 171.
¶7. Historically, we have granted the trial court broad discretion in determining the need for court appointed experts. As Justice Prather stated in Johnson:
"There is no single test for determining whether the services of an investigator or an expert are necessary; that decision will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed." Johnson, 529 So. 2d at 590 (quoting Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984)).
¶8. We must determine whether Weatherspoon was denied a fundamentally fair trial due to a clear abuse of discretion by the trial court. The State's sole witness during trial was Officer Wyman who testified that he observed Weatherspoon toss two matchboxes into a ditch. Weatherspoon was given ample opportunity to cross-examine Officer Wyman concerning his testimony. Weatherspoon rebutted Wyman by testifying that the matchboxes did not belong to him. No expert was offered by the State to contradict Weatherspoon's testimony. If the State had produced an expert at trial to substantiate the claims of Officer Wyman, then the denial of an expert in support of the defendant's testimony would require close examination. However, Weatherspoon enjoyed full cross- examination of the State witness and adequately rebutted Officer Wyman's testimony. Weatherspoon's problem was credibility, not accessibility to expert assistance. No judicial abuse of discretion occurred in this trial.
¶9. Broad discretion concerning a decision whether or not to furnish funds to employ experts should remain with the trial court. Under the facts in this case, we cannot fault the trial court determination that an expert ...