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Smothers v. State

March 09, 1999

QUINCY SMOTHERS A/K/A QUINCY APPELLANT WASHINGTON
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Lee, And Southwick, JJ.

The opinion of the court was delivered by: Lee, J.

DATE OF JUDGMENT: 05/23/97

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CT II C/S SALE COCAINE: CT III C/S SALE COCAINE: CT II SENTENCED TO SERVE 30 YRS IN THE CUSTODY OF MDOC, TO RUN CONSECUTIVE WITH CT III; CT III SENTENCED TO 30 YRS IN THE CUSTODY OF THE MDOC TO RUN CONSECUTIVE WITH CT II

¶1. Quincy Smothers was convicted on two counts for selling crack cocaine to an undercover detective with the Jackson Police Department. The indictment originally charged three counts of sale of crack cocaine; however, a mistrial was declared as to Count One. From these convictions, he perfects his appeal to this Court and argues that the trial court erred, as follows: (1) receiving an unfair trial due to the court allowing leading of State's witnesses and by presenting cumulative evidence which bolstered the State's testimony, (2) limiting his right to cross-examination and confrontation of a State's witness, and (3) denying Smothers an entrapment jury instruction. Finding his arguments without merit, we affirm.

FACTS

¶2. Prior to February 27, 1996, the Jackson Police Department and Drug Enforcement Administration had been working on a sting operation investigating nineteen individuals suspected of narcotics trafficking. One of the individuals suspected of said trafficking was the appellant, Quincy Smothers. On February 27, 1996, Officer Mike Russell, detective with the Jackson Police Department, and agents with the Drug Enforcement Administration (DEA) arranged for a confidential informant to contact Quincy Smothers a gentlemen suspected by the police and DEA of selling crack cocaine. On February 27, 1996, Officer Mike Russell, DEA agents and their confidential informant gathered to commence the undercover investigation. The confidential informant made a telephone call to an individual known as Smothers. The confidential informant identified herself to Smothers and implied she was interested in purchasing drugs from Smothers. At trial, testimony reflected that Smothers immediately admonished the informant for mentioning the purchase over the telephone, but agreed to a time and place which the confidential informant could meet him to make the purchase. It was at this point that the confidential informant and Officer Russell finished preparations for the meeting with Smothers to purchase the drugs.

¶3. On this first occasion, Officer Russell did not witness the actual drug transaction between the confidential informant and Smothers due to the fact he had been requested by Smothers and a second individual to go and wait for the informant in the vehicle. The confidential informant returned to the vehicle and delivered the crack cocaine to Officer Russell. This initial contact between the confidential informant, Officer Russell, and Smothers allowed the opportunity for two additional purchases of cocaine from Smothers by Officer Russell.

¶4. On March 6, 1996, Officer Russell, DEA agents, and the confidential informant again gathered to arrange a meeting with Smothers. As is standard practice, before the informant was allowed to meet with Smothers she was searched by a female law enforcement officer to make sure no narcotics were currently in her possession. Additionally, Officer Russell was given a wire with the appearance of being a pager, and he placed this wire on his person. The confidential informant arranged for her and Officer Russell to meet with Smothers at the Grove apartments.

¶5. The confidential informant introduced Officer Russell to Smothers as a construction worker. Officer Russell explained that he needed the cocaine to pay his employees. Officer Russell explained that he would pay his employees in cash and the remainder in cocaine. Smothers was still suspicious of Officer Russell. Smothers's suspicions are described in the trial testimony of Officer Russell. At trial, Officer Russell stated that Smothers continued to ask questions of him and further inquired as to whether he was a police officer. Additionally, Smothers asked if the pager Officer Russell was wearing was a wire. Officer Russell answered in the negative to both of the questions posed to him by Smothers. Smothers was still wary of the presence of the pager Officer Russell was wearing and had him remove the pager and place it in the vehicle he and the confidential informant had arrived in. On this occasion, Officer Russell personally purchased $500 worth of crack cocaine from Smothers. Additionally, Officer Russell received a pager number for Smothers and was told when he communicated with Smothers to refer to him as "John."

¶6. On the third occasion, Officer Russell arranged to meet with Smothers without the presence of the confidential informant. Officer Russell talked with Smothers on the telephone and arranged to meet Smothers in a parking lot. Once Smothers arrived at the parking lot, he instructed Officer Russell to follow him because there was too much activity. Officer Russell obliged Smothers's request and followed him to the parking lot of an apartment complex . It was in this parking lot that Officer Russell personally made the third and final purchase of cocaine from Smothers for the sum of $600.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ITS RULINGS ON SMOTHERS'S

OBJECTIONS TO QUESTIONS AS BEING LEADING AND CUMULATIVE AND

THEREFORE, RENDERING HIS TRIAL UNFAIR.

¶7. The first assignment of error was that the trial court allowed leading questions and cumulative testimony which prejudiced Smothers and rendered his trial unfair. During the trial of this matter, the State placed an undercover agent, Officer Mike Russell, on the stand to testify as to the facts pertaining to the undercover investigation conducted by the Jackson Police Department and the Drug Enforcement Administration relative to Smothers selling crack cocaine. While Officer Mike Russell was on the stand, Smothers alleged that the trial court improperly allowed the State to make out its case against him with leading questions and bolstered testimony.

¶8. The standard applied to determine whether an injury has resulted to the complaining party due to the use of leading questions and which requires us to reverse a decision of the trial court is two-pronged. The law of Mississippi requires the following to reverse a case based on the use of leading questions when examining a witness's testimony: (1) there was a manifest abuse of discretion by the trial court and (2) the question shall have influenced the answer and injury resulted. Summerville v. State, 41 So. 2d 377, 379-80 (Miss. 1949) (quoting 58 Am.Jur. Witnesses §§ 570 and 571). This standard is applied because the harm caused is usually inconsiderable and speculative, and only the trial court is able to observe the demeanor of the witness to determine the harm. Whitlock v. State, 419 So. 2d 200, 203 (Miss. 1982). As a result, "matters, such as the introduction of proof, the asking of leading questions, etc., are largely within the discretion of the trial court." Summerville v. State, 41 So. 2d 377, 380 (Miss. 1949) (quoting Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 898 (1933)). Each case must depend upon its own circumstances, and the trial Judge is the person best situated to decide upon the necessary course of conduct necessary to elicit the truth and yet safeguard the rights of the accused, and unless this Court can say, from the whole record, he abused his discretion and the accused was deprived a fair trial, we should not reverse a case because of such action. Summerville, 41 So. 2d at 380. The record reflects that leading questions were used by the State in examining Officer Russell. The following is the testimony objected to by the defense.

"QUESTION: Let me ask you this question: Did [the informant] set up a phone conversation between herself and a person that identified himself as Quincy Smothers?"

"BY MR. HOLLOMON: We object to leading."

"BY THE COURT: I will let him answer the questions."

"QUESTION: And it was indicated that a purchase of crack cocaine was ...


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