The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 01/30/1997
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 01/30/1997: TRANSFER OF A CONTROLLED SUBSTANCE (HABITUAL OFFENDER): SENTENCED TO SERVE A TERM OF 10 YRS IN THE CUSTODY OF THE MDOC TO SERVE DAY FOR DAY WITHOUT HOPE OF PAROLE OR PROBATION;
DISPOSITION: AFFIRMED - 4/6/99
¶1. Pursuant to an indictment which charged that Jessie James Reynolds sold or transferred cocaine, a schedule II controlled substance, to Robert Hooker as an habitual offender defined by Section 99-19-81 of the Mississippi Code (Rev. 1994), Reynolds was tried and found guilty by a jury in the First Judicial District of Harrison County. Although Section 99-19-81 requires that an habitual offender like Reynolds be sentenced to serve the maximum penalty, which is thirty years imprisonment for the sale or transfer of a schedule II controlled substance, the trial Judge relied on the authority of Clowers v. State to sentence Reynolds "to serve TEN (10) YEARS in the custody of the Mississippi Department of Corrections to serve day for day without hope of parole or probation as provided in Section 99-19-81 . . . ." In this appeal from the trial court's final judgment and order sentencing him, Reynolds presents but one issue for this Court's analysis and resolution. We quote Reynolds's one issue verbatim from his statement of issues required by Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure:
I. WAS THE APPELLANT INEFFECTIVELY REPRESENTED BY COUNSEL AT THE TRIAL BELOW, MANDATING A REVERSAL OF HIS CONVICTION?
From our review of the evidence and events which transpired during the course of Reynolds's trial and afterwards, we affirm the trial court's final judgment of Reynolds's conviction of the sale of cocaine and its sentence imposed on Reynolds.
¶2. The Coastal Narcotics Enforcement Team (CNET) is a combination of personnel from both the Gulfport Police Department and the Mississippi Bureau of Narcotics (MBN). It's function is to enforce Mississippi's controlled substances laws. At approximately 7:55 p.m. on September 13, 1995, Robert Hooker, an undercover agent for MBN assigned to CNET, purchased approximately two grams of crack cocaine for twenty dollars from an African-American male whom Hooker identified as the appellant, Jessie James Reynolds. *fn1 Hooker was sitting beneath the steering wheel in a brown station wagon parked in the parking lot at Cohea's lounge located on Old Pass Road just west of Broad Avenue in Gulfport when Reynolds approached Hooker and exchanged one rock of crack cocaine for a twenty-dollar bill which Hooker handed to him. The remainder of the facts are related in the manner which is consistent with the State's evidence on which the jury convicted Reynolds.
¶3. Before Hooker had driven the brown station wagon onto the parking lot at Cohea's lounge, Gary Ponthieux, a narcotics investigator for the City of Gulfport Police Department who was also assigned to CNET, and undercover agent Hooker had planned an evening of conducting what these officers described as "buy bust" operations. A "buy bust" operation is one in which the alleged purveyor of the controlled substance is arrested as quickly as possible after he has sold the controlled substance to the undercover agent. A surveillance, or "take down" team, composed of other law enforcement officers, arrests the seller of the illicit substance when they hear the undercover agent's command over the undercover agent's body mike to move into the area and make the arrest. Officer Ponthieux commanded the surveillance team that ultimately arrested Reynolds.
¶4. There were several African-American males and perhaps a few African-American females standing in the Cohea's Lounge parking lot when Hooker parked the station wagon and asked a man "to come up to [his] car, if he had a twenty." "Twenty" is the drug culture's appellation for one rock of crack cocaine. The man approached Hooker, who remained seated beneath the steering wheel, advised Hooker that he had a twenty, and then "walked to the back of [Hooker's] vehicle and met with another unknown male." The first male, whom Hooker subsequently identified as Reynolds, returned to the driver's window and consummated the transaction. After the sale was made, Hooker drove "probably about ten yards east of [the] buy transaction and . . . gave the command for [the] surveillance team to come in and make the arrest." When Hooker gave the command for the surveillance team to arrest Reynolds, Hooker "gave a description that [the seller] was wearing white socks, gray short pants, and a blue shirt."
¶5. Investigator Ponthieux commanded the surveillance team which moved in to arrest Reynolds based upon Hooker's description of the seller's clothing. As Ponthieux moved in with the surveillance team, he "observed this individual wearing the same clothing description that Agent Hooker had [given him] over the body transmitter" and "detained that individual." Ponthieux heard Hooker describe the seller as "a male wearing a dark blue T-shirt, short pants."
¶6. Reynolds was standing in front of a car with his hands on its hood when Ponthieux arrested him. Ponthieux's search of Reynolds found nothing, but Ponthieux "located a twenty-dollar bill on the ground which was located underneath where Mr. Reynolds was standing in front of the vehicle." Reynolds "had his feet spread at the time, and the [twenty-dollar bill] was in between his feet a little bit behind him." Ponthieux was unable to identify further the twenty-dollar bill that he found between Reynolds's feet because, as Ponthieux later testified, "There was an error on my part in failing to make a notation of the serial numbers on the twenty-dollar bill that was issued to Agent Hooker."
¶7. Agent Hooker had stopped his vehicle immediately after he ordered the surveillance team to arrest the man he described as "wearing white socks, gray short pants, and a blue shirt," and returned on foot to the scene of the illicit transaction in time to find that the surveillance team had indeed detained the man who had sold him the rock of crack cocaine for twenty dollars. Agent Hooker then tried to identify the second man whom Hooker had observed handing the rock to Reynolds when Reynolds stepped to the rear of Hooker's vehicle. Although Hooker instructed members of the surveillance team to detain Chris Harper because Hooker thought that Harper might have been the second suspect, Hooker was unable to identify Harper as the supplier of the rock which Reynolds had sold to him. However, during their detention of Harper, members of the surveillance team ordered Harper to pull down his pants, after which they searched Harper. Harper had no controlled substances in his clothing or otherwise on his person; hence the officers released Harper.
¶8. After the officers had arrested Reynolds, they took him to the Harrison County detention facility where his clothing was relinquished and inventoried by Harrison County deputies. Reynolds's picture, or mug shot, was also taken at the detention center. Reynolds signed a personal property form which contained descriptions of his watch, ring, one pair of gray pants, one blue hat, one black shirt, one brown shoe, and one blue belt. Reynolds did not sign that part of the form intended for his certification "that the personal property listed above is all of the property [he] had in [his] possession at the time of admission." No date appears on the personal property form. On May 2, 1996, Reynolds was transferred with the status of trustee from the Harrison County detention center to the Harrison County work center, where he remained until October 23, 1996, when he was returned to the detention center to await trial on the charge for which he was convicted in this case.
¶9. Reynolds's first trial on his indictment for the sale of cocaine to Agent Hooker ended in a mistrial after the jury had been unable to reach a verdict. Among Reynolds's witnesses at his first trial was a man named George Peters or, perhaps, George Peterson. Reynolds did not testify at his first trial. For Reynolds's second trial on this same charge, the State called as its three witnesses MBN Agent Robert Hooker, Narcotics Investigator Gary Ponthieux, and Alison Smith, a drug analyst employed by the Mississippi Crime Laboratory. The testimony of Officers Hooker and Ponthieux is reflected in the foregoing recitation of the facts from which the grand jury indicted Reynolds. Smith testified to establish that the substance which Hooker purchased for twenty dollars was cocaine, a controlled substance.
¶10. At his second trial, Reynolds also called three witnesses. They were: (1) Chris Harper, whom Agent Hooker thought might have been the person who gave Reynolds the rock of crack cocaine which Reynolds sold Hooker, (2) Walter Pitts, a sergeant with the Harrison County Sheriff's Office, who was the records custodian for the sheriff's office, and (3) Reynolds himself. Although it appears that Reynolds's counsel had successfully served George Peters with a witness subpoena to testify at this second trial, Peters ignored the subpoena and did not appear. Reynolds's trial counsel elected to forego further action against Peters to compel his presence as a witness for Reynolds because he deemed Peters's testimony to be cumulative to the testimony of Chris Harper and Reynolds.
¶11. Reynolds's appellate counsel's argument on his one issue in this appeal requires that this Court relate the following events and specific testimony that occurred during Reynolds's second trial. In his opening statement which he made before the State began its presentation of the evidence, Reynolds's trial counsel stated, "Ladies and gentlemen, the only issue in this case is an issue of identification." Reynolds's counsel explained that his client did not contest the fact that Agent Hooker had bought a rock of crack cocaine from some man in the Cohea's Lounge parking lot; instead, Reynolds "vehemently contest[ed] the fact that Jessie Reynolds is the individual that made this sale."
¶12. Reynolds called Chris Harper to establish that on the afternoon of September 13, 1995, he had taken his Monte Carlo automobile to Jessie Reynolds's house so that Reynolds could rebuild its engine. Harper had known Reynolds "a good five or ten years at the most," and Reynolds had repaired Harper's Monte Carlo before. Later that afternoon, after he had finished shooting basketball at the Gaston Hewes Recreation Center and had started walking home, Harper met Reynolds "on 15th Street on the sidewalk between [the] Beach and Cohea's Lounge." George Peters was with Reynolds. According to Harper, while Reynolds, Peters, and he were walking in front of Cohea's Lounge, "A black male . . . drove up in his station wagon . . . . Then about five or six people ran to the station wagon. Then somebody sold him crack cocaine. By that time about five seconds later, everybody was on the ground."
¶13. Harper then testified that the officers who put him on the ground asked, "Where's it at?" Harper continued: "[W]hen the young man . . . got out . . . of the station wagon, he came and pointed at me . . . ." Then the officers made Harper pull down his pants and take off his shoes. When the officers found nothing on Harper, Hooker "point[ed] at Jessie James Reynolds." According to Harper, the officers arrested Reynolds for the same thing they had accused him of doing earlier. Harper was released on the spot.
¶14. Reynolds called his second witness, Walter Pitts, to establish what items of clothing Reynolds was wearing on the night of September 13, 1995, when Reynolds was "booked" into the Harrison County detention center. Pitts described the booking process, which included the arrested person's completion of a personal property form on which were described all of the items of property, including his clothing, in the arrested person's possession. Mr. Pitts identified the unsigned and undated personal property form which listed and described Reynolds's watch, ring, and five items of clothing. *fn2 Reynolds introduced into evidence the personal property form on which Reynolds's five items of clothing were described as one pair of gray pants, one blue hat, one black shirt, one brown shoe, and one blue belt.
¶15. During his direct examination of Sergeant Pitts, Reynolds's trial counsel asked about the contents of a bag that the sergeant had brought to the witness stand. Pitts identified the bag's contents as "a pair of pants, a T-shirt, and a blue baseball cap." Pursuant to Reynolds's counsel's motion, the pair of pants was marked for identification as "Exhibit No. D-2;" the baseball cap was marked for identification as "Exhibit No. D-3;" and the shirt was marked for identification as "Exhibit No. D-4." The bag which contained the clothing was also marked for identification as "Exhibit No. D-5." Sergeant Pitts testified that he had first seen the bag and its contents that morning "[i]n [the] property room of the jail." He further identified the pants, shirt, and baseball cap as being Reynolds's property. Reynolds's counsel never moved to introduce into evidence the bag, pants, shirt, and baseball cap which had been marked for identification only.
¶16. The assistant district attorney cross-examined Sergeant Pitts in an effort to demonstrate that there was a possibility that the bag contained Reynolds's clothing which he was wearing when he returned from the work farm to the detention center on October 23, 1996, rather than the clothing he wore when he was first arrested early in the evening of September 13, 1995, and initially "booked" into the Harrison County detention center. We quote from the record the following portion of the State's ...