HERMAN JACKSON JR. A/K/A HERMAN JACKSON III A/K/A MAIN A/K/A MAIN LOVE A/K/A HERMAN JACKSON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 08/18/2015
COAHOMA COUNTY CIRCUIT COURT HON. ALBERT B. SMITH III JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
BENJAMIN ALLEN SUBER GEORGE T. HOLMES JUSTIN T. COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
GRIFFIS, P.J., BARNES AND FAIR, JJ.
A Coahoma County jury convicted Herman Jackson of possession
of marijuana of more than thirty grams but less than one
kilogram with intent to sell, transfer, barter, distribute,
or dispense. The trial court sentenced him to ten years in
the custody of the Mississippi Department of Corrections
(MDOC) as a subsequent drug offender and as a non-violent
habitual offender. Jackson now appeals, raising several
issues through his counsel and pro se. Finding no error,
OF FACTS AND PROCEDURAL HISTORY
In June 2013, a confidential informant (CI) told narcotics
agents with the Clarksdale Police Department that Jackson
possessed a large amount of marijuana and that he was selling
it out of his home at 343-B Bolivar Street. Officers
considered the CI reliable because the informant had provided
information in numerous prior cases and was instrumental in
helping to obtain prior convictions. Officers presented the
CI's information to a judge and obtained a warrant to
search Jackson's house. Officers then conducted
"loose surveillance" on the house for approximately
twenty-four hours, during which time Jackson did not enter or
leave the house. Shortly thereafter, Jackson was seen driving
within three blocks of his home. Knowing there was an active
warrant for Jackson's arrest due to unpaid municipal
fines,  officers stopped him and transported him
to 343-B Bolivar Street. Officers informed Jackson they were
going to search his home. When asked for a key, Jackson
stated he did not have one. Officers therefore kicked the
door in and conducted a thorough search of the home while
Jackson remained in the patrol car.
Even though the home was modest, numerous surveillance
cameras were mounted outside to record the house's
exterior area. Inside, there was a digital video recorder
(DVR) connected to the video-surveillance system, showing the
exterior of the house on four split screens on a monitor in
real-time. On a living-room sofa, two clear plastic baggies
containing a green leafy substance were found, as well as a
significant amount of the same substance and some packaging
materials in the bedroom on a dresser. Officers also seized
from the bedroom a box of sandwich baggies, a set of digital
scales, and the DVR system found in the closet. Additionally,
they recovered several utility bills that were addressed to
Jackson at this address, and Jackson's social-security
card, which was lying on a living-room table. A ceramic
container on top of the refrigerator in the kitchen was
filled with sandwich baggies and a green leafy substance.
Female clothing and cosmetics were also observed in the home,
indicating a female apparently lived at the residence;
however, a male's pair of pants was also observed and
After the search, Jackson was transported to the Clarksdale
Police Department and booked. Jackson requested to use the
telephone and made three calls, all of which were recorded
without his knowledge and later admitted into evidence at
trial. During the calls, Jackson made several
statements indicating the house that the officers searched
and the drugs were his. While officers did not witness the
telephone calls, one officer identified Jackson's voice
from the recordings.
A Coahoma County grand jury indicted Jackson for possessing
more than thirty grams but less than one kilogram of
marijuana with intent to distribute, in violation of
Mississippi Code Annotated section 41-29-139(b)(1) (Rev.
2013). He was also indicted as a subsequent
offender under Mississippi Code Annotated section 41-29-147
(Rev. 2013) and as a non-violent habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev.
At trial, narcotics officers testified to the amount of
marijuana seized. Eric Frazure, a forensic chemist at the
Mississippi Crime Lab accepted as an expert in drug analysis,
testified that based on his testing, the green leafy
substance seized was marijuana. The jury was instructed on
both the charged offense and the lesser-included crime of
simple possession of marijuana in an amount of more than 250
grams but less than 500 grams. The jury found Jackson guilty
as charged, and he was sentenced to ten years in the custody
of the MDOC.
Additional facts will be discussed as they relate to the
On appeal, counsel for Jackson raises six issues.
Jackson's pro se brief supplements his appellate
counsel's arguments and raises four more separate issues.
We shall discuss each in turn, consolidating where issues
Police Department Telephone Calls
Jackson argues the trial court erred in denying his motion to
suppress recordings of three telephone calls he made at the
Clarksdale Police Department, which were admitted into
evidence, because he claims the State's attempts to
authenticate the recordings were insufficient. During these
telephone calls, Jackson identified the house and the
marijuana as his property. Jackson claims there was no
evidentiary foundation for the conversation because no one at
the police department testified that the machinery was in
proper working order while recording, and no one was
listening to the conversation to make sure it was accurately
The standard of review for the admissibility of evidence is
abuse of discretion. Stromas v. State, 618 So.2d
116, 119 (Miss. 1993). Evidence must be relevant and properly
authenticated to be admitted at trial. Id. at 118
(citing M.R.E. 401 & 901). "Authentication of
evidence requires the offering party to lay a proper
foundation." Riley v. State, 126 So.3d 1007,
1009 (¶7) (Miss. Ct. App. 2013) (quoting Wilson v.
State, 775 So.2d 735, 740 (¶11) (Miss. Ct. App.
2000)). The applicable version of Mississippi Rule of
Evidence 901(a) provides that authentication is sufficient
when it "support[s] a finding that the matter in
question is what its proponent claims." One means of
authenticating evidence "is through the testimony of a
witness with knowledge 'that [an item] is what it is
claimed to be.'" Riley, 126 So.3d at 1009
(¶7) (quoting M.R.E. 901(b)(1)). Further, the applicable
Rule 901(b) gives several examples of evidence that can be
used for authentication in different circumstances:
(5) Voice Identification. Identification of a voice,
whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon
hearing the voice at any time under circumstances connecting
it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by
evidence that a call was made to the number assigned at the
time by the telephone company to a particular person or
business, if (A) in the case of a person, circumstances,
including self-identification, show the person answering to
be the one called
(9) Process or System. Evidence describing a process or
system used to produce a result and showing that the process
or system produces an accurate result.
M.R.E. 901(b)(5)-(6), (9) (emphasis added).
The State satisfied the authentication requirement through
the testimony of Officer Carl Hinton, who testified he was
familiar with Jackson's voice on the recording, and
identified it as his. Jackson argues this was insufficient to
lay a proper foundation, but we disagree. Officer Hinton
transported Jackson to the station and booked him, then
Officer Hinton allowed Jackson to make three telephone calls.
While Officer Hinton did not overhear the calls, he and
Jackson were the only individuals in the area when the calls
were made, and he observed Jackson ending a call. Further,
Cindy Doss, an administrator with the police department,
testified that all incoming and outgoing telephone calls at
the police station are recorded. She explained the process
for obtaining a copy of the recordings and that she made a
copy of Jackson's telephone calls as requested by the
In support of his argument, Jackson cites Conway v.
State, 915 So.2d 521, 526 (¶19) (Miss. Ct. App.
2005), where this Court found an edited videotape was
admitted without proper authentication because the officer
who testified to authenticate the footage never actually
witnessed the crime scene. However, the admission of the
videotape was deemed harmless error due to the overwhelming
evidence of the defendant's guilt. Id. at
(¶20). We find Conway is inapplicable here
because Officer Hinton's identifying testimony was based
on information within his knowledge-Jackson's
voice-whereas in Conway the video was of the crime
scene and never viewed by the authenticating officer.
We find the State's citation to Broadhead v.
State, 981 So.2d 320 (Miss. Ct. App. 2007) analogous to
this situation. There, the defendant argued that the
admission of her recorded phone call from jail was improperly
admitted because the State's authentication of the
recordings was insufficient. Id. at 326 (¶24).
Similar to this case, the State authenticated the recording
through an officer testifying he was familiar with the
defendant's voice and identified her voice in the
recording. Id. at 327 (¶25). The officer also
testified he was familiar with the phone system that recorded
the inmates' calls. Id. Here, Officer Hinton
identified Jackson's voice, and Doss testified about the
process for obtaining copies of the recorded phone calls. The
Broadhead court also cited Conway as
inapplicable because an officer was familiar with the
defendant's voice. Id. at (¶26).
Furthermore, we are not persuaded by Jackson's argument
that a telephone-call recording system is analogous to an
Intoxilyzer machine or a radar device.
Additionally, in his pro se brief, Jackson argues that the
recordings should have been suppressed because they were
obtained in violation of the Fourth Amendment. However, this
argument is procedurally barred because it was not presented
before the trial court. See Bates v. State, 879
So.2d 519, 522 (¶7) (Miss. Ct. App. 2004). Regardless of
the procedural bar, the issue is without merit. A person may
only challenge an intrusion to his or her right to privacy
where the person "would objectively and reasonably
expect privacy." Pierre v. State, 607 So.2d 43,
52 (Miss. 1992) (citing Katz v. United States, 389
U.S. 347, 351-52 (1967)). In Pierre, there was no
reasonable expectation of privacy under the Fourth Amendment
for a telephone conversation by a defendant in custody, when
she confessed to a crime while on the phone with her brother
in an open room as police officers sat nearby. Id.
at 51-52. "The expectations of privacy of an individual
taken into police custody" are necessarily diminished.
Maryland v. King, 569 U.S. 435, 462 (2013). The same
principle would apply here. Jackson did not have a reasonable
expectation of privacy for his telephone calls because he was
in custody and being monitored.
Relatedly, Jackson argues that Mississippi Code Annotated
section 41-29-507 (Rev. 2013) was violated. This code section
is part of the Interception of Wire or Oral Communications
Act, and provides that "[n]o person, agency . . . or
political subdivision of the state, other than the Bureau of
Narcotics, is authorized . . . to own, possess, install,
operate or monitor an electronic, mechanical or other
device." However, the bureau "may be assisted by an
investigative or law enforcement officer in the operation and
monitoring of an interception . . . [of communication],
provided an agent of the Bureau of Narcotics is present at
all times." Miss. Code Ann. § 41-29-509(1) (Rev.
2013). This specific issue was also not raised below, and
accordingly, is procedurally barred. Bates, 879
So.2d at 522 (¶7). In spite of the bar, again, Jackson
would not have a reasonable expectation of privacy while in
custody using a jailhouse telephone. Section 41-29-501
defines the terms of the Act. "'Oral
communication' means an oral communication uttered by a
person exhibiting an expectation that the communication is
not subject to interception under circumstances
justifying that expectation." Miss. Code Ann.
§ 41-29-501(j) (Rev. 2013).
In United States v. Van Poyck, 77 F.3d 285 (9th Cir.
1996), the defendant, upon arrival at a detention center,
called several friends and made incriminating statements. The
detention center recorded and selectively monitored all
inmate telephone conversations and required inmates, upon
arrival, to sign a form consenting to the monitoring. Signs
were also posted above the telephones stating the telephones
would be monitored. Id. at 287. The defendant
challenged the detention center's recording policy under
the Fourth Amendment. Id. at 290. The United States
Court of Appeals for the Ninth Circuit stated that
"[t]he Fourth Amendment is not triggered unless the
state intrudes on an area 'in which there is a
constitutionally protected reasonable expectation of
privacy.'" That expectation "exists only if (1)
the defendant has an 'actual subjective expectation of
privacy' in the place searched and (2) society is
objectively prepared to recognize that expectation."
Id. at 290 (quoting United States v. Davis,
932 F.2d 752, 756 (9th Cir. 1991)). The Ninth Circuit found
that neither expectation existed, holding "any
expectation of privacy in outbound calls from prison is not
objectively reasonable and . . . the Fourth Amendment is
therefore not triggered by the routine taping of such
calls." Id. at 290-91. See United States v.
Gangi, 57 Fed.Appx. 809 (10th Cir. 2003) (unpublished)
(following Van Poyck, 77 F.3d at 290-91 for the
proposition that the Fourth Amendment is not triggered by
jail-telephone calls when no sign is posted over telephone
because there is no objective expectation of privacy in
outbound calls from prison); United States v.
Robinson, No. 08-60179-CR, 2008 WL 5381824, at *14 (S.D.
Fla. Dec. 19, 2008) (following Van Poyck, 77 F.3d at
290-91 for the proposition that there is no expectation of
privacy for a defendant's voluntary jail-telephone calls
when notice is posted near the telephone that calls are
recorded and monitored); State v. Martin, No.
2017-UP-246, 2017 WL 4641406, at *2 (S.C. Ct. App. 2017)
(following Van Poyck, 77 F.3d at 290-91 for the
proposition that the defendant had neither subjective nor
objective expectation of privacy when jail-telephone calls
were monitored; he was notified of it; and prisoners have
severely curtailed privacy rights to preserve jail security).
Here, Jackson claims he was not advised that his telephone
calls would be recorded; therefore, he might present a
question of whether he had a subjective expectation of
privacy; however, under Van Poyck, we find that such
expectation is not justified under these circumstances.
Further, Jackson has not proved that the Act applies to the
Clarksdale Police Department as Mississippi Code Annotated
section 41-29-535 (Rev. 2013) exempts "a subscriber to a
telephone operated by a communication common carrier and who
intercepts a communication on a telephone to which he
subscribes." The Clarksdale Police Department may well
be the "subscriber" to the telephone at issue.
Accordingly, the trial court did not abuse its discretion by
admitting the properly authenticated telephone recordings
Jackson claims the trial court erred in denying Jackson's
motion to suppress evidence obtained through an unlawful
search warrant. He argues that the warrant was based on
unreliable facts from the CI, the information was stale, and
the magistrate issuing the warrant was not neutral. We shall
discuss each argument in turn.