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Jackson v. State

Court of Appeals of Mississippi

July 17, 2018

HERMAN JACKSON JR. A/K/A HERMAN JACKSON III A/K/A MAIN A/K/A MAIN LOVE A/K/A HERMAN JACKSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 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

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          BARNES, J.

         ¶1. 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[1] and as a non-violent habitual offender. Jackson now appeals, raising several issues through his counsel and pro se.[2] Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. 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"[3] 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, [4] 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.[5] Officers therefore kicked the door in and conducted a thorough search of the home while Jackson remained in the patrol car.

         ¶3. 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 photographed.

         ¶4. 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.[6] 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.

         ¶5. 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).[7] 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. 2015).[8]

         ¶6. 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.

         ¶7. Additional facts will be discussed as they relate to the issues raised.

         ANALYSIS

         ¶8. 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 overlap.

         I. Police Department Telephone Calls

         ¶9. 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 recorded.

         ¶10. 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).

         ¶11. 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 investigators.

         ¶12. 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.

         ¶13. 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.

         ¶14. 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.

         ¶15. 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).

         ¶16. 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.

         ¶17. 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.

         ¶18. Accordingly, the trial court did not abuse its discretion by admitting the properly authenticated telephone recordings into evidence.

         II. Search Warrant

         ¶19. 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.

         A.Unreliable ...


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