Terrance Waterman v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01725-COA
TERRANCE WATERMAN A/K/A TIGER
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
07/28/2000
HON. MIKE SMITH
PIKE COUNTY CIRCUIT COURT
DAVID H. STRONG JR.
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:
DUNNICA O. LAMPTON
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
DISTRIBUTION OF COCAINE AND CONSPIRACY TO
DISTRIBUTE COCAINE: SENTENCED TO 30 YEAR
AND 5 YEAR CONCURRENT SENTENCES ON EACH
COUNT RESPECTIVELY IN THE CUSTODY OF THE
MDOC
DISPOSITION:
AFFIRMED - 3/19/2002
MOTION FOR REHEARING FILED: 4/4/2002; denied 5/28/2002
CERTIORARI FILED:
6/13/2002; denied 10/10/2002
MANDATE ISSUED:
10/31/2002
BEFORE McMILLIN, C.J., BRIDGES, AND IRVING, JJ.
BRIDGES, J., FOR THE COURT:
¶1. The Pike County grand jury indicted Terrance Waterman on February 24, 2000, for distribution of
cocaine and conspiracy to distribute cocaine. Following arraignment and an omnibus hearing, Waterman
was tried on July 24. A jury returned a guilty verdict, and the court sentenced Waterman to thirty years for
transfer of cocaine and five years for conspiracy, the sentences to run concurrently.
¶2. Waterman moved for a JNOV or new trial in the alternative. The court denied his motion. Waterman
filed a motion for an out of time appeal, which the court granted.
STATEMENT OF ISSUES
I. DID THE COURT ERR IN DENYING A MOTION FOR A JNOV OR A NEW TRIAL?
II. DID THE COURT ERR IN DENYING A MISTRIAL AFTER SAM SMITH"S
UNSOLICITED AND IMPROPER CHARACTERIZATION OF WATERMAN?
STANDARD OF REVIEW
¶3. The judge is given discretion to determine whether the remark was so prejudicial that a mistrial should
be declared. Roundtree v. State, 568 So. 2d 1173, 1177 (Miss. 1990). Relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice. M. R. E. 403.
This Court must determine whether the trial judge employed the proper legal standard in its fact-findings
governing evidence admissibility; if the trial court acted improperly, this Court applies a substantially
broader standard of review. Vaughan v. State, 759 So. 2d 1092, 1100 (¶23) (Miss. 1999).
FACTS
¶4. On July 22, 1999, Sam Smith entered an area of Summit, Mississippi called "the bottom." The police
placed Smith in "the bottom" as part of a sting operation to purchase illegal narcotics. As part of the sting,
Smith's car was outfitted with a video camera, and Smith was wired for sound. Smith met with Clayton
Wells, who learned that Smith wanted to buy drugs, and offered to take Smith where he could buy drugs.
Smith refused to leave "the bottom," and Wells offered to get him drugs from another source.
¶5. Smith testified that Wells entered a bar located in "the bottom" and returned in the company of the
defendant, Terrance Waterman, who gave crack cocaine to Wells, who in turn sold the cocaine to Smith.
While Wells and Smith both appeared in the videotape and on audiotape, neither the video nor audio
surveillance provided any evidence of Waterman's presence. Smith also testified that he knew Waterman as
a drug dealer; the court instructed the jury to disregard Smith's remark and denied the defense's motion for
a mistrial.
¶6. The two police officers managing the sting testified at Waterman's trial that they had no evidence beyond
Smith's testimony that Waterman was involved in the sale. Waterman denied ever being present at the sale.
Wells, who pled guilty to charges of sale of cocaine and conspiracy to sell cocaine, testified that Waterman
was not present, contradicting his plea to the extent that his plea inculpated Waterman in the conspiracy
with Wells.
¶7. In rebuttal to Waterman's testimony that he had never sold drugs, the State called Smith again, who
testified only that he had seen Waterman in "the bottom" prior to the sting.
ANALYSIS
I. DID THE COURT ERR IN DENYING A MOTION FOR A JNOV OR A NEW TRIAL?
¶8. Waterman moved for a directed verdict or a judgment notwithstanding the verdict on the grounds that
the overwhelming weight of the evidence militates against the jury verdict of guilty on both counts. When the
court considers a motion for a JNOV, it views the evidence in the light most favorable to the non-moving
party. Lane v. State, 562 So. 2d 1235, 1236-37 (Miss. 1990). The court's determination whether to
order a JNOV is discretionary, and will not be challenged unless the verdict is so contrary to the
overwhelming weight of the evidence that it is an unconscionable injustice. Id.
¶9. In this case, the evidence against Waterman consists solely of the testimony of Sam Smith, a confidential
informant for the police. Waterman took the stand, and his testimony consisted entirely of a denial of Sam
Smith's testimony, and a theory of misidentification. Applying the standard for a directed verdict, the trial
court found that the State had established a case strong enough to defeat Waterman's initial motion for a
directed verdict.
¶10. Following Waterman's testimony and Smith's rebuttal, the jury rendered a verdict of guilty on both
counts, and Waterman moved for a JNOV, or a new trial. Again, the state had met the burden of going
forward, and the evidence, when viewed in a light most favorable to the non-moving party, was sufficient to
sustain the verdict of the jury. Lane, 561 So. 2d at 1236. Smith's testimony is internally consistent, that is,
he is never caught in a lie, and clearly it held sufficient indicia of reliability to convince the jury, even after
Waterman's denials.
¶11. This is important because Mississippi has a long-standing policy of trusting jury verdicts as evinced by
the following cases: Jurors have a duty to weigh all relevant testimony for credibility; the court has no say on
witness credibility. Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). The testimony of a single
uncorroborated witness suffices to sustain a conviction, even with multiple witnesses testifying to the
contrary. Williams v. State, 512 So. 2d 666, 670 (Miss. 1987). The strength of testimony is not a function
of the number of witnesses. Spiers v. State, 231 Miss. 307, 313, 94 So. 2d 803, 806 (1957).
¶12. Taking these principles of law together with the evidence offered, this Court lacks sufficient reasons to
set aside the jury verdict and substitute its own judgment.
II. DID THE COURT ERR IN DENYING A MISTRIAL AFTER SAM SMITH"S
UNSOLICITED AND IMPROPER CHARACTERIZATION OF WATERMAN?
¶13. Smith testified in response to cross-examination, in reference to Waterman:
"Yes sir, I knew him as the street name Tiger, that the [sic] person you could buy a large quantity of
drugs from."
¶14. Waterman promptly objected, and at the bench the judge agreed that he would order the jury to
disregard Smith's statement as improper. The jury agreed by nodding that they would disregard Smith's
statement as to Waterman's status as a drug dealer. The court by its actions affirmatively cured any error
arising from the unfortunate testimony.
¶15. It is presumed that jurors follow the instructions of the court. Payne v. State, 462 So. 2d 902, 904
(Miss. 1984). If the presumption were otherwise, it would mean our jury system was fatally flawed.
Johnson v. State, 475 So. 2d 1136, 1142 (Miss. 1985). The trial judge is in the best position to determine
if there has been any prejudicial effect from the objectionable remark, and has discretion to determine
whether the remark was so prejudicial that a mistrial should be declared. Roundtree v. State, 568 So. 2d
1173, 1177 (Miss. 1990).
¶16. The court issued an instruction to the jury, and there is no suggestion that the jury was tainted by the
mere utterance of the contested phrase, as they agreed to disregard Smith's statement. Since no error
appears on the face of the record, and Waterman cannot provide any extrinsic evidence of prejudice, the
court's ruling should stand.
CONCLUSION
¶17. Waterman alleges errors in his jury trial that at first blush indicate a miscarriage of justice. Due to the
court's swift action and restraint by the State, no errors exist. Waterman's first assignment of error, that the
court failed to order a new trial in the face of overwhelming evidence, does not stand up. Since he failed to
impeach the State's chief witness, that witness's testimony holds up the State's burden of going forward with
the evidence
¶18. Waterman's second assignment of error, that Smith's improper testimony prejudiced his case, is belied
by the record. The jury agreed before the court on their oaths as jurors to disregard the potentially
prejudicial testimony. Since Waterman offers no proof of bias or prejudice other than a properly rendered
verdict of guilt, this assignment of error cannot stand up under its own weight.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF
COUNT I DISTRIBUTION OF COCAINE AND SENTENCE OF THIRTY YEARS AND
COUNT II CONSPIRACY TO DISTRIBUTE COCAINE AND SENTENCE OF FIVE YEARS
TO RUN CONCURRENTLY TO SENTENCE IN COUNT I, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $10,000 AND PAY $1,000 TO
THE CRIME VICTIM COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO PIKE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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