Reta Lawrence v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-01061-COA
RETA LAWRENCE A/K/A RETA FAYE LAWRENCE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/6/2004
HON. ROBERT P. KREBS
GEORGE COUNTY CIRCUIT COURT
ROSS PARKER SIMONS
OFFICE OF THE ATTORNEY GENERAL
BY: GLENN WATTS
ANTHONY LAWRENCE, III
CRIMINAL - FELONY
CONVICTION OF TRANSFER OF A
CONTROLLED SUBSTANCE AND SENTENCE
OF THIRTEEN YEARS, FIVE SUSPENDED, IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND
PAYMENT OF A $5,000 FINE.
AFFIRMED: 10/18/2005
BEFORE KING, C.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Reta Lawrence was convicted by a George County jury of transfer of a controlled substance.
Feeling aggrieved, Lawrence appeals her conviction, arguing: (1) that her trial took place outside the 270day statutory time limit; (2) that the jury in her case was never placed under oath; and (3) that the State
failed to meet its burden of proof in her case because it did not prove that Oxycodone is a Schedule II
controlled substance.
¶2.
We find no reversible error and therefore affirm Lawrence’s conviction and sentence.
FACTS
¶3.
On May 18, 2000, Reta Lawrence was arrested for transferring Oxycodone, a controlled
substance. Lawrence transferred thirty-seven pills, later determined to be Oxycodone, to undercover
police officer Antoine Battle during a police sting operation. Lawrence was indicted by a George County
grand jury on January 16, 2001, for transfer of a controlled substance. Lawrence was arraigned on April
23, 2001. Her trial began on February 3, 2004, nearly three years after her arraignment.
¶4.
At trial, Jason Alexis, the Mississippi Crime Laboratory analyst who examined the pills taken during
Lawrence’s arrest, was called to testify for the State. Alexis testified that he had tested the pills and found
them to contain Oxycodone and aspirin. Defense counsel did not cross examine Alexis as to this finding.
Lawrence moved for a directed verdict after the State rested, but her motion was denied. She then testified
in her own defense, admitting that she had been at the scene of the crime, but denying that she had
transferred any substance to Battle. After the defense rested its case, the jury retired to deliberate and
returned a verdict of guilty. Additional facts follow as necessary below.
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) The 270-day Statute
¶5.
Under Mississippi statutory law, a criminal trial must begin no more than 270 days after a
defendant’s arraignment, unless good cause is shown and the court grants leave for the delay. Miss. Code
Ann. §99-17-1 (Rev. 2000). In Lawrence’s case, approximately 1,015 days passed between the date
of her arraignment and trial. Only delays that a defendant is responsible for count against the defendant in
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determining whether her trial has started within the statutory time limit. Baine v. State, 604 So. 2d 258,
264 (Miss. 1992). In other words, although there were over 1,000 days between Lawrence’s arraignment
and her trial, the time period may still be within the statutory limit if Lawrence was responsible for enough
of those delays. For the reasons below, we find that the prosecution was responsible for less than 270
days of the time between Lawrence’s arraignment and trial, and therefore affirm the finding of the court
below.
¶6.
The State concedes that it is responsible for 212 days of the delay between Lawrence’s
arraignment and her trial. Therefore, if the State is responsible for fifty-nine more days, Lawrence’s trial
will have been in violation of the statutory limit. Especially disputed by Lawrence and the State is a set of
days in April or July of 2002. This disputed time period would be sufficient to place the case over the
statutory limit if construed against the State. The State claims that the disputed delay was the result of the
State’s reasonable belief that Lawrence might negotiate a plea bargain.
Lawrence contests this
characterization and argues that she should not be held accountable for the time absent a clear explanation
in the record of the reason for the delay. At particular issue below was an audiotape that Lawrence argued
might shed light on the reason behind the 2002 delay. Lawrence has not supplied any additional evidence
on appeal regarding the audiotape in question, nor has she otherwise explained the delay. Absent
additional evidence showing that the delay was not for good cause, we defer to the trial court’s finding that
good cause existed for the delay. As stated by the Mississippi Supreme Court: “A finding of good cause
is a finding of ultimate fact, and should be treated on appeal as any other finding of fact; it will be left
undisturbed where there is in the record substantial credible evidence fromwhichit could have been made.”
Walton v. State, 678 So. 2d 645, 648 (Miss. 1996).
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¶7.
Lawrence urges us to find that several of these delays should not count against her because her
express agreement to them does not appear in the record. These delays were all asked for or authorized
by Lawrence’s counsel. Lawrence cites no authority for her position that these delays should not be
counted against her. Since we know of no legal precedent that allows Lawrence relief on this point, we
find no error.
¶8.
As a last point, Lawrence asks us to reverse and remand her case for a hearing where the State
will have to show that there has been no prejudice to Lawrence before it can retry her. She bases this
request on State v. Harrison, 648 So. 2d 66 (Miss. 1994). Harrison only applies, however, when there
is a clear violation of the 270-day statute: “We need not apply our more recent case of State v. Harrison
. . . . Harrison was a case involving a clear violation of the 270-day statute, whereas the case sub judice
absolutely is not.” McGhee v. State, 657 So. 2d 799, 805 (Miss. 1995). As in McGhee, the case before
us is not a clear violation of the 270-day statute. The hearing prescribed by Harrison only applies once
it has been determined that the 270-day statute has been violated. The record in Lawrence’s case shows
that the 270-day statute has not been violated; therefore, Harrison has no relevance to our decision.
¶9.
Lawrence has not appealed on the basis of her constitutional right to a speedy trial, so we do not
address that issue here.
(2) Alleged Lack of Oath Given to Jury
¶10.
Lawrence argues that her conviction should be overturned because the trial court failed to
administer the petit juror’s oath (or any other oath) as required by Mississippi Code Annotated section 135-71 (Rev. 2002).1 Lawrence contends that this alleged lack of an oath violated her fundamental rights
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The language of the oath given in the statute reads as follows: “You, and each of you, do solemnly
swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be
submitted to you, or left to your decision by the court, during the present term, and true verdicts give
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and constitutes plain error such that we must reverse. Since Lawrence failed to object to any lack of oath
at trial, she must prove that the lack of jury oath constitutes plain error: “This Court has held that a party
who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal,
because it is otherwise procedurally barred.” Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001).
Plain error is found when there is “an error. . . that. . . resulted in a manifest miscarriage of justice. Further,
this Court applies the plain error rule only when it affects a defendant’s substantive/fundamental rights.”
Id. (citations omitted). In other words, for Lawrence to prevail on appeal, this Court would have to find:
(1) that there was error (in this case, that there was no oath given); (2) that the error resulted in a manifest
miscarriage of justice; and (3) that the error affected one of Lawrence’s substantive or fundamental rights.
¶11.
For there to be plain error in Lawrence’s case, Lawrence would have to show that there was no
oath given to the jury. In order to prove this, Lawrence must overcome a rebuttable presumption that the
judge in her case properly performed his duties by placing the jury under oath. Young v. State, 425 So.
2d 1022, 1025 (Miss. 1983). In Woulard v. State, a boilerplate warning was sufficient to show that the
jury had been sworn, even when the record did not reflect whether the jury was sworn. Woulard v. State,
832 So. 2d 561, 567 (¶¶24-25) (Miss. Ct. App. 2002). A similar boilerplate warning was present in
Lawrence’s case, and there are references throughout the record by the judge, prosecutor and even
Lawrence’s own counsel to an oath being given. Therefore, Lawrence has not presented any evidence
sufficient to overcome the presumption that the judge properly performed his duties in swearing the jury.
¶12.
Lawrence contends that Gaskin v. State, 873 So. 2d 965 (Miss. 2004) requires us to find that
there was no oath given to the jury in her case. In Gaskin v. State, a jury was chosen; the defendant then
according to the evidence. So help you God.”
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raised a successful Batson challenge, and a mistrial was declared. Id. at 967 (¶9). The defendant was
retried and, on appeal, claimed that his double jeopardy rights had been violated because of a boilerplate
statement in the mistrial order that the jury had been empaneled and sworn. Id. at (¶7). In fact, it was clear
in Gaskin that the jury had never been sworn; as a result, the Mississippi Supreme Court declared that
jeopardy had never attached. Id. at (¶12). Lawrence would have us read this case as providing relief for
her because there is a boilerplate statement that the jury was administered an oath in her record, but no
transcription of the actual jury oath. We believe that the holding of Gaskin would have to be seriously
strained to provide relief for Lawrence.
¶13.
In Gaskin, the record was completely void of any reference to an oath given to the jury, and in fact,
when the trial court was required to supplement the record on the issue of whether an oath had been given
to the jury, the unequivocal finding was that no jury had been sworn. Gaskin, 873 So. 2d at (¶12). The
record and the boilerplate oath statement in Gaskin contradicted each other; there is no contradiction in
the case at bar. Here, the prosecutor, judge, and Lawrence’s counsel all referred to the oath given to the
jury throughout the proceedings. The record merely corroborates what the boilerplate warning states.
¶14.
Since Lawrence has failed to provide evidence sufficient to prove that no oath was administered
in her case, no reversal is required.
(3) Oxycodone as a Schedule II Controlled Substance
¶15.
Lawrence’s last argument is that her conviction should be reversed because the State failed to
prove that Oxycodone is a controlled substance. The statute that Lawrence was charged and convicted
under makes it a crime for anyone to “sell, barter, [or] transfer . .. a controlled substance.” Miss. Code
Ann. § 41-29-139(a)(1) (Rev. 2001). This section does not define what constitutes a “controlled
substance,”` but other sections of the code delineate some substances as controlled substances. For
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example, Oxycodone is listed as a controlled substance under Schedule II of the Mississippi Code. Miss.
Code Ann. § 41-29-115 (A)(a)(1)(xiv) (Rev. 2001). No testimony was offered by the State to prove that
Oxycodone is a Schedule II controlled substance. Therefore, the real question before us is whether the
State must have shown that Oxycodone is a Schedule II controlled substance as Lawrence urges or
whether the State needed only to prove that the substance in question is a statutorily controlled substance.
¶16.
The Mississippi Supreme Court has previously addressed this issue. In Thomas v. State, a
defendant appealed his conviction on the grounds that the State proved only that the defendant possessed
Diazepam, but did not prove that Diazepam was a controlled substance. Thomas v. State, 377 So. 2d
593, 594 (Miss. 1979). The court held:
[I]t is argued that there was no testimony that the drug involved was a controlled
substance, and that, therefore, appellant’s motion for a directed verdict at the conclusion
of the state’s case in chief should have been sustained. . . . We, however, find no merit in
the contention. At the date of the alleged crime. . . Diazepam was a controlled substance.
Proof that the sale and delivery was of diazepam sufficiently showed a sale and delivery
of a controlled substance.
Id. This holding has been affirmed by a more recent Mississippi Supreme Court case. In Hart v. State,
639 So. 2d 1313 (Miss. 1994), a defendant’s conviction for possession of marijuana was upheld even
though the State had not actually proved that marijuana was a Class I controlled substance.2 These two
cases make it clear that when a defendant is charged with possession of a specific substance that is defined
by statute as a “controlled” substance, the State need only prove that the substance is one that is listed in
2
“[The Mississippi Code] clearly provides that marijuana is a Schedule I controlled substance.
The indictment charged Hart with possession. . . of marijuana, a Schedule I controlled substance. Timothy
Gross, forensic scientist and expert in drug identification, testified that. . . the substance. . . was marijuana.”
Hart, 639 So. 2d at 1318. The Court then went on to cite and quote from Thomas in holding that Hart
was not entitled to relief on appeal.
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the schedules. Therefore, even though the State in Lawrence’s case did not offer any testimony as to the
Schedule II classification of Oxycodone, the State still proved all the essential elements of its case. By
proving that the pills that Lawrence transferred were Oxycodone, the State proved that Lawrence
transferred a controlled substance, because Oxycodone is in fact a Schedule II controlled substance. The
designation of Oxycodone as a controlled substance was not a question of fact for the jury.
¶17.
Lawrence urges us to consider Copeland v. State as providing support for Lawrence’s contention
that the State was required to prove that Oxycodone is in fact a Schedule II controlled substance.
Copeland, however, provides no relief for Lawrence. In Copeland, the State failed to include “3, 4"
before the name of the specific substance in question. Copeland v. State, 423 So. 2d 1333, 1336 (Miss.
1982). The court relied on a Fifth Circuit case that determined that the same omission meant that the State
had failed to allege a crime since the chemical name without the “3, 4" was not a statutorily controlled
substance. Id. at 1336-37 (citing United States v. Huff, 512 F.2d 66 (5th Cir. 1975)). The same is not
true in Lawrence’s case. Oxycodone is the full chemical name of the substance that Lawrence transferred.
Copeland would only provide relief to her if the chemical name listed in Schedule II was different from the
chemical name alleged in the indictment and proved at trial. Since it is not, we rely on Thomas and Hart
and hold that the State proved all the essential elements necessary for Lawrence’s conviction.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF
CONVICTION FOR TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCE OF
THIRTEEN YEARS WITH FIVE YEARS SUSPENDED AND EIGHT TO SERVE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND A FINE OF
$5,000 ,IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE
COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS AND
BARNES, JJ., CONCUR . ISHEE, J., NOT PARTICIPATING
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