Derrick Manuel v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01095-COA
DERRICK MANUEL A/K/A 'DEE'
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
03/13/1997
HON. FORREST A. JOHNSON JR.
ADAMS COUNTY CIRCUIT COURT
GEORGE F. WEST JR.
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
RONNIE LEE HARPER
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
SALE OF A SCHEDULE II CONTROLLED SUBSTANCE,
COCAINE: SENTENCED TO SERVE TWENTY YEARS
IN THE MDOC AND TO PAY A FINE OF $5,000 AND
ALL COURT COSTS
DISPOSITION:
AFFIRMED - 01/08/2002
MOTION FOR REHEARING FILED: 1/22/2002; denied 4/9/2002
CERTIORARI FILED:
MANDATE ISSUED:
4/30/2002
BEFORE McMILLIN, C.J., LEE, AND MYERS, JJ.
LEE, J., FOR THE COURT:
¶1. In November of 1995, Thomas Lofton and Catherine Cross worked with Metro Narcotics Officers in
Natchez as confidential informants. On the appointed day for an undercover operation, Lofton and Cross
were patrolling in a van. Upon spotting Derrick Manuel, they stopped and asked if he would sell them some
cocaine. Manuel got into the van, and the informants transacted the sale with Manuel, paying with marked
bills. Body microphones worn by Lofton and Cross allowed the conversations inside the van to be
recorded, and the tape was played later to reveal the details of the sale. As he tried to flee the van, Manuel
was arrested by officers who were monitoring the sale.
¶2. An Adams County Circuit Court convicted Manuel of sale of cocaine. He was sentenced to serve
twenty years in the Mississippi Department of Corrections, plus fined five thousand dollars and ordered to
pay court costs of three-hundred ninety dollars. Manuel now appeals his conviction and sentence, arguing
that the trial judge erred in amending the indictment, that both his trial and appellate counsels were
ineffective, and that his motion for directed verdict was improperly denied. We review all the evidence and
briefs in this case and find that the issues raised are without merit; we affirm.
DISCUSSION OF THE ISSUES
I. DID THE JUDGE ERR IN ALLOWING THE INDICTMENT TO BE AMENDED?
¶3. Manuel argues that the judge abused his discretion in allowing his indictment to be amended.
Specifically, Manuel claims the amendment was one of substance and not form, which renders the
amendment improper. "[T]his Court conducts de novo review on questions of law. The question of whether
an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this
court." Simmons v. State, 784 So. 2d 985 (¶7) (Miss. Ct. App. 2001).
¶4. In the original and the amended indictments, undercover agent Catherine Cross's name alone was listed
on the original indictment as having purchased the cocaine from Manuel. The amendment to the indictment
added the name of the second informant, Thomas Lofton, as a purchaser as well. We first note no
indication that Manuel objected to the motion to amend the indictment. Thus, he is procedurally barred
from raising this issue now on appeal. Swington v. State, 742 So. 2d 1106 (¶14) (Miss. 1999). Looking
to the substance of his position, we find no merit to his argument.
"It is fundamental that courts may amend indictments only to correct defects of form, however,
defects of substance must be corrected by the grand jury." "[A] change in the indictment is permissible
if it does not materially alter facts which are the essence of the offense . . . as it originally stood or
materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's
case." "The test . . . is whether the defense as it originally stood would be equally available after the
amendment is made."
Mitchell v. State, 739 So. 2d 402 (¶5) (Miss. Ct. App. 1999) (citations omitted). Here, the only change
to the amendment was the addition of Lofton's name as a purchaser. The testimony and appeal briefs
indicate that Cross's whereabouts were unknown at the time of trial, rendering her unavailable as a witness.
However, her eyewitness testimony is not the only way to prove she was present at the purchase. Several
officers testified that Cross accompanied Lofton at the sale, Lofton testified Cross was with him, plus the
tape recording contained her voice, showing she was in the van during the transaction. Applying the
Mitchell standard, we find that the addition of the second informant's name in no way affected Manuel's
defense since other information was provided showing Cross was present with Lofton at the buy.
Therefore, we find that the amendment to the indictment was one of form and not substance and the court
had the authority to so amend. We affirm on this issue.
II. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE JURY VERDICT OF
GUILTY?
¶5. Manuel argues that the judge erred in denying his motion for directed verdict at the close of the State's
case-in-chief and in denying his motion for judgment notwithstanding the verdict ("JNOV"), or in the
alternative a new trial. Both directed verdicts and motions for JNOV concern sufficiency of evidence.
When reviewing an overruled motion for directed verdict or an overruled motion for JNOV, we view the
evidence in a light most favorable to the State. Lee v. State, 767 So. 2d 1025 (¶4) (Miss. Ct. App. 2000).
The credible evidence consistent with the defendant's guilt must be accepted as true, and we give the
prosecution all favorable inferences that may be reasonably drawn from the evidence. Id. We reverse only
where reasonable and fair-minded jurors could only find the accused not guilty. Id.
¶6. In arguing the evidence was insufficient to support the guilty verdict, Manuel first claims that Lofton's
testimony should have been discounted as untrustworthy. Testimony shows that the day before the
undercover operation, Lofton was stopped by officers and was found to have a crack pipe on his person.
In an apparent effort to win grace with the police, Lofton negotiated with the officers to allow him to work
undercover to catch drug dealers with whom he was familiar, one of whom was Manuel. Lofton testified
that he was not under the influence of drugs the day of the sting, but did admit that days before and after the
undercover operation, he had used drugs. Manuel argues that Lofton's testimony should not have been
trusted because he only acted in his own interests and would have done anything to please the officers in
exchange for the possibility of a light punishment for his drug infractions.
¶7. All of this information concerning Lofton's drug use was presented to the jury through Lofton's
testimony and testimonies of other officers. Manuel's attorney was given an opportunity to cross-examine
Lofton, too, to try to discount his testimony in front of the jury. The jury is the sole judge of credibility of
witnesses. Galloway v. State, 735 So. 2d 1117 (¶29) (Miss. Ct. App. 1999). The jury apparently found
Lofton's testimony, in combination with the other evidence presented, sufficient to prove Manuel's guilt, and
we will not disturb the jury's right to judge each witness for his or her truthfulness.
¶8. Manuel also argues that the case was not proven against him because the indictment stated he sold
drugs to Lofton and to Cross, yet Cross did not testify to prove she bought from Manuel. Manuel points
out the State alleged two parties had purchased drugs, and the State was required to show that both parties
indeed purchased drugs from him. Several officers testified as to the presence of Cross that day with Lofton
at the sting, plus Lofton testified that she accompanied him on the drug bust to make the situation appear
more natural. Also, the tape was played for the jury to hear the voices of Lofton, Cross, and Manuel.
Reviewing all of the evidence, there is little doubt Cross acted in partnership with Lofton to transact the buy.
The fact that Cross did not testify is of no consequence. Giving the State all favorable inferences and taking
the evidence in a light favorable to the State, we find the evidence was sufficient to support the verdict. This
issue has no merit.
III. WAS MANUEL'S COUNSEL INEFFECTIVE?
¶9. Manuel finally argues that his trial counsel was ineffective. He points out that he requested new counsel,
but the court denied his request and that this prejudiced his case. Specifically, Manuel claims his counsel
should have asked for a continuance and should have filed a motion for dismissal due to the alleged fatal
indictment. Manuel also points out that his counsel failed to meet with him and failed to subpoena a key
witness for his defense.
¶10. When reviewing claims of ineffective assistance of counsel, we cite to the familiar standard described
in Strickland v. Washington, 466 U.S. 668 (1984): Manuel must show that his counsel's conduct was so
deficient that he was not functioning as counsel guaranteed by the Sixth Amendment, and if his counsel is
shown to be ineffective, such deficient performance prejudiced his defense. Wilson v. State, 775 So. 2d
735 (¶8) (Miss. Ct. App. 2000). Looking to the allegations of ineffective performance, we cannot find any
deficiency that acted to prejudice Manuel's case. He mainly contends that the counsel should have objected
to the amendment to the indictment; however, we discussed previously in this opinion that the decision was
without error. Manuel also argues that his counsel did not exercise enough zeal in her efforts to locate,
examine, and call a "key witness" to the stand or in efforts to gain a continuance to allow more time to
locate this witness. Manuel never gives the name of exactly who this witness is, but we gather it was either
Cross or a man named "Floyd." We previously discussed that Cross's testimony was unnecessary as
superfluous to other evidence and testimony presented. If Manuel is referring to the man named Floyd, we
still find no error in the attorney's handling of this particular issue. The transcript reveals that Manuel told the
judge he had a witness who was present in the van the day of the alleged sale and that the name of the
witness was Floyd. Manuel gave no last name, but said Floyd did not live in Natchez. Manuel's attorney
told the judge that Manuel explained to her three weeks prior to trial that another person was in the van, but
he did not give his name and address to enable her to subpoena him for trial. This exchange with the judge
on the matter of "Floyd" occurred the day before the trial; the judge noted that a continuance was not
necessary on the basis of needing to locate this witness since no information was available on his
whereabouts.
¶11. Concerning Manuel's attorney's performance, we cannot find any deficiency. She orally requested a
continuance, which the judge did not grant, and she also explained to the judge why she would not call this
man as a witness, not having any information on his whereabouts for purposes of issuing a subpoena.(1)
Nonetheless, we find Manuel was not prejudiced by her actions in this regard, and this issue of ineffective
assistance of counsel has no merit.
¶12. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF
SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A $5,000 FINE IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE TAXED TO ADAMS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Incidentally, Floyd was located thereafter and was called to testify in Manuel's defense.
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