Joel Guillen v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-KA-01089-COA
JOEL GUILLEN AND JORGE OMAR SALAZAR-RINCON
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANTS
APPELLEE
05/15/1998
HON. ROBERT H. WALKER
HARRISON COUNTY CIRCUIT COURT
MICHAEL W. CROSBY
MICHAEL C. HESTER
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CONO A. CARANNA II
CRIMINAL - FELONY
POSSESSION OF CONTROLLED SUBSTANCE WITH
INTENT TO DISTRIBUTE, TO WIT: COCAINE SENTENCED TO SERVE 30 YEARS.
AFFIRMED-09/03/2002
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
9/24/2002
BEFORE SOUTHWICK, P.J., THOMAS, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Joel Guillen and Jorge Omar Salazar-Rincon were found guilty of possession of cocaine with intent to
distribute by a Harrison County jury. Each was sentenced to thirty years in prison. Feeling aggrieved,
Guillen and Salazar-Rincon assert two issues on appeal: (1) did the trial court err by refusing to give a
spoliation of evidence jury instruction, and (2) did the trial judge err by failing to grant a judgment
notwithstanding the verdict or alternatively a new trial?
¶2. Finding no reversible error, we affirm.
FACTS
¶3. On December 15, 1994, Guillen, and Salazar-Rincon were passengers in a rental van accompanied by
Gustovo Velez, and Ivania Soza, both passengers, and, Maritza Becerra, the driver. The group was
traveling from Miami, Florida to New Orleans, Louisiana when they were stopped for speeding. Upon
observing suspicious and nervous behavior by the female passengers, the officer asked for permission to
search the van. Soza had rented the van and consented to a search. As a result of the search, the highway
patrol officer found a quantity of cocaine hidden in a door panel. All five were arrested, taken to the
highway patrol station, and interviewed individually. Apparently, no audio or video recording was made of
the interviews.
ANALYSIS AND DISCUSSION OF THE ISSUES
Denial of Spoliation Jury Instruction
¶4. The Appellants contend that Captain Roy Sandefer, investigator for the Mississippi Bureau of
Narcotics, should have recorded the interrogation either by audio, video, or contemporaneous notes. The
Appellants further contend that when evidence is destroyed, there is an inference that the evidence was
favorable to the defense. Therefore, the Appellants requested and were denied the following jury
instruction:
The court instructs the jury that if the notes of Roy Sandefer were not made available to the defendant
by the prosecution, then you may infer from such failure on part of the prosecution that if the notes
were in fact produced, the notes would be adverse or unfavorable to the prosecution's case.
¶5. In reviewing the denial of a jury instruction, the appellate court must consider not only the denied
instruction but all of the instructions which were given to ascertain if error lies in the refusal to give the
requested instruction. See Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997). However, if the
instruction does not fairly announce the law, the defendant is not entitled to it, and no reversible error will be
found. Id. "A defendant is entitled to have jury instructions given which present his theory of the case,
however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the
law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence." Humpheys
v. State, 759 So. 2d 368 (¶33) (Miss. 2000).
¶6. During the cross-examination, Captain Sandefer was questioned about his notes and his report. The
following exchange transpired:
Q. But you don't have a handwritten report, do you?
A. No, sir, I do not.
Q. You have no notes whatsoever?
A. No, sir.
Q. During the entire interview when you are documenting this case, you are not taking any notes?
A. I don't recall if I did or did not, sir.
Q. Well, is it your testimony that if you took notes that you would have destroyed them for some
reason?
A. Yes, sir.
Q. You destroyed evidence?
A. No, sir. I didn't destroy evidence. In my past experience, I -- this would be the first time I recall
that defense attorney asked for my Jinx(1) [sic] materials in state court. In Federal Court it is different,
sir.
Q. Isn't it better to go ahead and get rid of anything that can be inconsistent with what you put in your
report?
MR. SCHMIDT: I object to that, your Honor.
THE COURT: That is argumentative. Sustained.
****
Q. You have access to tape recorders, right?
A. At my MBN office, yes, sir.
Q. Are you telling me that the Highway Patrol station doesn't have tape recorders?
A. No, sir, as far as I know, if it is, I didn't have access to one.
Q. You didn't ask for one did you?
A. I don't recall if I did or not, sir. As far as I remember, I didn't.
Q. Nor did you ask for a video camera?
A. As far as I know, they don't [sic] have one set up at the Highway Patrol at that particular time.
Q. You could call and have one brought right over to you, couldn't you?
A. I guess I could have, sir. Yes, sir.
Q. And that certainly could have helped remove any kind of questions that we have about doubt,
memory, reliability, correct?
MR. SCHMIDT: I object to that argument.
THE COURT: Overruled.
Q. Correct?
A. It would be questions that you may have, yes, sir.
¶7. As the above colloquy shows, there is no proof that Captain Sandefer even took any notes. Even if he
had, that would not be proof necessarily of any evidence favorable to the defense. Furthermore, we know of
no authority in the jurisprudence of Mississippi making it a requirement that custodial interrogations be
recorded either by audiotape, videotape, or contemporaneous notes. See Williams v. State, 522 So. 2d
201, 208 (Miss. 1988). The State argues that the Appellants were not entitled to a spoilation of evidence
instruction based on the theory that the investigator should have taken notes of the interview. We agree with
this assertion.
Sufficiency and Weight of the Evidence
¶8. The Appellants argue that the evidence presented by the State was insufficient to support the guilty
verdict. The Appellants also argue that the investigator failed to document the substance of the interrogation,
left defendants in the interrogation room alone with evidence, and failed to have the door panel where the
cocaine was removed tested for fingerprints.
¶9. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So. 2d
774, 778 (Miss. 1993). The standard for reviewing a denial of motion for JNOV is to consider all the
evidence in the light most favorable to the verdict. Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987);
Harveston v. State, 493 So. 2d 365, 370 (Miss. 1986). We are bound to give the prosecution all
favorable inferences that can be reasonably drawn from the evidence. Hammond v. State, 465 So. 2d
1031, 1035 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984). This Court may reverse only
in an instance where in regard to one or more of the elements of the offense, a group of reasonable, fairminded jurors could only find the defendant not guilty. Harveston, 493 So. 2d at 370; Fisher v. State,
481 So. 2d 203, 212 (Miss. 1985).
¶10. Captain Sandefer testified that upon interviewing Salazar-Rincon, Salazar-Rincon stated that the
ladies, Becerra and Soza, had nothing to do with the cocaine and then Salaza-Rincon reduced his statement
to writing. Captain Sandefer also testified that after Salazar-Rincon wrote the statement, he told Captain
Sandefer that Salazar-Rincon was going to make $4,000 for taking the van to a parking lot in New
Orleans, leaving it for a couple of hours, and then picking it up later. Captain Sandefer stated that after
interviewing each of the parties, he and Officer Johnny Fox decided to allow the ladies to leave and to
charge Guillen, Salazar-Rincon, and Velez.(2) Further investigation revealed Guillen's fingerprint on the
wrappings containing the cocaine.
¶11. Salazar-Rincon testified that neither he nor the girls knew anything about the drugs. He further stated
that he never said that he was going to be paid $4,000. Salazar-Rincon stated that Soza was going to New
Orleans to do some private dances for money. In addition, he also testified that he and Captain Sandefer
never discussed Salazar-Rincon taking responsibility for the cocaine.
¶12. Guillen testified that during his interrogation, he told Captain Sandefer that the cocaine was not his, and
then he pushed the box of cocaine away from him that was sitting on the table. Guillen further testified that
the reason his fingerprints were on the wrappings of the cocaine is because Captain Sandefer pushed the
cocaine in Guillen's face and Guillen pushed it aside. Captain Sandefer was recalled in rebuttal and testified
that he did not pick up the box of cocaine and push it toward Guillen.
¶13. The Appellants had an opportunity at trial to point out all the weaknesses in the State's case. Our
mission here is not to decide if the State could have done a better job at investigating this case. The test is
not whether the State conducted a perfect and thorough investigation, but rather, if the evidence was
sufficient to support the verdict of guilty. The jury heard all the evidence and found the testimony of Captain
Sandefer more credible than that of Guillen or Salazar-Rincon. This finding was within their province.
Groseclose v. State, 440 So. 2d 297, 300-01 (Miss. 1983).
¶14. No issue was raised concerning the fact that the cocaine was found in a vehicle not owned or rented
by either of the Appellants. Therefore, we do not discuss the issue of constructive possession of the
cocaine. We find that the evidence presented fully supports the verdict and affirm on this issue.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND
SENTENCE OF THIRTY YEARS TO EACH APPELLANT TO BE SERVED IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. This is apparently a reference to the Jencks Act, 18 U.S.C. § 3500(b), which governs the defense
right to certain discovery in federal criminal cases.
2. The record is silent as to whether Velez was prosecuted.
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