Henry Denson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00860-COA
HENRY DENSON A/K/A JUNE-JUNE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/25/2002
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
WALTER E. WOOD
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
RICHARD D. MITCHELL
CRIMINAL - FELONY
SALE OF COCAINE- SENTENCED TO SERVE
THIRTY YEARS IN THE CUSTODY OF THE
MDOC WITH TEN YEARS SUSPENDED, PLUS
COURT COSTS, STATUTORY FEES AND
ASSESSMENTS IN THE AMOUNT OF $5,000
SUSPENDED PLUS FIVE YEARS OF
SUPERVISED PROBATION.
AFFIRMED - 10/28/2003
BEFORE MCMILLIN, C.J., MYERS AND GRIFFIS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Henry Denson, convicted by a Madison County Circuit Court jury of sale of cocaine, has appealed
his conviction to this Court. In his appeal, Denson claims three errors in the conduct of his trial that would
require this Court to reverse his conviction. They are that (a) the court erred in denying his requested
instruction telling the jury to view a cooperating individual’s testimony with caution, (b) the court erred in
admitting both the audiotape of the alleged drug transaction and a written transcript, and (c) that the verdict
of guilty was against the weight of the evidence. We find no merit in these issues and, for that reason, affirm
Denson’s conviction.
I.
Facts
¶2.
Testimony offered by the State indicated that Willie Jones, a civilian cooperating with law
enforcement, was able to purchase a supply of cocaine from Denson for $60 in cash that had been given
to Jones for that purpose by the officers. Jones was wearing a body wire during the transaction which
permitted the transaction to be recorded; however, no person directly observed the purported transaction
other than Denson and Jones. Law enforcement officers did, however, see Denson drive up to a
prearranged location and observed Jones entering Denson’s vehicle. Immediately thereafter, officers
retrieved a substance from Jones that ultimately proved to be cocaine. They also searched his person and
determined that the $60 in “buy” money previously given to him was no longer in his possession.
II.
A Limiting Instruction Regarding the Testimony of Willie Jones
¶3.
Denson requested the following instruction in regard to the jury’s consideration of Jones’s
testimony:
This Court instructs the jury that the law looks with suspicion and distrust on the testimony
of an alleged informant, and requires the jury to weigh same with great care and suspicion.
You should weigh the testimony from the alleged informant, and passing on what weight,
if any, you should give this testimony, you should weigh it with great care and caution, and
look upon it with distrust and suspicion.
¶4.
The trial court refused the instruction, and Denson now contends that this was reversible error. In
support of his argument, Denson relies primarily on the case of Moore v. State, 787 So. 2d 1282 (Miss.
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2001). In fact, the requested instruction is identical to the one the Mississippi Supreme Court considered
in reversing Moore’s conviction based on the trial court’s refusal to give it. Id. at 1286 (¶13).
¶5.
The facts in Moore, however, are substantially different. The relevant witness in that case was “a
jailhouse informant” whose sole contribution to the prosecution’s case was his contention that Moore had
confessed to the relevant crimes during a time they were both incarcerated. Id. at 1285 (¶9). The proof
showed that, after reporting the alleged confession, the informant was released from confinement and his
attorney testified that, but for the witness’s cooperation, he would not, in all likelihood, have been released.
Id. at 1286 (¶14). The supreme court, in finding that the absence of a cautionary instruction concerning
this testimony was reversible error, quite pointedly condemned what it referred to as “jailhouse snitch
testimony.” Id. at 1287 (¶15).
¶6.
It is true that cooperating individuals who participate in controlled buys such as occurred in this case
are often persons who are in trouble with law enforcement and agree to participate in such activity in the
hope of receiving more lenient treatment. Jones admitted on cross-examination that he had agreed to
cooperate with law enforcement to make three drug buys in hopes that it would help him in regard to
pending criminal charges against him. However, we conclude that Moore deals strictly with the limited
subject of uncorroborated testimony of jailhouse snitches and that the circumstances giving rise to Jones’s
testimony as a participant in this controlled drug buy are so significantly different factually that Moore has
essentially no application.
¶7.
In a somewhat different tack, the defendant in Jones v. State, 740 So. 2d 904, 909-10 (¶17)
(Miss. 1999), sought a cautionary instruction regarding the testimony of a cooperating individual on the
theory that, by participating in a drug transaction, the individual was in essence an accomplice. The
supreme court rejected the notion that the witness was an accomplice. Id. at 910 (¶18). However, the
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court did observe that the witness had participated in the transaction in hopes of receiving lenient treatment
on pending criminal charges and conceded that it was “true that the informant’s credibility was attacked.”
Id. at 909 (¶16). Nevertheless, the court noted that much of the information testified to by the witness was
corroborated by other evidence, and the court further noted that, even in the case of an accomplice’s
testimony, there is no absolute requirement for a cautionary instruction where corroborative evidence exists.
Id. at 909-10 (¶17).
¶8.
Though the legal theory upon which a claim for a cautionary instruction in Jones was somewhat
different than the one advanced by Denson, we conclude that the Jones decision stands for the proposition
that a cautionary instruction is not absolutely required in every case involving the testimony of a cooperating
individual, even when there is evidence of potential bias on the part of that witness in favor of the State;
especially where the testimony of the witness finds corroboration in other evidence. In the case now before
us, there was substantial evidence presented by the State, including an audiotape of the transaction, that
corroborated much of the witness’s testimony, and we are satisfied that the court did not err when it refused
the above-quoted instruction.
III.
Introduction of Audiotape and Transcription.
¶9.
Denson complains that the trial court permitted the introduction into evidence of both the actual
audiotape that the State contended was a recording of the relevant drug transaction as well as a written
document purported to be a transcription of the tape. He contends that this had the effect of putting
disproportionate emphasis on this particular aspect of the evidence and thereby improperly bolstering its
evidentiary value. The trial court rejected that argument when Denson’s counsel objected to the
introduction of the transcript, and Denson contends on appeal that this was reversible error.
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¶10.
This Court recently held that “transcripts to assist the jury in understanding taped conversations are
permissible where the trial judge instructs the jury that the tape is the primary evidence and any conflicts
should fall in favor of the recording.” Franks v. State, 749 So. 2d 1241, 1243 (¶7) (Miss. Ct. App.
1999).
¶11.
The trial court, in instructing the jury in this case, gave the following instruction:
The Court instructs the jury that the audiotape transcript is admitted for the limited and
secondary purpose of aiding the jury in following the content of the conversation. Whether
the transcript correctly or incorrectly reflects the content of the conversation is entirely for
the jury to determine, and that if the jury should determine that the transcript was in any
respect incorrect or unreliable, it should be disregarded to that extent.
¶12.
We find that the trial court complied appropriately with the applicable law regarding the purpose
for which a written transcription of an audiotape might be properly given to the jury and that the jury was
correctly instructed as to the limited purpose of that transcript. There was, therefore, no error.
IV.
Weight of the Evidence
¶13.
We have reviewed the evidence presented at trial in the light most favorable to upholding the jury’s
verdict as we are required to do by applicable case law. Gleeton v. State, 716 So. 2d 1083, 1087 (¶14)
(Miss. 1998) (citing Wetz v. State, 503 So. 2d 803, 808 (Miss.1987); Franklin v. State, 676 So. 2d
287, 288 (Miss.1996)). The evidence supporting a verdict of guilty has been previously summarized in Part
I of this opinion. Viewed in the light favorable to the prosecution’s theory of the case, we do not conclude
that the verdict was so against the weight of the evidence that the trial court erred in denying Denson’s new
trial motion on that ground.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY YEARS IN THE
CUSTODYOF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS
SUSPENDED, FIVE YEARS OF SUPERVISED PROBATION AND RESTITUTION OF
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$5,000, SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
MADISON COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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