James Troy Wolverton v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01279-COA
JAMES TROY WOLVERTON
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
8/5/2002
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
DEBORAH J. GAMBRELL
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
C. GRANT HEDGEPETH
CRIMINAL - FELONY
GUILTY OF SALE OF A CONTROLLED
SUBSTANCE.
SENTENCED TO TWENTY-FIVE YEARS
AFFIRMED - 11/18/2003
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
MYERS, J., FOR THE COURT:
¶1.
On July 12, 2002, a trial was held in the Circuit Court of Jones County. The jury found Troy
Wolverton guilty of the sale of a controlled substance. He was sentenced to a term of twenty-five years
in the custody of the Mississippi Department of Corrections pursuant to Section 41-29-39(b)(1) of the
Mississippi Code Annotated with ten years were suspended, . On August 2, 2002, Wolverton filed this
appeal raising the following issues:
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE?
II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE
SUBMISSION OF THE STATE’S JURY INSTRUCTION?
III. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
STATEMENT OF FACTS
¶2.
On March 6, 2001, Bounds, an officer with the Laurel Police Department, met with Williams, a
confidential informant working with the police department, for the purpose of making a “controlled buy”
from Wolverton. Williams contacted Wolverton and the two men arranged to meet at a gas station.
¶3.
Before this took place, Williams met with Bounds and other officers. Williams and his automobile
were thoroughly searched for money and contraband. He was provided a coat by the police that was fitted
with a video camera disguised as a button. Williams was also fitted with an audio device disguised as a
beeper. Officer Bounds gave Williams money to purchase the drugs from Wolverton. Then, Bounds, along
with other officers from the Laurel Police Department, followed Williams to the designated site.
¶4.
Williams met Wolverton at the gas station and gave him money. No drugs were transferred at this
time. However, Wolverton asked Williams to meet him later at Legion Field, a municipal ballpark located
in Laurel. At this second meeting, Wolverton allegedly gave Williams a bag containing a small amount of
crack cocaine. Upon receiving the cocaine, Williams drove directly to the location where he had met
Bounds and the other officers beforehand. Williams gave Bounds the bag he received from Wolverton.
Williams and his automobile were again searched thoroughly for money and contraband. He returned the
equipment to Officer Bounds and was paid for his services.
¶5.
On September 13, 2001, Wolverton was indicted for the sale of a controlled substance within
1500 feet of a ball park in violation of Sections 41-29-139(a)(1) and 41-29-142(1) of the Mississippi
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Code Annotated. On December 21, 2001, Wolverton was arraigned and a trial was held on June 12 of
the following year. The State called Bounds and Williams to testify. It also called Downey, a forensic
scientist with the Mississippi Crime Lab, who testified that the substance was crack cocaine. The trial court
denied Wolverton’s motion for a directed verdict. Wolverton did not testify on his own behalf or offer any
witnesses. The trial court also denied Wolverton’s requests for a mistrial and the jury returned a verdict
of guilty. Feeling aggrieved by this result, Wolverton filed a notice of appeal and a motion for an appeal
bond. On August 5, 2002, the trial court issued an order granting Wolverton’s motion and he was released
on bond pending this appeal. Finding no error, we affirm.
LEGAL ANALYSIS
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE?
¶6.
Wolverton contends that the verdict was against the overwhelming weight of evidence. He also
claims that the evidence presented was insufficient to allow a guilty verdict. Wolverton maintains that the
trial court should have granted his motion for a directed verdict.
¶7.
The standard of review concerning the sufficiency of evidence is quite limited. Brown v. State, 796
So. 2d 223, 225 (¶ 6) (Miss. 2001) (citing Clayton v. State, 652 So. 2d 720, 724 (Miss. 1995)). All
of the evidence must be considered in the light most consistent with the verdict. Id. In addition, the
prosecution is given the benefit of "all favorable inferences that may reasonably be drawn from the
evidence." Clayton, 652 So. 2d at 724. This Court “will not reverse unless the evidence with respect to
one or more of the elements of the offense charged is such that reasonable and fairminded jurors could only
find the accused not guilty.” Brown, 796 So. 2d at 225 (¶ 6) (citing McClain v. State, 625 So.2d 774,
778 (Miss.1993)).
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¶8.
Wolverton argues the State did not prove that he sold the cocaine to Williams, the confidential
informant. Specifically, Wolverton contends the State failed to prove that Wolverton had knowledge of
the transaction and that Wolverton had actual or constructive possession of the cocaine. Wolverton
emphasizes the fact that the audiotape never mentions the word “drugs” and the videotape does not show
the cocaine ever exchanging hands. In other words, Wolverton argues that it is essentially Williams’s word
against his own.
¶9.
The State argues that it did, in fact, meet the necessary burden of proof. In support of this, the
State contends that it presented the unequivocal testimony of Williams which was corroborated by Officer
Bounds. The State further argues that Wolverton presented no evidence to the contrary.
¶10.
It is the duty of the jury to listen to all of the testimony and determine who is a credible witness and
whether the evidence supports the crime charged. Bridges v. State, 716 So. 2d 614, 617 (¶ 15) (Miss.
1998). In addition, it appears from the record that the State presented each element of the crime.
¶11.
Officer Bounds testified as to the scenario and the use of the confidential informant. He testified
as to the procedures followed, establishing location and the chain of custody of the cocaine purchased on
the day in question. Williams identified Wolverton in the courtroom and gave a detailed narrative of the
transaction. The State also called a scientist from the crime lab who was qualified as an expert in his field.
He testified that the substance presented for testing was, in fact, cocaine.
¶12.
Accordingly, there was legally sufficient evidence to support each and every element of the crime
for which Wolverton was charged. As a result, the trial court was correct in denying Wolverton’s motion
for a directed verdict. Furthermore, when viewing all evidence in the light consistent with the verdict and
giving the State all favorable inferences which may be drawn from the evidence, this Court holds that the
verdict was not against the overwhelming weight of evidence.
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II. DID THE COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE SUBMISSION
OF THE STATE’S JURY INSTRUCTION?
¶13.
Wolverton argues that the trial court committed reversible error in allowing the State’s submission
of jury instruction “S-1,” which was a request for the jury to consider finding Wolverton guilty of the sale
of a controlled substance as opposed to the charge of “sale of a controlled substance within 1500 feet of
a ball field,” which was the charge on which he was indicted. Wolverton claims that the trial court acted
improperly in allowing the return of a guilty verdict for a charge other than that of the indictment.
¶14.
In determining whether error lies in the granting or refusal of a particular jury instruction, “the
instructions given must be read as a whole.” Fultz v. State, 822 So.2d 994 (¶ 11) (Miss. Ct. App. 2002).
If the instruction “fairly announces the law of the case and creates no injustice, [then] no reversible error
will be found.” Id.
¶15.
The trial transcript reveals that Wolverton’s attorney did not object to the State’s jury instruction.
Accordingly, this issue is not eligible for our review. Johnson v. State, 768 So. 2d 934, 938 (¶ 16) (Miss.
Ct. App. 2000). In addition, the language “within 1500 feet of a ballpark” is not a substantive element to
this offense. Swington v. State, 742 So. 2d 1106, 1118 (¶ 45) (Miss. 1999). Instead, it relates only to
the imposition of an enhanced penalty upon conviction.
¶16.
In the case, sub judice, Wolverton was sentenced to a twenty-five year term with ten years
suspended. The maximum penalty for the sale of the particular amount of cocaine at issue is thirty years.
Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2001). If the sale takes place within 1500 feet of a ball park,
then the court, in its discretion, has the authority to double the sentence allowed under § 41-29-139(b).
Miss. Code Ann. § 41-29-142(1) (Rev. 2001).
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¶17.
Since Wolverton received five years less than the maximum allowed for the simple sale of a
controlled substance, he was not prejudiced by the omission of the language “within 1500 feet of a
ballpark.” In fact, inclusion of that particular language would only serve to increase Wolverton’s sentence
due to the fact that the sale took place at a ball park. Therefore, the trial court did not commit reversible
error in allowing the jury instruction.
III. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
¶18.
Wolverton raises two arguments concerning the adequacy of his legal representation. First, he
contends that he was denied effective assistance because an agreed order substituting counsel was entered
only five days before trial. Second, Wolverton contends that he was denied effective assistance of counsel
because his attorney failed to object to the State’s jury instruction, S-1.
¶19.
The standard for review concerning a claim for ineffective assistance of counsel is well settled. The
standard was first announced in Strickland v. Washington, 466 U. S. 668, 687(1984). Mississippi
adopted the Strickland standard in Stringer v. State, 454 So. 2d 468 (Miss. 1984). Under this test, two
factors must be shown before counsel can be determined to have been ineffective. Rankin v. State, 636
So. 2d 652, 656 (Miss. 1994). First, that counsel’s performance was deficient. Id. Second, that the
defendant was prejudiced by his counsel’s mistakes. Id. The defendant has the burden of proof on both
of these prongs. Id. In addition, there is a strong but rebuttable presumption that counsel’s performance
falls within the wide range of reasonable professional assistance. Colenburg v. State, 735 So. 2d 1099,
1102-03 (¶ 9) (Miss. Ct. App. 1999). To overcome this presumption, the defendant must show that but
for his attorney’s errors, there is a reasonable probability that he would have received a different result in
the trial court. Colenburg, 735 So. 2d at 1103 (¶ 9).
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¶20.
Wolverton alleges that his attorney, J. Ronald Parish, did not have sufficient time to prepare an
adequate defense for trial because he was designated as counsel only five days before the trial began. In
his brief, Wolverton alleges that he maintained representation through the public defender’s office almost
up until the day of trial. The record, however, does not support this.
¶21.
On December 21, 2001, at Wolverton’s arraignment, he was represented by private counsel. The
attorney’s name was Anthony J. Buckley. On June 7, 2002, an agreed order substituting counsel from
Buckley to Parish was entered. The stated reason for the substitution was a conflict of interest. On June
12, 2002, a trial was held in which Parish represented Wolverton.
¶22.
Wolverton produced no evidence of why his attorney’s representation was deficient. Furthermore,
Wolverton produced no evidence why the substitution of counsel prejudiced him. As a result, the
substitution of attorneys five days before trial does not result in a denial of effective assistance of counsel.
¶23.
Wolverton further alleges that he was prejudiced by his attorney’s failure to object to the State’s
jury instruction, S-1. Wolverton, however, cannot show that he was prejudiced by his attorney’s failure
to object. To the contrary, although the State proved that the sale was completed at a ball park, the result
is that Wolverton was convicted of the simple sale of cocaine and received an unenhanced sentence. If
Wolverton’s attorney objected to the entry of the instruction, he would have been placing Wolverton in
jeopardy of receiving an enhanced sentence which could have resulted in the doubling of the original
sentence.
¶24.
We hold that Wolverton has failed to meet either requirement under Strickland. As a result,
Wolverton has failed to rebut the presumption that Parish acted within the wide range of reasonable
professional assistance. Wolverton was not denied effective assistance of counsel.
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¶25. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF
CONVICTION OF SALE OF A CONTROLLED SUBSTANCE WITHIN 1500 FEET OF A
BALL PARK AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.
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