Robert E. Byrd v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-00814-COA
ROBERT E. BYRD
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:
APPELLEE
05/07/2001
HON. KEITH STARRETT
WALTHALL COUNTY CIRCUIT COURT
JACK G. PRICE
OFFICE OF THE ATTORNEY GENERAL
JEAN SMITH VAUGHAN
BRANDON WAYNE FRAZIER
CRIMINAL - FELONY
UNLAWFUL SALE OF COCAINE-SENTENCED
TO 15 YEARS, TO SERVE THE FIRST 8 YEARS,
WITH THE LAST 7 YEARS TO BE SERVED ON
POST-RELEASE SUPERVISION AND PAY A
FINE OF $5,000.
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART- 1/7/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
KING, P.J., FOR THE COURT:
¶1.
Robert E. Byrd was found guilty in the Circuit Court of Walthall County, Mississippi of the unlawful
sale of cocaine. He was sentenced to a term of fifteen years in the custody of the Mississippi Department
of Corrections, to serve the first eight years and the last seven years to be served on post-release
supervision and ordered to pay a fine and other court costs. Aggrieved by his conviction, Byrd has
appealed and raised the following issues:
I. Whether the trial court erred in allowing the identification of Byrd in the courtroom based on the pre-trial
viewing of photographs of Byrd.
II. Whether the verdict was against the weight and credibility of the evidence.
FACTS
¶2.
On January 11, 2001, confidential informant Louis Pearley worked with Officer Arzetto Mark of
the Walthall Tylertown Narcotics Task Force to set up an "undercover buy" to purchase narcotics in the
Walthall County area. Officers Chad McElveen and Brandon Bright participated by conducting
surveillance of the "controlled buy."
¶3.
In preparation for the controlled buy, Pearley met with the officers at a pre-arranged location where
he was searched. Officer McElveen put a body wire on Pearley and gave him forty dollars (money from
Walthall Tylertown Task Force funds) to purchase the narcotics. Pearley used one of the law enforcement
vehicles during the controlled buy. The officers placed a video camera and an audio transmitter in the
vehicle. The officers conducted surveillance by listening to the audio transmitter when Pearley was no
longer in sight.
¶4.
Pearley testified that after he and the vehicle were searched, the officers followed him and:
[H]e drove down St. Paul Road and I seen [sic] Rabbit standing up under a [sic] oak tree,
so I went down and made the loop and come [sic] in and parked, you know, where the
video camera would catch him. He came up to me -- when I come [sic] up there I said
'what's up, you on,' and he said, 'yeah, what you want.' I said 'I want a forty,' that means
forty dollars worth of crack cocaine. So he pulled out a little orange-looking pill bottle,
unscrewed it, give [sic] me two rocks. I handed him forty dollars and I drove back to the
pre-buy location, and at that time on the way back Agent Bright and them [sic] was [sic]
behind me and they followed me all the way back to the pre-buy location.
2
¶5.
When Pearley met with the officers at the pre-arranged location following the buy, he gave the
substance to Officer McElveen who placed it in an evidence bag and gave it to Officer Bright. The
substance was then sent to the Mississippi Crime Lab where it was later determined to contain cocaine.
¶6.
On February 7, 2001, Byrd was indicted for the unlawful sale of cocaine. At a jury trial on April
12, 2001, Byrd denied having committed the crime and testified that he had been at his sister's house on
the afternoon of the alleged sale. Byrd was convicted of the unlawful sale of cocaine, and sentenced to a
term of fifteen years in the custody of the Mississippi Department of Corrections, with the last seven years
to be served on post-release supervision and ordered to pay a fine and other court costs.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in allowing the identification of Byrd in the courtroom based
on the pre-trial viewing of photographs of Byrd.
¶7.
Byrd contends that the trial judge should not have allowed the in-court identification of him because
of the improper pre-trial viewing of photographs. He maintains that Pearley viewed the photographs of him
while they were "just laying" on the table during the trial and were not shown "in any sort of customary lineup" prior to trial.
¶8.
This Court reviews a challenge to the admissibility of identification testimony by determining
whether there is an absence of credible evidence to support the finding. Jackson v. State, 807 So. 2d 467
(¶8) (Miss. Ct. App. 2001).
¶9.
A review of the transcript shows that Pearley identified Byrd in the following manner:
Q. Let me ask you this question. Did you know Mr. Byrd prior to this date?
A. Yes, sir.
3
Q. And for the record, do you see Mr. Byrd in the courtroom today?
A. Yes, sir.
Q. Would you identify him?
A. Right there by Mr. Jack Price.
¶10.
There was no objection made at that time regarding the identification of Byrd. Pearley stated that
he had seen Byrd prior to the incident; however, he did not know Byrd's real name. Pearley indicated that
he knew Byrd by the nickname of "Rabbit." While the description Pearley gave to the officers of the seller
directly after the buy did not include information about the person having a moustache or goatee, Pearley
testified that it was Byrd whom he purchased the substance from and that he gave a description of Byrd
at the end of the videotape.
¶11.
Additionally, Pearley testified that he had not seen the videotape of the buy recently but had seen
the photographs of Byrd on the table at trial. The jury also heard identification testimony from others
naming Byrd as the person on the video involved in the transaction. At trial, Pearley's identification of Byrd
is described as follows:
Q. Have you seen any photographs of Mr. Byrd?
A. When?
Q. Recently.
A. Except for the ones right there on the table.
Q. Okay. Who showed you those?
A. Didn't nobody show them to me. I saw them. They had them setting [sic] on the table.
...
Q. And you haven't looked at any pictures?
4
A. No, sir.
Q. Haven't looked at the video?
A. No, sir, not since the day it happened.
Q. And there is no doubt in your mind who is sitting over there at that table?
A. The guy I bought crack cocaine from. Rabbit.
Q. Rabbit?
A. Yes, sir.
¶12.
There was no objection made following this testimony to suppress the identification on the ground
that the in-court identification was tainted or improper due to a pre-trial look at photographs. To preserve
an issue for consideration on appeal, a defendant must raise a timely objection. Longmire v. State, 749
So. 2d 366 (¶5) (Miss. Ct. App. 1999). Having failed to raise a timely objection, this issue is procedurally
barred. Id.
II.
Whether the verdict was against the weight and credibility of the evidence.
¶13.
Byrd contends that because the in-court identification lacked credibility, the verdict was not
supported by the evidence, and a directed verdict should have been granted.
¶14.
The standard of review for this Court regarding the weight and credibility of evidence is stated as
follows:
[W]e must, with respect to each element of the offense, consider all of the evidence--not
just the evidence which supports the case for the prosecution--in the light most favorable
to the verdict. The credible evidence which is consistent with the guilt must be accepted
as true. The prosecution must be given the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Matters regarding the weight and credibility to be
accorded the evidence are to be resolved by the jury. We may reverse only where, with
5
respect to one or more of the elements of the offense charged, the evidence so considered
is such that reasonable and fair-minded jurors could only find the accused not guilty.
Sheffield v. State, 749 So. 2d 123 (¶9) (Miss. 1999). Byrd asserts that the evidence was not credible.
¶15.
Byrd maintains that in viewing the video and seeing just one set of photographs of him "what fair-
minded juror could reasonably find that Pearley's in-court identification was not tainted?" At trial, the State
placed several photographs of Byrd in evidence to support the testimony of Officer Mark. Byrd's attorney
objected to the photographs based on "best evidence." The following discussion of that objection
transpired:
BY MR. GOODWIN (for the State): Your Honor, I would like to have these marked as
an exhibit to his testimony.
BY MR. PRICE (for the Defendant): Your Honor, we would object. The best evidence,
we would submit, would be Mr. Byrd himself. I believe the jury has had ample
opportunity to observe him, and they can decide for themselves without the benefit of a
photograph.
BY MR. GOODWIN: The problem, Your Honor, is that they are going to have the video
camera and photograph, and they're not going to be able to take Mr. Byrd back to the jury
room when they're looking, and I think for practical purposes the best evidence is these
photographs, because that's what they will have in the jury room.
BY THE COURT: All right. I think the photographs have probative value for the point of
identifying Mr. Byrd, so these photographs will be received into evidence as Exhibit S-2,
A B and C [sic].
¶16.
Although the photographs were received into evidence, they were not the sole basis for the
identification of Byrd. Pearley testified, without contradiction that he knew Byrd by the nickname of
"Rabbit," and that he purchased the drugs from Byrd. There existed sufficient credible evidence in the
record upon which the jury could have found Byrd guilty. This allegation is without merit.
¶17.
This Court notes that the trial court sentenced Byrd to a term of fifteen years in the custody of the
Mississippi Department of Corrections, to serve the first eight years and the last seven years to be served
6
on post-release supervision. Pursuant to Miss. Code Ann. Section 47-7-37 (Rev. 2000), a period of postrelease supervision shall not exceed five years. Ellis v. State, 748 So. 2d 130 (¶12) (Miss. 1999). This
Court therefore notes as plain error that portion of the sentence which imposes a period of post-release
supervision of seven years.
¶18.
We therefore affirm the conviction, but reverse and remand for the limited purpose of correcting
that portion of the sentence which requires post-release supervision for a period in excess of five years.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF
CONVICTION OF SALE OF COCAINE AND SENTENCE OF FIFTEEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT
YEARS TO SERVE AND $5,000 FINE IS AFFIRMED. THAT PORTION OF THE
SENTENCE IMPOSING SEVEN YEARS OF POST-RELEASE SUPERVISION IS
REVERSED AND REMANDED FOR CORRECTION OF SENTENCE CONSISTENT WITH
THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL
COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
