Henry Seals v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01195-COA
HENRY SEALS
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
7/18/2002
HON. V. R. COTTEN
NESHOBA COUNTY CIRCUIT COURT
EDMUND J. PHILLIPS
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
KEN TURNER
CRIMINAL - FELONY
SALE OF COCAINE: SENTENCED TO 25
YEARS IN THE MDOC
AFFIRMED - 03/30/2004
BEFORE KING, P.J., LEE AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
On July 15, 2002, Henry Seals was convicted in the Circuit Court of Neshoba County on two
counts of selling cocaine. Seals was sentenced to twenty-five years on each count. The sentences were
to run concurrently, with five years suspended on each count, leaving twenty years to serve on each count.
Seals filed a motion for a new trial which was denied by the trial court. Feeling aggrieved, he appeals and
cites the following errors:
I.
II.
¶2.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTIONS TO
LEADING QUESTIONS.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO
THE INTRODUCTION OF THE VIDEOTAPE COPY OF THE ORIGINAL FILM
OF THE ALLEGED SALES OF COCAINE.
Finding no error, we affirm the ruling of the trial court.
FACTS
¶3.
With the use of a confidential informant, the Tri-County Narcotics Task Force began conducting
undercover purchases of illegal drugs on December 5 and 7, 2000. The agents, acting through confidential
informant Ross Kyzer, purchased two quantities of cocaine from Seals. The Narcotics Task Force
recorded both drug transactions on videotape.
¶4.
At trial, Kyzer testified that on December 5 and 7, 2000, he purchased rocks of cocaine from Seals
in twenty and forty dollar amounts respectively. The State offered into evidence the videotape of the
controlled buys and Kyzer identified Seals as the individual who sold him the drugs. Kyzer further testified
that the tape correctly and accurately depicted the undercover operations and that the copy of the tape was
an exact duplicate of the original tape.
¶5.
Agent Don Bartlett of the Tri-County Narcotics Task Force testified that the original videotape
recording would not be shown to the jury. Instead, an identical VHS copy of the mini-tape would be
played because it was easier to start and stop during the viewing. The VHS format would also enable the
jury to view the tape without the distortions that are caused by pausing a mini-tape. Bartlett testified that
he personally converted the tape from the mini form to VHS.
¶6.
Agent Barry McWhiter of the Tri-County Narcotics Task Force also testified for the State. Agent
McWhiter explained the procedures of an undercover buy and testified that Seals was the individual who
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sold confidential informant Kyzer the cocaine. Jamie Johnson, a forensic scientist with the Mississippi
Crime Lab in Meridian, testified that the two substances the State submitted for testing, were in fact
cocaine.
I.
DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S OBJECTIONS TO
LEADING QUESTIONS?
¶7.
Seals contends the trial court committed error by allowing the prosecutor to ask leading questions.
The following is the testimony to which the defense objected:
Q
(Thames) If you would, Mr. Kyzer, can you step back here so we can let you
look at this also? This will be the transaction that occurred on December the 5th,
2000; is that correct?
A
Yes, sir.
REPORTER'S NOTE: Video was shown to the Jury and viewed by the Court, defendant
and attorneys. Reporter was unable to hear the question and
answer because of the videotape that was being played.
THE COURT: As far as asking questions during the tape, you might want to stop it and
then say, What are you doing at that point?
MR. THAMES:
Okay.
THE COURT:
For clarification. So go ahead and develop that particular --
MR. THAMES:
Would you back it up?
MR. BARTLETT:
Yes.
REPORTER'S NOTE: Video played again.
MR. THAMES:
All right. Stop it.
Q
(Thames) All right. Can you tell us at this point when -- I understood you to say
that you had asked for a $20.00 amount of cocaine; is that correct?
A
Correct. Yes, sir.
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Q
And did you tell me that the defendant then left and walked away, assumingly to
go get the drugs?
A
Yes, sir.
Q
Then after he left did you back up to --
A
Because when I pulled --
MR. BROOKS:
Object to him leading, Your Honor.
THE COURT: Sustained.
Q
After you backed up, did you wait on the defendant?
A
Yes, I did. Yes, sir.
Q
Is this when the defendant returned?
A
Yes, sir.
MR. BROOKS: Object to him leading, Your Honor.
THE COURT: I don't think that is leading at that point. Overruled.
Q
Is this picture that is stopped on the television when the defendant has returned?
A
Yes, it is.
MR. BROOKS: Object to him leading, Your Honor.
THE COURT: Overruled.
¶8.
To justify a reversal because of leading questions requires a finding of manifest abuse of discretion
and a finding that the question influenced the answer, causing injury. Tanner v. State, 764 So.2d 385, 405
(¶ 58) (Miss. 2000) (citing Palmer v. State, 427 So.2d 111, 115 (Miss. 1983)). In Clemons v. State,
732 So.2d 883, 889 (¶ 25) (Miss. 1999), the supreme court defined a leading question as follows:
A leading question is one that suggests to the witness the specific answer desired by the
examining attorney. Trial courts are given great discretion in permitting the use of such
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questions, and unless there has been a manifest abuse of discretion resulting in injury to the
complaining party, we will not reverse the decision. This is because the harm caused is
usually inconsiderable and speculative, and only the trial court was able to observe the
demeanor of the witness to determine the harm.
¶9.
"To justify a reversal because of the allowance of a leading question, not only is it necessary that
there should have been a manifest abuse of discretion, but it is also necessary that the question shall have
influenced the answer and that injury resulted." Palmer v. State, 427 So.2d 111, 115 (Miss. 1983).
¶10.
The effect of leading questions in this case did no harm to the defendant. Seals objected to the
State leading its confidential informant, Kyzer, during direct examination. The trial court sustained the first
objection. After the State rephrased the question, Seals repeated his objection. However, the trial court
overruled Seals’ objection and allowed Kyzer to answer the question.
¶11.
Because the court reporter was unable to hear the State’s questions and the witnesses’ answers
while the videotape was being played, the trial court ordered the State to stop the tape periodically and
allow the witness to explain what occurred on the day in question. Considering the examination of Kyzer
in its entirety, the purpose and effect of the leading questions were to describe what was clearly being
shown on the videotape. Kyzer was the confidential informant on the tape and he possessed firsthand
knowledge of the events that transpired. The leading questions did not result in any injury to Seals’ defense
and the trial court did not abuse its discretion in allowing the State to ask the leading questions. This
assignment is without merit.
II.
DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S OBJECTION TO THE
INTRODUCTION OF THE VIDEOTAPE COPY OF THE ORIGINAL FILM OF THE
ALLEGED SALES OF COCAINE?
¶12.
Seals argues that the copy of the videotape was not properly authenticated. Seals also maintains
that the best evidence rule was violated because a copy of the tape was produced in lieu of the original.
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During the examination of Kyzer, the State offered into evidence a duplicate VHS copy of the drug
transactions. Seals objected to the admission of the VHS videotape on the ground that it had not been
properly authenticated. The following testimony transpired between the prosecutor and the witness:
Q
Have you reviewed a tape of this transaction – videotape of this transaction?
A
Yes, sir.
Q
And did it accurately and correctly depict or show the transaction that had took
place on that date, December the 5th?
A
Yes, sir. To every detail.
Q
And you have reviewed that tape?
A
Yes, sir.
MR. THAMES:
Your Honor, I would like to ask permission that the tape be
played of this transaction. And that Don Bartlett come forward
and assist me by showing this to the jury?
THE COURT:
Mr. Brooks and Mr. Collins, any objection at this point?
MR. BROOKS:
No objection to Mr. Bartlett, Your Honor. We would object to
the admission of this tape at this particular point, because there
has been no evidence or proper predicate laid to show whether
this is the very tape that was in the automobile at the time the
witness has testified to. He did testify he didn't have anything to
do with the installation or removal of the tape. And so, there
would be a question of whether this is the same tape that was in
the vehicle at the time he says that this alleged sale occurred.
THE COURT: It may be very simple to connect that up. Mr. Thames, do you
understand the objection now?
MR. THAMES:
Your Honor, basically, I had asked him the question has he
reviewed the tape that was in the machine. And he has indicated
and by his testimony that it has. And his is the tape that is before
us. And I would ask him if it is correctly and accurately depicting
or showing the sale that took place. And he says, yes, it does to
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the very detail. So, I would submit that it is leading up to it is
credible and that he is allowed to testify to that fact. And that it
should be allowed to be shown.
THE COURT:
MR. BROOKS:
¶13.
Rule 901 is the rule which is pertinent in this matter, which has to
do with authentication. And the Court has heard testimony which
is to the effect that the witness has so stated that the tape that is
sought to be introduced is the one that was gotten -- was placed
in his hands as far as a part of the totality of the circumstances
between the three officers and himself. He has adopted it. And
so, the Court feels a proper predicate has been laid and the
objection is overruled. Any further objections, Mr. Brooks?
No, Your Honor.
“Under this Court's standard of review, the admissibility of evidence rests within the discretion of
the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling. The same
standards used in determining the admissibility of photographs are applicable to the admission of
videotapes." Davis v. State, 767 So.2d 986, 996 (¶ 24) (Miss. 2000). The tape was admitted pursuant
to Rule 901(b)(1) of the Mississippi Rules of Evidence which provides that authentication can be
accomplished by testimony from someone familiar with and with knowledge of the contents of the document
or recording. M.R.E. 901. The State satisfied this rule when it offered the testimony of Kyzer. Kyzer
testified that the VHS copy accurately and correctly depicted the transaction as it occurred on the day in
question. Kyzer was familiar with the particulars of the drug transaction and testified sufficiently to the
accuracy of the recording. See Wells v. State, 604 So.2d 271, 277 (Miss. 1992). The Court finds that
the tape was properly authenticated and the trial judge did not abuse his discretion in admitting the tape into
evidence.
¶14.
Seals also maintains that the best evidence rule was violated because a copy of the tape was
produced in lieu of the original. Mississippi Rule of Evidence 1003 provides that a duplicate is admissible
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as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original. M.R.E 1003. Seals objected
to the admission of the VHS videotape in lieu of the original mini-tape. In overruling Seals’ objection the
court stated:
The Court has viewed both of the tapes [the original and the copy] in the entirety of what
they purport to show as far as Counts 1 and 2 are involved. The Court has heard witness
Bartlett’s explanation as far as the reason that he has converted the cassette tapes to the
one video. Particularly his reason about the equipment and particularly him saying that to
slow down the tape or to stop it at a particular critical juncture would make it not visible
and not clear. The Court deems that as a very logical and plausible reason. And not only
that it appears to be more as far as the jury not being confused and as far as the defendant
not wanting to be misidentified that [sic] is a good reason for the evidence to have
produced as it has been. So, the Court based on the rulings it has already made as far as
authentication and then now the matter of technical problems that may or may not be
involved, the Court is satisfied that there is no prejudice. That the evidence is coming in
clearly. And that the best evidence rule is also satisfied. So the objection is overruled.
¶15.
A copy of a videotape depicting an alleged drug transfer does not violate the best evidence rule,
if the undercover agent testifies that the videotape is an accurate depiction of events. Trull v. State, 811
So.2d 243, 247 (¶¶9 10) (Miss. Ct. App. 2000)
¶16.
The trial court viewed the original videotape and the duplicate VHS tape before admitting the
duplicate into evidence. The trial court found no undue prejudice would befall Seals by admitting the copy
of the VHS tape in lieu of the original. Questions regarding the admission of evidence is left to the sound
discretion of the trial judge. The State offered a logical reason for presenting a duplicate VHS copy of the
videotape. Seals’ argument is without merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF
CONVICTION OF TWO COUNTS OF THE SALE OF COCAINE AND SENTENCE OF
TWENTY-FIVE YEARS ON EACH COUNT AS A SECOND OFFENDER WITH FIVE YEARS
SUSPENDED ON EACH COUNT AND TWENTY YEARS TO SERVE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ON EACH COUNT, SENTENCES
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TO RUN CONCURRENTLY, AND FIVE YEARS OF POST-RELEASE SUPERVISION IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND GRIFFIS, JJ., CONCUR.
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