Corey Metcalf v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00930-COA
COREY METCALF
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
3/28/2003
HON. THOMAS J. GARDNER, III
MONROE COUNTY CIRCUIT COURT
J. DUDLEY WILLIAMS
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
JOHN RICHARD YOUNG
CRIMINAL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED.
AFFIRMED - 11/09/2004
BEFORE BRIDGES, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
On June 16, 1998, Corey Metcalf pled guilty to the burglary of a dwelling house and was
sentenced to a term of fifteen years. This sentence was suspended and petitioner was placed on
supervised probation for five years. Metcalf’s probation was contingent upon the requirement that
he live at liberty without violating any laws. On January 29, 1999, Metcalf’s probation was revoked
for the sale of crack cocaine to an undercover agent on October 15, 1998. Aggrieved by the decision
to revoke his probation, Metcalf filed a motion for post-conviction relief on November 30, 2001. It
is from the March 28, 2003 denial of his motion for post-conviction relief by the trial judge from
which Metcalf appeals raising the following issue:
I. WHETHER THE STATE SATISFIED ITS BURDEN OF PROOF IN IDENTIFYING
APPELLANT.
Finding no reversible error, we affirm.
STATEMENT OF FACTS
¶2.
On June 16, 1998, Metcalf pled guilty to burglary of the dwelling house of another and
received a fifteen year suspended sentence and five years of supervised probation. As per the terms
of his supervised probation, Metcalf was to pay $648 in fines and restitution as well as conduct
himself as a law abiding citizen. On January 29, 1999, Metcalf’s probation was revoked and he was
sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections.
¶3.
On October 15, 1998, Metcalf sold $40 worth of crack cocaine to an undercover agent with
the Mississippi Bureau of Narcotics. This transaction was videotaped but the video was not useful
for conviction, as the subject pulled a hood over his head just prior to the sale, hiding his face from
the camera. After purchasing the crack cocaine, the undercover officer submitted the drugs to the
case agent who then sent the drugs to the Mississippi Crime Laboratory for analysis. The report
from the Mississippi Crime Laboratory stated that .24 grams of cocaine were present in the sample.
4.
Once the drugs had been submitted to the case agent, the undercover officer went to the
Aberdeen Police Department and gave a description of the individual from whom she purchased the
drugs. After examining a photo array, the agent was able to make a positive identification of Metcalf
as the person from whom she made the purchase.
¶5.
On December 4, 1998, Metcalf was arrested and charged with the sale of cocaine. On January
29, 1999, the court found that Metcalf had violated the terms of his probation and revoked his
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probation, reinstating his previous sentence of incarceration for a period of fifteen years. The court
listed four reasons for the revocation of his probation. These reasons include failing to live at liberty
without violating any laws, failing to abstain from the use of marijuana, failing to pay supervision
fees as directed, and failing to pay court costs and restitution as directed.
¶6.
Metcalf filed his first motion for post-conviction relief on a date uncertain from the record.
The court denied this motion on October 31, 2000. On November 30, 2001, Metcalf filed his second
motion for post-conviction relief raising as issues the following:
I. His fifteen-year sentence is disproportionate to his crime.
II. His guilty plea “was not made knowingly, intelligently, voluntarily or with effective
assistance of counsel.”
III. His plea and sentence were infirm for each and every one of the listed grounds in Section
99-39-5, Miss. Code Ann. (1972), as amended.
IV. His probation was unlawfully revoked because his hearing was held before a different
judge from the one who had initially imposed sentence.
In an order dated March 28, 2003, Metcalf’s motion for post-conviction relief was denied stating that
his motion was procedurally barred as successive in violation of Mississippi Code Annotated § 9939-23(6) (Rev. 2000). Though his motion was procedurally barred, the trial court addressed his
motion, denying each of his claims. It is from this denial which he appeals.
LEGAL ANALYSIS
I. WHETHER THE STATE SATISFIED ITS BURDEN OF PROOF IN IDENTIFYING
APPELLANT.
STANDARD OF REVIEW
¶7.
“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.” Byrd v. State,
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834 So. 2d 730, 732-33 (¶8) (Miss. Ct. App. 2003) (citing Jackson v. State, 807 So. 2d 467, 469 (¶8)
(Miss. Ct. App. 2001)).
DISCUSSION
¶8.
Metcalf asserts for the first time on appeal that the State did not satisfy its burden of proof,
as the undercover agent did not specifically point him out at trial, forcing the trial court to rely on the
agent’s out-of-court identification. Metcalf is procedurally barred from raising this issue initially on
appeal. Pinkney v. State, 757 So. 2d 297, 299 (¶6) (Miss. 2000).
¶9.
In addressing Metcalf’s claim as though preserved for appeal, we find the issue to be without
merit for two reasons. First, during trial on the issue, Metcalf never made an objection to the
officer’s out-of-court identification. As this Court has previously held, “To preserve an issue for
consideration on appeal, a defendant must raise a timely objection.” Byrd, 834 So. 2d AT 733 (¶12)
(citing Longmire v. State, 749 So. 2d 366, 368 (¶5) (Miss. Ct. App. 1999)). In failing to raise a timely
objection, this issue is procedurally barred. Id.
¶10.
Secondly, upon review of the record, it is clear that the State has met its burden of proof. The
Mississippi Supreme Court has held that a conviction is not necessary in order to revoke an
individual’s probation. Smith v. State, 742 So. 2d 1146, 1148 (¶10) (Miss. 1999). The Mississippi
Supreme Court has further held that probation may be revoked upon a showing that the defendant
“more likely than not” violated the terms of probation. Wallace v. State, 607 So. 2d 1184, 1189-90
(Miss. 1992). In the case sub judice the undercover officer from the Mississippi Bureau of Narcotics
testified that she purchased crack cocaine from an individual whom she had seen several times
previous to the purchase. After purchasing the cocaine she turned the drugs over to the case agent
and proceeded to the Aberdeen Police Department. While at the Aberdeen Police Department, she
made a positive identification of Metcalf as the individual from whom she purchased the drugs. This
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identification took place within eleven minutes of the purchase. Furthermore, the record is clear that
throughout her testimony, the undercover officer repeatedly made reference to “Mr. Metcalf” as the
individual from whom she purchased the drugs. As Metcalf directed no questions towards the agent,
her testimony remained unimpeached and we find that the State met its burden of proving that
Metcalf “more likely than not” violated the terms of his parole. Therefore, we find this issue is
without merit.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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