Elliott Allen Young v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02026-COA
ELLIOTT ALLEN YOUNG A/K/A DUKE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
10/08/2007
HON. MICHAEL M. TAYLOR
WALTHALL COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DEE BATES
CRIMINAL - FELONY
CONVICTED OF TWO COUNTS OF SALE
OF COCAINE AND SENTENCED AS A
HABITUAL OFFENDER TO LIFE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION TO PAY A $5,000 FINE FOR
EACH COUNT, $300 RESTITUTION TO
THE MISSISSIPPI CRIME LAB, AND $300
RESTITUTION TO THE SOUTHWEST
MISSISSIPPI INTER-JURISDICTIONAL
NARCOTICS ENFORCEMENT UNIT
AFFIRMED - 03/10/2009
EN BANC.
CARLTON, J., FOR THE COURT:
¶1.
Elliot Allen Young was convicted by a Walthall County jury of two counts of
unlawful sale of cocaine to an undercover informant. The circuit court sentenced him as a
habitual offender to life in the custody of the Mississippi Department of Corrections without
eligibility for parole or probation along with a fine of $5,000 for each count, $300 in
restitution to the Mississippi Crime Laboratory, and $300 in restitution to the Southwest
Mississippi Inter-Jurisdictional Narcotics Enforcement Unit (SMINEU). He now appeals his
conviction and resulting sentence, alleging the following errors: (1) the circuit court erred in
finding that Young’s prior conviction for possession of cocaine was more probative than
prejudicial, and (2) the verdict was against the overwhelming weight of the evidence.
Finding no error, this Court affirms his conviction and sentence.
FACTS
¶2.
Agent Dan Hawn of the Walthall County Sheriff’s Department employed Dexter Cook
to go into a known drug area of Walthall County and attempt to buy drugs. On both May 16,
2006, and May 24, 2006, Agent Hawn and another officer met Cook at a pre-buy location
where Cook was searched and equipped with audio and video recording equipment. He was
given money with documented serial numbers with which to buy the drugs.
¶3.
On May 16, Agent Hawn dropped Cook off at Martin Luther King Road with
instructions to travel to the area of Magee Badon Road and attempt to purchase drugs. The
officers did not specify from whom Cook was supposed to buy the drugs. The officers could
hear him through his audio transmitter attempting to make drug buys from several different
people. Then, officers heard a drug transaction taking place with an unidentified person who
was later determined to be Young. When Cook returned, he turned over the drugs that were
placed in evidence bags and given to the Mississippi Crime Laboratory. The agents reviewed
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the audio and videotape evidence from the buy and identified Young as the individual who
sold the drugs to Cook. The videotape shows Cook and Young together in a trailer. Young
is heard telling Cook to let him go get his “dope and stuff.” Young is then shown coming
back into the part of the trailer where the transaction is made. The videotape does not show
the exact object that is exchanged for the money.
¶4.
On May 24, 2006, Cook was again used as a confidential informant by Agent Hawn.
Cook was informed to go and attempt to buy crack cocaine. He was given the same video
and audio equipment as well as more money with documented serial numbers with which to
buy the drugs. Cook again traveled to Magee Badon Road where he made contact with
Young. Young is heard saying, “I don’t think I’ve got that much.” Cook responds, “Well,
can you do fifty?” Young then leaves the view of the camera, returns, and the videotape
shows him holding something in his hand and saying something to the effect of “give me
forty." At that time, Cook returned to meet Agent Hawn. He returned all but forty dollars,
which had been issued to him, along with crack cocaine. The drugs were placed in an
evidence bag and transported to the crime lab.
¶5.
Young was arrested on May 27, 2006. Officers recovered two ten dollar bills from
Young that had previously been documented and given to Cook to buy drugs on May 16,
2006.
¶6.
Young was tried by a jury in Walthall County. Prior to his case-in-chief, Young
informed the trial judge that he was going to testify. Defense counsel indicated to the trial
judge that Young had been informed that he would be subject to cross-examination by the
State if he testified. At that time, the prosecution notified the trial judge that the State would
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seek to impeach Young with his prior convictions of robbery and unlawful possession of
cocaine.
¶7.
The trial judge held the robbery conviction to be inadmissible, but the judge allowed
the prior possession charge to come in for impeachment purposes. After going through a
Peterson analysis, the trial judge found that there was more probative value in admitting the
evidence than prejudicial effect with regard to the prior conviction of cocaine possession in
light of the posture of the case. The judge stated that the crime had impeachment value given
the posture of the current case and defense counsel’s remarks during his opening statement.
During his opening statement, defense counsel made the remark that “these charges are
preposterous, and it’s a set–up situation and [Young] certainly did not sell cocaine to the
confidential informant.” The defense’s theory during trial was that Young had never sold
cocaine to the informant, Cook instead, he had only sold him twenty Viagra pills. Young
also attempted to prove during trial that his arrest had been part of a conspiracy by the police
to force Young to reveal information about an unrelated murder case.
¶8.
After his jury trial, Young was convicted of two counts of unlawful sale of cocaine
to an undercover informant. He was sentenced as a habitual offender to life imprisonment
without the eligibility for parole or probation on both counts.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE
PROBATIVE VALUE OF THE PRIOR CONVICTION FOR POSSESSION
OF COCAINE OUTWEIGHED THE PREJUDICIAL EFFECT.
¶9.
Mississippi Rule of Evidence 609(a)(1)(B) states that evidence that a party has been
convicted of a crime shall be admitted if the court determines that the probative value of
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admitting the evidence outweighs its prejudicial effect to the party. The standard of review
for admission or exclusion of evidence is the abuse of discretion standard. Herring v.
Poirrier, 797 So. 2d 797, 804 (¶18) (Miss. 2000). “Where such error is found, this Court
‘will not reverse unless the error adversely affects a substantial right of a party.’” Tate v.
State, 912 So 2d 919, 924 (¶9) (Miss. 2005) (quoting Ladnier v. State, 878 So. 2d 926, 933
(¶27) (Miss. 2004)).
¶10.
Young contends that it was an abuse of discretion to admit the prior conviction of
possession of cocaine because the probative value of the prior conviction was outweighed
by its prejudicial effect. Young claims that the State’s purpose in bringing up the prior
charge was to make the jury infer present guilt from his past conviction for a similar offense.
In this case, the trial judge did not abuse his discretion in admitting into evidence Young’s
prior conviction for possession of cocaine within 1,500 feet of the school, which he
concluded was probative given the posture of the case after he conducted a Peterson analysis
and a Rule 403 balancing test on the record. Peterson v. State, 518 So. 2d 632, 638 (Miss.
1987).
¶11.
While the defense did not use the word “entrapment” and did not assert the affirmative
defense of entrapment,1 the record indisputably reflects that both Young in his testimony and
his counsel in opening statement claimed a “set-up” with “ridiculous charges.” The trial
judge evaluated the relevance of this claim to the impeachment of Young in light of the
posture of this case. Clearly, the intent of the defendant was put into issue by the
defendant’s own testimony as well as by the defense’s theory of the case. A prologue of the
1
The defense did not request any entrapment jury instruction.
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theory was provided by his counsel’s opening statement.
¶12.
Therefore, the prior conviction was admissible in accordance with Mississippi Rule
of Evidence 404(b) with respect to intent as well as Mississippi Rule of Evidence 609 to
impeach his claim of a set-up and law enforcement conspiracy.
¶13.
With respect to whether the trial judge abused his discretion and displayed due
consideration, the trial judge evaluated the two prior convictions of Young–a robbery
conviction and the possession conviction noted above, – utilizing the Peterson analysis. The
trial judge concluded that only the conviction relating to the drug possession was probative
given the posture of the facts of this case. Then, the jury, after listening to the evidence and
weighing the evidence, found Young guilty of selling cocaine to Cook, a confidential
informant, on May 16, 2006, and selling cocaine again to the same confidential informant
eight days later on May 24, 2006.
¶14.
The testimony the jury digested included Young’s own testimony. Young testified
in his defense that he knew that Cook was with the police, meaning that he knew that Cook
was a confidential informant. Young testified that since he knew Cook was with the police,
he would only sell Viagra to him at $2 a pill.
¶15.
Young further testified that he was targeted because he had a prior felony and because
one of his friends had been killed. He explained that law enforcement had previously seen
him with his friend. He alleged that the police targeted him because they wanted him to
reveal who had killed his friend.
He continued to explain that the law enforcement
conspiracy was to pin a life sentence on him since he had been convicted of a felony before
and to pressure him for his information about his murdered friend. However, he disclaimed
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any knowledge as to whom had killed his friend.
¶16.
Young’s prior conviction was a part of his own defense theory as to why law
enforcement targeted him. Young also admitted to selling “a substance” to the confidential
informant Cook on these two occasions charged in the indictment. However, he testified that
he sold Viagra to Cook, even though he is heard on the audiotape of one of the two sales
saying “let me get my dope, I’ll be back.” Young accused the confidential informant and the
undercover agents of being liars and accused them of tampering with the evidence. He
claimed that the confidential informant bought the cocaine from someone else and switched
the cocaine for the Viagra. He also asserted that the drugs tested by the lab were powder
cocaine and not the rock cocaine that law enforcement claimed that he had sold. He also
claimed that his image on the videotape introduced at trial had been altered, but he admitted
that the image on the videotape was him. The jury considered the following evidence: the
confidential informant’s testimony, the agent’s testimony, the pre-buy preparation and
searches of the confidential informant, the chain of custody for exhibits of the evidence and
the crime lab analysis, the audio and videotapes of the transactions, and the post-buy
searches. In addition to being relevant to Young’s defense theory as to why law enforcement
targeted him, the jury was also presented evidence of Young’s intent as to whether he
intended to sell cocaine or Viagra.
¶17.
Young, through his own testimony, put his intent into issue at trial. Carter v. State,
953 So. 2d 224, 229 (¶11) (Miss. 2007); Jones v. State, 904 So. 2d 149, 153 (¶10) (Miss.
2005) (prior convictions admissible to show intent).
¶18.
Young’s defense theory was in the vein of entrapment, while not a classic case of
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entrapment defense. As previously explained, the record reflects that Young definitely
claimed there had been a “set-up” and evidence tampering. Young admitted to the two sales,
but he denied any intent to sell cocaine. He also admitted on direct examination to a prior
criminal relationship with the confidential informant. He testified that he had assisted the
confidential informant on previous occasions in knowingly selling stolen goods – lumber
saws.
He also claimed to have previously sold the confidential informant Viagra on
numerous occasions. However, Young testified that he did not need Viagra and did not
personally have a prescription for Viagra. He admitted that he was not a pharmacist. He
explained that he bought Viagra from a guy in his neighborhood, and he in turn sold the
Viagra to people with problems. Young further asserted that the confidential informant had
a “problem” because he smoked too much crack. Young denied selling cocaine; rather he
claimed that the confidential informant had tampered with the evidence and bought the
cocaine from someone else and switched it with the Viagra.
¶19.
This case is similar to Tate v. State, 912 So. 2d 919 (Miss. 2005). In that case, agents
with the Mississippi Drug Task Force arranged for a confidential informant to make a
purchase of illegal drugs from Tate. The two met in a parking lot of a tobacco store where
Tate gave a quantity of marijuana to the confidential informant. The confidential informant
gave a code word to the narcotics agents over a hidden wire, and numerous agents swarmed
to the scene. The agents discovered three more packages of marijuana in Tate’s possession
– one on his person, one in the front seat of his vehicle, and one hidden in a secret
compartment of his vehicle. Tate was arrested on charges of possession with intent to deliver
and delivery of more than an ounce but less than a kilogram of marijuana. The State offered
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Tate’s prior convictions for sale under Rule 404(b) to show intent and predisposition contrary
to Tate’s claim of entrapment.
¶20.
Tate, like Young in the case before us, claimed that the confidential informant had
planted the evidence. Tate claimed that the only marijuana belonging to him was that
marijuana found on his person, and the other marijuana found in his vehicle did not belong
to him. Tate asserted that the confidential informant planted the other two packages of
marijuana at his home without his knowledge. Tate also claimed that the confidential
informant told him that he was leaving drugs in the shed at his home. Tate’s defense at trial
was that when he met the confidential informant on the day of the arrest, he was not selling
any marijuana; he was only trying to return the marijuana to the confidential informant. The
Tate court explained that a classic case of entrapment is where the law enforcement is both
the supplier and the buyer of the contraband that is the subject of the defendant’s arrest. Id.
at 924-25 (¶10) (citing Moore v. State, 534 So. 2d 557, 558 (Miss. 1988)). Tate alleged that
the confidential informant was the supplier and the buyer of the marijuana. In the case at bar,
Young claims that Cook, the confidential informant, was the buyer and supplier of the
cocaine in that he alleged Cook switched the Viagra for the cocaine.
¶21.
Tate, 912 So. 2d at 925 (¶11) provides:
Entrapment has been defined as “the act of inducing or leading a person to
commit a crime not originally contemplated by him, for the purpose of
trapping him for the offense.” Hopson v. State, 625 So. 2d 395, 399 (Miss.
1993) (emphasis added) (citing Phillips v. State, 493 So. 2d 350, 354 (Miss.
1986); McLemore v. State, 241 Miss. 664, 675, 125 So. 2d 86, 91 (1960)).
The defense of entrapment is affirmative and must be proved by the defendant.
If the defendant already possessed the criminal intent, and the request or
inducement merely gave the defendant the opportunity to commit what he or
she was already predisposed to do, entrapment is not a defense. Id. (citing
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Bush v. State, 585 So. 2d 1262, 1264 (Miss. 1991)). Thus, predisposition to
commit the crime becomes an issue when a defendant raises an entrapment
defense.
¶22.
This Court has held, as explained in Tate, that a defendant’s prior drug activity is
admissible on the issue of predisposition. See Hopson, 625 So. 2d at 402. Similarly in this
case, since Young claimed to have been setup and that the confidential informant switched
the drugs, Young’s intent was placed in issue. Young’s prior conviction for possession was
admissible to show intent and to impeach his claim of a setup, and it constituted an important
thread of his defense strategy as to why he was targeted.
¶23.
The trial judge in this case went further than just evaluating prejudice under
Mississippi Rule of Evidence 403. The trial judge conducted a Peterson analysis and found
the following:
The Court finds that the Peterson test is satisfied by the possession conviction
March 20 of 2000, and that the Court finds that the probative value of
admitting the evidence outweighs any prejudicial effect. The crime has
impeachment value, given the posture of the case, and given the remarks of
counsel for Defense in opening statement. It was within the last I guess seven
years, around seven years ago, so the timeliness of it weighs in favor of the
admissibility. There’s a similarity between that and the act charged here
which, as far as prejudicial effect, weighs in the Defendant’s favor–the third
factor in Peterson, but the importance of the Defendant’s testimony and the
centrality of the credibility issue I think very clearly tipped the scales in favor
of admissibility, and it has great–it has probative value, and the prejudicial
effort would be minimal, if any. Certainly under Rule 403[it] would not be
unduly or unfairly prejudicial.
¶24.
If the defendant wanted a limiting instruction, he could have requested that such be
given. In this case, the defendant not only failed to request a limiting instruction, he
evidentially objected to the State’s proposed jury instruction S-8 regarding prior drug
activity. Hence, the court instructed the State to withdraw that instruction. Young cannot
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now claim a benefit from a lack of an instruction that he failed to request and to which he
objected.
¶25.
Based on the foregoing reasons, the trial judge did not abuse his discretion. He
conducted a Rule 403 balancing test as well as a Peterson analysis based on the facts and
posture of the case before the trial court. At the time of the motion hearing wherein the trial
judge conducted the Peterson and Rule 403 analysis, the defense had already painted a
picture in its brief, but pointed, opening remarks of a set-up defense based on ridiculous
charges. Young put his intent into issue, and the trial judge did not abuse his discretion in
admitting the prior possession charge to impeach Young with respect to his claimed set-up
and to show intent.
II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.
¶26.
Young also contends that the jury’s guilty verdict was against the overwhelming
weight of the evidence.
This Court will disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice. Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citing
Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)).
¶27.
Young argues that it was just his word against that of Cook. However, as previously
recounted, there was videotape evidence which strongly supported that Young sold drugs to
the informant Cook. There also was additional evidence including the recovered cocaine,
testimony of supervising law enforcement agents, and Young’s own testimony. It is the
responsibility of the jury to resolve the credibility of the witnesses. Mamon v. State, 724 So.
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2d 878, 881 (¶13) (Miss. 1998).
¶28.
There was more than sufficient evidence to support the jury’s verdict. All the
elements of sale of cocaine were established by credible evidence.
CONCLUSION
¶29.
We affirm the judgment of the Circuit Court of Walthall County.
¶30. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF
CONVICTION OF TWO COUNTS OF SALE OF COCAINE AND SENTENCE AS
A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION AND TO PAY A $5,000 FINE FOR EACH COUNT, $300
RESTITUTION TO THE MISSISSIPPI CRIME LAB, AND $300 RESTITUTION TO
THE SOUTHWEST MISSISSIPPI INTER-JURISDICTIONAL NARCOTICS
ENFORCEMENT UNIT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WALTHALL COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.
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