Michael Louis Straight v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-01207-COA
MICHAEL LOUIS STRAIGHT A/K/A MICHAEL APPELLANT
STRAIGHT A/K/A MICHAEL LEWIS
STRAIGHT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/15/2015
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN ELIZABETH PRIDGEN
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF TRANSFER OF LESS
THAN TWO GRAMS OF COCAINE AND
SENTENCED AS A HABITUAL OFFENDER
AND SUBSEQUENT DRUG OFFENDER TO
TWELVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION
DISPOSITION: AFFIRMED - 11/29/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Michael Louis Straight was convicted in Harrison County Circuit Court of transfer of
less than two grams of cocaine and sentenced as a habitual offender and subsequent drug
offender to twelve years in the custody of the Mississippi Department of Corrections
(MDOC). At trial, a witness testified that Straight was the person who gave her the cocaine
and that she recognized him because she had gotten cocaine from him in the past. Straight
moved for a mistrial on the basis of this testimony, which was denied because, though the
witness improperly referred to Straight’s prior bad acts, the testimony was not intentional and
not solicited by the prosecution. Later, at the prosecution’s request and over Straight’s
objection, the trial court gave a limiting instruction to the jury concerning any reference to
prior bad acts. Straight appeals to this Court asserting the trial court erred in denying his
motion for a mistrial and in giving the limiting instruction. Finding no reversible error, we
affirm.
FACTS AND PROCEEDINGS BELOW
¶2. On September 26, 2013, Clinton Fore, a narcotics investigator with the Biloxi Police
Department, was working undercover as part of an ongoing drug-enforcement operation.
Fore was equipped with an audio-recording device, and his activities were broadcast to other
investigators in the area, including Lieutenant Aldon Helmert, Fore’s supervisor. Fore was
accompanied by Belinda Olsen, a confidential informant. Fore and Olsen encountered an
African American male, wearing a desert-camouflage jacket, khaki cargo pants, and a ball
cap, who was later identified as Straight. Fore and Olsen indicated to Straight that they were
interested in purchasing sixty dollars worth of crack cocaine. Straight told Fore and Olsen
to wait while he went and got the cocaine. After waiting a few minutes, Fore followed
Straight in his car and observed Straight in the front yard of a residence. Straight approached
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the driver’s side of Fore’s vehicle and handed him the cocaine. Fore gave Straight sixty
dollars in premarked twenty-dollar bills. The entire transaction was recorded via Fore’s audio
device. Shortly after the purchase, Helmert made contact with Straight and identified him.
Fore later identified Straight from a photograph.
¶3. On January 12, 2015, Straight was indicted on one count of transfer or sale of less
than two grams of cocaine as a habitual offender and subsequent drug offender.1 On May 4,
2015, Straight moved to suppress any evidence of his prior bad acts, which the trial court
granted prior to the commencement of trial.
¶4. At trial, Fore testified to the events of the transaction that occurred on September 26,
2013, and confirmed that the voice on the audio recording was that of Straight. Fore also
identified Straight in the courtroom. Helmert also testified and stated that he was familiar
with Straight because of prior encounters and that, immediately following the transaction,
he identified Straight based on the physical description given by Fore and Straight’s
proximity to the location of the transaction. Helmert also identified Straight in the courtroom
and identified the voice on Fore’s recording as Straight’s.
¶5. Olsen also testified at trial. She identified Straight as the person who sold Fore the
cocaine and also testified that she was familiar with him prior to the transaction. She also
identified the voice on Fore’s recording as Straight’s. On cross-examination, Olsen was
asked about her identification, and possible misidentification, of Straight. On redirect
examination, Olsen was asked again if Straight was the person from whom she and Fore
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Straight was not arrested on the day of the transaction due to the ongoing and
prolonged nature of the undercover investigation.
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bought the cocaine on September 26, 2013. She responded, “It is. And I’ve done it when I
was in my using days, also, I bought from him.” Straight contemporaneously objected to the
remark and, following the State’s case-in-chief, moved for a mistrial asserting that Olsen’s
remark was contrary to the trial court’s ruling prohibiting the State from eliciting testimony
regarding Straight’s prior bad acts.
¶6. The trial court denied Straight’s motion for a mistrial. It opined that the remark did
not warrant a mistrial because the remark was “somewhat of a spontaneous response simply
to confirm further her identification of the defendant . . .” and the question was not phrased
to elicit her particular response. Straight presented no evidence in his defense.
¶7. The State requested a limiting instruction be given to the jury to cure Olsen’s remark
that she had previously purchased cocaine from Straight. The instruction stated:
The court instructs the jury that any evidence of prior or subsequent bad acts
or crimes of the defendant may be considered solely for the purpose of
determining the defendant’s intent, knowledge, or identity in this case. If the
defendant has committed bad acts or crimes, they are not evidence
corroborating or suggesting that the defendant is guilty of the crimes charged
in this case.
Straight objected to giving a limiting instruction, stating that he did not want to draw
attention to Olsen’s remark. The State asserted, and the trial judge agreed, that the trial court
was required to give a limiting instruction because of Olsen’s reference to prior bad acts
regardless of whether the defendant desired such an instruction or not. The trial judge
overruled Straight’s objection on this basis.
¶8. The jury found Straight guilty of transfer of less than two grams of cocaine. Straight
was sentenced as a habitual offender and subsequent drug offender to twelve years in the
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custody of the MDOC. Straight moved for a judgment notwithstanding the verdict (JNOV)
or, in the alternative, a new trial, which was denied. Straight now appeals to this Court.
DISCUSSION
¶9. Straight argues that the trial court erred in refusing to grant his motion for a mistrial
and in giving the jury a limiting instruction over his objection.
I. Denial of Motion for Mistrial
¶10. The decision to grant or not grant a mistrial lies within the sound discretion of the trial
court and is reviewed for abuse of discretion. Clark v. State, 40 So. 3d 531, 538 (¶14) (Miss.
2010). If error “substantially and irreparably” prejudices the defendant’s case, then the trial
court must grant a mistrial. Id. The trial judge has considerable discretion in determining if
a mistrial is warranted. Harrell v. State, 947 So. 2d 309, 316 (¶23) (Miss. 2007). Evidence
of prior bad acts is admissible under Mississippi Rule of Evidence 404(b)2 if it passes the
Mississippi Rule of Evidence 4033 balancing test and is accompanied by a limiting
instruction. Smith v. State, 839 So. 2d 489, 494-95 (¶7) (Miss. 2003).
¶11. In Yarbrough v. State, a case similar to the one now before us, the State asked a
witness the purpose of a meeting, and the witness’s answer identified the defendant through
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Rule 404(b) states that “evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character”; however, this evidence “may be admissible for another
purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”
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Rule 403 states that “the court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
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prior bad acts. Yarbrough v. State, 911 So. 2d 951, 956-57 (¶¶14-17) (Miss. 2005). The court
held that the testimony did not rise to the level of warranting a mistrial because the State did
not “specifically elicit” the improper testimony, and the testimony was simply “more
expansive than the question asked.” Id. at 957 (¶17). Further, the trial judge in Yarbrough
instructed the jury to ignore the reference to any prior bad acts. Id. at 956 (¶14).
¶12. Here, the trial judge weighed Olsen’s statement that she had previously purchased
drugs from Straight and acknowledged that the remark “was arguably within the gambit [sic]
of potentially an objectionable kind of testimony from her regarding a prior bad act.” He
ultimately determined that neither the question nor the answer was meant to bring about the
prior-bad-acts reference, and that the remark was directed toward her identification of
Straight. Ultimately, the trial judge also gave a limiting instruction concerning the remark.
We liken the situation before us to that in Yarbrough.
¶13. Here, Olsen testified that she knew and recognized Straight through previous
encounters. After Olsen was questioned by Straight about her identification, or
misidentification, of him, the State, on redirect, asked again if Straight was the person Olsen
and Fore bought cocaine from on September 26, 2013. Olsen again identified Straight as the
seller, and further confirmed her identification of him based on her prior purchases. Here,
like in Yarbrough, the State did not elicit the improper statement, the testimony was more
expansive than the question asked, and the trial judge instructed the jury to disregard the
reference to prior bad acts. Thus, we find this issue is without merit.
II. Issuing of Limiting Instruction
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¶14. Jury instructions generally are within the discretion of the trial court. Newell v. State,
49 So. 3d 66, 73 (¶19) (Miss. 2010). The trial court is under no duty to issue a limiting
instruction sua sponte for testimony of prior bad acts. Brown v. State, 890 So. 2d 901, 913
(¶36) (Miss. 2004), cert. denied, 544 U.S. 981 (2005). “The decision of whether to request
the instruction [is] governed by [trial] counsel’s tactical evaluation of the impact of the
extrinsic event evidence on the jury.” Parham Williams, Williams on Mississippi Evidence
§ 4.52, n.400 (2016) (citing M.R.E. 105 cmt. (citing Freed v. Killman, 6 So. 2d 909 (Miss.
1942))). Such an instruction may have the undesirable effect of actually drawing the fact-
finder’s attention to the prior-bad-acts evidence, and needlessly prejudicing the defendant.
Id. § 4.52.
¶15. Here, Olsen had been questioned repeatedly by the prosecution on direct examination
and the defense on cross-examination. On Olsen’s third round of questioning on redirect
about the certainty of her identification of Straight, she again identified Straight as the
individual who sold her drugs. She then, without solicitation, confirmed her identification
of Straight by saying that she was certain it was him because she knew him from her prior
dealings with him. The prosecution requested a limiting instruction and was under the
mistaken impression, along with the trial judge, that the instruction was required. As a result,
the trial judge gave the instruction over the defense’s objection. The instruction given did not
draw attention to the unsolicited testimony by Olsen of Straight’s prior bad acts but was
generic in nature. Though it was not error here to allow the instruction, we note that the
better practice is to defer to the defense’s wishes concerning giving a limiting instruction in
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such unsolicited or “blurt-out” situations. See Brown, 890 So. 2d at 913 (¶36).
¶16. Even if allowing such an instruction was error, it was harmless. The unsolicited
reference was for identification purposes, and not as proof of any conformity with prior
behavior. Ample other evidence supported Straight’s conviction. Fore testified that Straight
sold him the cocaine, identified the voice on the recording as that of Straight, and identified
Straight in the courtroom. Helmert testified that the voice on the recording was Straight’s,
and that Straight was the individual matching Fore’s description in the area immediately after
Fore and Olsen purchased the cocaine. Helmert identified Straight in the courtroom. Helmert
further stated that he knew and recognized Straight from prior encounters. Further, without
Olsen’s unsolicited comment at issue, Olsen positively identified Straight in the courtroom
and confirmed that Straight was the individual who sold her the cocaine on the date in
question. We find this issue is without merit.
CONCLUSION
¶17. We affirm the Harrison County Circuit Court’s judgment of Straight’s conviction for
the transfer of less than two grams of cocaine.
¶18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, OF CONVICTION OF TRANSFER OF LESS
THAN TWO GRAMS OF COCAINE, AND SENTENCE AS A HABITUAL
OFFENDER AND SUBSEQUENT DRUG OFFENDER OF TWELVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT
ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
JAMES AND WILSON, JJ., CONCUR.
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