                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-KA-02084-SCT

DONALD HALES

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          09/24/2004
TRIAL JUDGE:                               HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    DANIEL KYLE ROBERTSON
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         ANTHONY BUCKLEY
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED-05/18/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Donald Hales was indicted by the grand jury of the Second Judicial District of Jones

County for the possession of a controlled dangerous substance, in violation of Miss. Code

Ann. Section 41-29-139 (Rev. 2005). Hales was tried before a jury in the Circuit Court and

found guilty of the illegal possession of cocaine. The circuit court sentenced Hales to a

sixteen-year sentence with four years suspended. Hales was then remanded to the custody

of the Mississippi Department of Corrections to serve a total of twelve years. It is from this

conviction and sentence that Hales perfected the present appeal.
¶2.    After due consideration, we find no error by the trial court in this case. Accordingly,

the judgment of the trial court is affirmed.

                                          FACTS

¶3.    On or about February 11, 2004, Laurel narcotics officers secured a search warrant and

arrived at an apartment occupied by Donald Hales. The officers knocked on the door and

announced their presence, but heard what they perceived to be running water emanating from

the bathroom area of the apartment. The officers then decided to breach the entryway of the

residence in order to prevent the possible destruction of evidence. The officers discovered

Hales standing in the bathroom holding some sort of towel or rag in his hand. Also, officers

found Hales’ female companion taking a shower. Both individuals were taken into custody,

and the officers commenced a search of the apartment.

¶4.    During the search, officers noticed a non-working stove in one of the cluttered rooms

in the apartment. Officers lifted the top panel of the stove and saw a bag containing a rock

like substance, which appeared to be crack cocaine. In addition, two razor blades covered

in a white powdery substance were discovered on a table in the apartment. These items,

which contained the suspected illegal substance, were collected and submitted to the crime

lab for chemical analysis. After testing, the crime lab determined the substance covering the

razor blades was a cocaine residue and the bag contained 5.71 grams of cocaine.

¶5.    On March 24, 2004, Hales was indicted for possession of 5.71 grams of cocaine, in

violation of Section 41-29-139. Hales was subsequently tried by a jury before the circuit



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court. At trial the State presented evidence, including photographs and officer testimony, in

an attempt to demonstrate that Hales was knowingly in possession of a controlled dangerous

substance. Hales failed to produce evidence or testimony to contradict the State’s evidence.

Instead, Hales testified on his own behalf during the hearing and admitted residing in the

apartment that was searched by the narcotics officers. Hales denied having any knowledge

of the cocaine that was recovered in his apartment by the officers. Alternatively, Hales

suggested his girlfriend’s son and a friend stashed the cocaine in his apartment without his

knowledge.

¶6.    After closing arguments, the circuit court submitted the case to the jury for

deliberations. Shortly thereafter the jury returned a guilty verdict. Hales was sentenced and

subsequently filed a motion for a new trial, or in the alternative, a motion for judgment

notwithstanding the verdict. The circuit court overruled Hales’ motions. Hales now appeals

to this Court.

                                       ANALYSIS

       I. MOTION FOR MISTRIAL

¶7.    Prior to commencement of the trial, Hales’ counsel motioned the trial court to exclude

any items other than the cocaine that was recovered in Hales’ apartment. The following

relevant communications took place pretrial:

       DEFENSE COUNSEL: One brief thing, there’s - - I see that there is several
       things that Mr. Van Syckel has in his possession that was [sic] recovered
       pursuant to the search warrant. My client is charged with possession of 5.71
       grams of cocaine. I would move the court for an order prohibiting the State

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       from introducing anything else that was a fruit of the search warrant other than
       the cocaine which he’s on charge for here today.

       PROSECUTION: Well, Your Honor, there’s the cocaine.

       TRIAL COURT: If it’s not pursuant to the search warrant, what was identified
       to be searched for, we all know that can’t be brought in. If it’s something that
       they went there to find, if there’s other contraband - -

       PROSECUTION: It will all be related to cocaine, Your Honor, but so the
       Court will know, they found the cocaine and then they found two razor blades,
       which are used to cut cocaine, that the crime lab will identify as razor blades
       with cocaine residue. That’s the only other thing that was found.

       DEFENSE COUNSEL: There’s also marijuana that was found.

       PROSECUTION: We’re not getting into that.

       TRIAL COURT: Okay. Well, let’s go then.

¶8.    This pretrial discussion left Hales, not unreasonably, with the impression the district

attorney would not divulge any evidence of the presence of marijuana to the jury. However,

during the direct examination one of the narcotics officers the district attorney admitted a

color photograph into evidence which depicts a razor blade, a cell phone, a bottle of beer, a

bag of cocaine, and what appeared to be a small plastic bag of marijuana. Hales’ attorney

insists he was unaware the color photograph contained marijuana because the prosecution

submitted a black and white copy of the photograph during pretrial discovery. Further,

defense counsel maintains the poor quality of the black and white copy rendered an

indecipherable image of the bag of marijuana at issue. Moreover, Hales’ defense counsel

maintains the only time he saw the color photograph was prior to its admission into evidence.



                                              4
Hales’ counsel did receive a disc, which would have revealed the color photo at issue had

counsel had it printed. Hales’ counsel did not print the color photo.

¶9.    Hales contends this color photograph clearly violated the pretrial order because of the

marijuana it portrays. Hales also claims the only purpose for offering the color photograph

was to inflame and prejudice the jury. We note the photograph at issue is clearly suspect in

that it contained the cocaine and other items, when the record clearly reflects only the cocaine

was found in the stove. It appears the photo at the center of controversy here was clearly one

taken of all the seized items together and did not adequately demonstrate where the seized

items were physically located in Hales’ apartment when first observed by the officers. The

trial court was concerned about the color photograph and made the following remarks:

       TRIAL COURT: Now, on this photograph here, I know it’s in evidence and
       it’s been presented in evidence. The only thing that disturbs me about it is the
       fact that it’s obvious what it is. And to put a photograph into evidence and not
       be a part of the crime that’s involved here is kind of disturbing to the Court
       because it’s - - I don’t know.

       PROSECUTION: As I said, Your Honor - -

       TRIAL COURT: It’s not a matter of what you said. It’s a matter of what you
       did. You presented it to the jury, a picture of a substance there that anybody -
       - I mean, I don’t know what these peoples’ common experiences are. I would
       suspect that there is somebody on this injury [sic] that, taking all the statistics
       that we deal with from time to time and peoples’ knowledge about what
       cocaine looks like, it’s obvious that there would be somebody on the jury that
       while they’re deliberating in the jury room if this picture is presented that it
       would be obvious that it would be - - that’s what it would be. So I don’t know
       why y’all want to put something like that in.

       PROSECUTION: Well, I’m not even looking for marijuana. All my witnesses
       have - -

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       TRIAL COURT: It’s not a matter of what you’re looking for. It’s a matter of
       something that has been presented to the jury showing that you’ve got another
       substance here. You’ve got beer. You’ve got all that stuff here.

       PROSECUTION: Beer is not illegal.

       TRIAL COURT: And I don’t know whether it’s put in there to inflame the
       minds of the jury. You got a knife and all that stuff up there in this photograph.
       Was that all put there as a composite to present to the jury to inflame the minds
       of the jury? I don’t know.

       ....

       TRIAL COURT: I’m just making a record on how I feel about this kind of
       tactic. And that’s all I can say.

       ....

       TRIAL COURT: I’m not going to do anything. I’m going to let it go in just
       like it is because it’s already gone to the jury. And then I’m going to let you
       go to the Supreme - - let them go to the Supreme Court, and let them do what
       they need to do about it. I’m just telling you that it’s my point I don’t
       understand why you do these things. Period.

       PROSECUTION: Well, I don’t know what these things is, Your Honor.

¶10.   When the trial court allowed the prosecution an opportunity to explain why such a

photograph was admitted into evidence, the prosecution offered that it was merely an attempt

to admit a razor blade into evidence. In response, Hales maintains the color photograph at

issue was not necessary merely for the admission of a razor blade.

¶11.   While we acknowledge the concerns of the trial judge regarding the photograph, this

issue is barred from consideration because defense counsel failed to contemporaneously and

timely object to the admission of the photograph. The prosecution presented the color



                                               6
photograph to defense counsel before admitting it into evidence without an objection. The

photo was admitted without objection, and only after the prosecution completed his direct

examination of the narcotics officer did the defense finally bring the alleged prejudicial

nature of the photograph to the trial court’s attention.

¶12.   This Court has consistently held “that the failure to make a contemporaneous

objection at trial constitutes a waiver of any error subsequently assigned.” Moawad v. State,

531 So. 2d 632, 634 (Miss. 1998)(citing Irving v. State, 498 So. 2d 305 (Miss. 1986); Gates

v. State, 484 So. 2d 1002 (Miss. 1986)). See also Wainright v. Sykes, 433 U.S. 72, 97 S. Ct

2497, 53 L. Ed. 2d 594 (1997). Accord Walker v. State, 473 So. 2d 435 (Miss. 1985); Ward

v. State, 461 So. 2d 724 (Miss. 1984); Tubbs v. State, 402 So. 2d 830 (Miss. 1981). In this

case, defense counsel objected to the photograph outside the timely and contemporaneous

realm required by this Court. Therefore, this issue is not properly before this Court on direct

appeal, and we are procedurally barred from considering it.

¶13.   Hales submits admission of the photograph constitutes reversible error by the trial

court, and thus his motion for a mistrial should have been granted. However, after a

thorough review of the record, we find neither the word “mistrial” nor Hales’ alleged motion

for a mistrial. This Court has stated on numerous occasions “that an appellant is responsible

for bringing to our attention and presenting to this Court a record of trial proceedings

sufficient to undergird his assignments of error.” Winters v. State, 473 So.2d 452, 457

(Miss. 1985). See, e.g., Yates v. State, 342 So.2d 312, 316 (Miss. 1977); Shelton v. Kindred,



                                              7
279 So. 2d 642, 644 (Miss. 1973). Despite the prosecution’s actions in this case, which

border on prejudicing the defendant, this Court cannot consider reversing the ruling of a trial

court when the alleged ruling is not in the record. Therefore, the trial court did not

erroneously overrule Hales’ motion for a mistrial, because there is no evidence in the record

that Hales’ ever made such a motion.         Thus, this Court is procedurally barred from

considering such a claim of error.

¶14.   However, this Court now calls attention to the trial court’s concerns regarding what

the trial judge referred to as the prosecutor’s “tactics” in this case. The trial judge only

allowed evidence of the cocaine, and the State agreed not to mention any marijuana. While

indeed, the prosecutor did not mention marijuana, the prosecutor’s conduct certainly raises

concerns. The color photograph at issue clearly shows a substance that a juror might

conclude is marijuana. In the interest of justice, this Court frowns upon any conduct

regarding evidence and prior court rulings which might appear suspect. To help avoid this

type of conduct this Court provided a simple prosecutorial roadmap over a century ago:

       The fair way is the safe way, and the safe way is the best way in every criminal
       prosecution. The history of criminal jurisprudence and practice demonstrates,
       generally, that if everyone prosecuted for crime were fairly and fully conceded
       all to which he is entitled, and if all doubtful advantages to the state were
       declined, there would be secured as many convictions of the guilty, and such
       convictions would be succeeded by few or no reversals.

Flowers v. State, 842 So. 2d 531, 564 (Miss. 2003) (citing Johnson v. State, 476 So. 2d

1195, 1215 (Miss. 1985); Hill v. State, 72 Miss. 527, 534, 17 So. 375, 377 (1895)). In

accordance with this guideline we pose the following question: was the color photograph the

                                              8
prosecutor surreptitiously slipped into evidence the lynchpin of the state’s case? After a

diligent review of the record we are certain the answer is no. Moreover, the prosecutor’s

actions unnecessarily jeopardized what was otherwise a solid evidentiary case. Therefore,

for future reference we take this opportunity to point out that prosecutors can avoid such a

quandary by taking the fair and safe route regarding inadmissible evidence during trial.

¶15.   In this case, the prosecutor’s actions were not well received by the trial court, nor are

they by this Court. However, due to defense counsel’s failure to make a contemporaneous

objection, the aforementioned procedural bar prevents the Court from considering this issue

on direct appeal. Thus, this issue is without merit.

       II. RIGHT TO A MEANINGFUL APPEAL

¶16.   Hales argues he has been denied the right to a meaningful appeal because of

substantial omissions in the record. Hales states that the court reporter’s failure to transcribe

five bench conferences as well as a number of other courtroom utterances resulted in severe

prejudice in filing this appeal. Hales does not accept fault for the incomplete record, and

maintains reversal is required.

¶17.   This very issue was presented in Simmons v. State, 805 So. 2d 452 (Miss. 2001). In

Simmons this Court stated:

               Simmons did not follow the proper procedure for correcting omissions
       in the record as set out in the Mississippi Rules. M.R.A.P. 10(c). The Watts
       case indicates that the failure to do so acts as a procedural bar to raising the
       issue on appeal. Watts v. State, 717 So. 2d 314, 317 (Miss. 1998).




                                               9
               The argument that the absence of bench conference transcripts hurts the
       defense’s case on appeal is meritless. Defense counsel failed to object to the
       lack of transcriptions at the time; thus, he is procedurally barred from raising
       the issue on appeal. Burns v. State, 729 So. 2d 203, 212 (Miss. 1998) (“It is
       in poor grace for counsel to participate without objection in unrecorded bench
       conferences and complain for the first time on appeal.”) (quoting Thorson v.
       State, 653 So. 2d 876, 895 (Miss. 1994)).

Id. at 506.

¶18.   In this case, Hales also did not follow the proper procedure for correcting the alleged

omissions in the record as set out in the Mississippi Rules of Appellate Procedure. See

M.R.A.P. 10. Moreover, there is no evidence that Hales attempted to ensure a complete

record. Therefore, in accordance Simmons, Hales is procedurally barred from asserting this

assignment of error. Therefore, this issue is without merit.

       III. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶19.   The trial court denied Hales’ post trial motion for a new trial, or in the alternative,

motion for JNOV. Hales now submits the trial court erred by not granting a directed verdict,

peremptory instruction, JNOV, or alternatively, a new trial.

¶20.   “A motion for new trial challenges the weight of the evidence. A reversal is

warranted only if the lower court abused its discretion in denying a motion for new trial.”

Dilworth v. State, 909 So. 2d 731, 737 (Miss. 2005)(citing Howell v. State, 860 So. 2d 704,

764 (Miss. 2003); Edwards v. State, 800 So. 2d 454, 464 (Miss. 2001); Sheffield v. State,

749 So. 2d 123, 127 (Miss. 1999)). “The appellate court will not order a new trial ‘unless

the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand



                                              10
would sanction ‘unconscionable justice.’” Howell, 860 So. 2d at 764(quoting McDowell v.

State, 813 So. 2d 694, 699-700 (Miss. 2002)).

¶21.   Motions for directed verdicts, JVOVs, and requests for peremptory instructions

challenge the legal sufficiency of the evidence presented at trial. Jefferson v. State, 818 So.

2d 1099, 1110-11 (Miss. 2002). Moreover, all employ the same standard of review. Id.

       Under this standard, this Court will consider the evidence in the light most
       favorable to the appellee, giving the benefit of all favorable inference that may
       be reasonably drawn from the evidence. If the facts so considered point so
       overwhelmingly in favor of the appellant that reasonable men could not have
       arrived at a contrary verdict, we are required to reverse and render. On the
       other hand if there is substantial evidence in support of the verdict, that is,
       evidence of such quality and weight that reasonable and fair minded jurors in
       the exercise of impartial judgment might have reached different conclusions,
       affirmance is required.

Id. at 1111.

¶22.   Hales insists the jury’s verdict is against the overwhelming weight of the evidence and

the State failed to prove guilt beyond a reasonable doubt. Further, Hales alleges that taking

all of the credible evidence in the case at bar as true, reasonable and fair-minded jurors could

only have acquitted him of the possession of cocaine. We do not agree.

¶23.   At trial the State demonstrated Hales was the resident of the apartment searched by

narcotics officers, pursuant to a valid search warrant. In addition, through copious testimony

and physical evidence, the State showed that 5.71 grams of cocaine, as well as razor blades

containing a cocaine residue were discovered in the Hales residence. In response to the

State’s evidence, defense counsel failed to call any witnesses to the stand other than the



                                              11
defendant himself. Hales denied any knowledge of the cocaine recovered, and insinuated his

girlfriend’s son may have actually owned the drugs. The State presented adequate evidence

to support the conclusion that Hales was in possession of the cocaine recovered.

¶24.     This Court has held that “we do not reverse criminal cases where there is a straight

issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing

upon such questions of disputed fact, and we do not intend to invade the province and

prerogative of the jury.” Hyde v. State, 413 So. 2d 1042, 1044 (Miss. 1982) (quoting Evans

v. State, 159 Miss. 561, 132 So. 563, 564 (1931)). This issue presents a straight issue of fact

and should not be reversed, for if this Court were to reverse the verdict in this matter the

province and prerogative of the jury would certainly be invaded.

¶25.     After diligent review of the record, it is our opinion the reasonable juror could not

have arrived at a contrary verdict, as the facts are sufficient to support the jury’s verdict.

Therefore, the verdict is not against the overwhelming weight of the evidence and must be

allowed to stand. Thus, the trial court did not abuse its discretion. This issue is without

merit.

         IV. CUMULATIVE ERROR

¶26.     Finally, Hales argues even if this Court somehow finds no single error calling for

reversal, it should nonetheless grant a new trial based on the cumulative effect of the errors

asserted. This Court has previously held “that individual errors, not reversible in themselves

may combine with other errors to make up reversible error.” Byrom v. State, 863 So. 2d 836,



                                              12
847 (Miss. 2003). See also Hansen v. State, 592 So. 2d 114, 142 (Miss. 1991); Griffin v.

State, 557 So. 2d 542, 553 (Miss. 1990). However, “[w]here there is ‘no reversible error in

any part, . . . there is no reversible error to the whole.’” Gibson v. State, 731 So. 2d 1087,

1098 (Miss. 1998)(quoting McFee v. State, 511 So. 2d 130, 136 (Miss. 1987)).

¶27.   In this case, all of the previous issues have been considered and determined to be

without merit. Therefore, we find the cumulative effect of the errors alleged by Hales, does

not warrant reversal of the jury’s verdict. Thus, this issue is also without merit.

                                      CONCLUSION

¶28.   For the foregoing reasons, the trial court was not in error, nor did it abuse its

discretion. Further, the evidence submitted at trial was such that no reasonable juror could

have reached a contrary verdict. Therefore, the judgment of the trial court is affirmed.

¶29. CONVICTION OF POSSESSION OF COCAINE (5.71 GRAMS) AND
SENTENCE OF SIXTEEN (16) YEARS, WITH FOUR (4) YEARS SUSPENDED, IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

    WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
COBB, P.J. AND DIAZ, J., NOT PARTICIPATING.




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