                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 97-KA-00311-SCT
CALVIN WHITE, a/k/a "TWEETY BIRD"
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              02/14/97
TRIAL JUDGE:                                   HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                     HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        CALLESTYNE HALL CRAWFORD
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             NOEL D. CROOK
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   AFFIRMED - 9/10/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/1/98




     BEFORE SULLIVAN, P.J., McRAE AND SMITH, JJ.


     SMITH, JUSTICE, FOR THE COURT:


¶1. The appellant, Calvin White a/k/a "Tweety Bird," was indicted by the Holmes County Grand Jury
on three counts of sale of cocaine pursuant to Miss. Code Ann. § 41-29-139(a)(1)(1994).
Subsequently, capias was served on White. Later, he was arraigned, at which time he entered a not
guilty plea.

¶2. On the day of the trial, White filed a Motion in Limine and Motion to Suppress certain evidence.
The trial court denied the motions. A jury of his peers found the appellant not guilty of Count I, but
he was found guilty of Count II and Count III. Circuit Court Judge Jannie M. Lewis sentenced White
to a term of ten (10) years on each count in the custody of the Mississippi Department of Corrections
to run concurrently. White's Motion for a New Trial or alternatively a j.n.o.v. was denied by the
Circuit Court.

¶3. Four issues are raised on appeal to this Court:

     I. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE
     DEFENDANT'S MOTION TO SUPPRESS STATE'S EXHIBIT 2 AND 4--COCAINE--
     ON THE GROUNDS THAT THERE WERE BREAKS IN THE CHAIN OF
     CUSTODY?

     II. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE
     DEFENDANT'S MOTION TO EXCLUDE STATE'S EXHIBIT 3--VIDEOTAPE?

     III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S
     MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT OR A NEW
     TRIAL ON THE GROUNDS THAT THE JURY'S VERDICT WAS AGAINST THE
     OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE?

     IV. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING, SUA SPONTE,
     A CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF THE
     CONFIDENTIAL INFORMANT?

                                   STATEMENT OF THE FACTS

¶4. The appellant, Calvin White, sold .3 gram of crack cocaine to Ross Kyzer, a confidential
informant. Kyzer met with Narcotics Task Force Agents, Al Jobe and Andy Ledbetter and was given
$100 in state funds to purchase crack cocaine from a willing seller in Pickens, Mississippi. According
to Mr. Jobe and the informant, the pre-buy meeting took place at 12:00 p.m. Then the informant left
for Pickens at 12:33 p.m. At 12:52 p.m. a $40 sale was made and eight minutes later another sale was
made. Both transactions were videotaped.

¶5. Based on the report, the appellant, seen on the videotape, was wearing blue jeans, blue shirt,
tennis shoes, and red and blue cap at the time of the first sell. Eight minutes later, at the time of the
second sell, he was seen on videotape wearing black pants, black cap, black shoes, and a white shirt.
The appellant's counsel argued in trial that the clothing differences should make one doubt that both
sales were conducted by the same man. However, Alvin Jobe, one of the narcotics officer, fully
explained the differences in clothing in such a short time frame:

     We've had it happen in the past when we've conducted an investigation like this that the person
     may realize or believe that they've sold to an undercover, and they go and change clothes for
     that purpose. We've had it happen on several occasions and in less than eight minutes like it was
     in this case.

¶6. At the close of the State's case-in-chief, White's motion for a directed verdict was overruled. The
State produced James Lee as a rebuttal witness who, much like Kyzer, the informant, identified the
individual in the videotape as Calvin White.

¶7. The jury returned a verdict of "guilty" of the sales that took place on February 10, 1996. The jury,
however, acquitted White of the sale taking place on February 8. Unlike the transaction that took
place on February 10, the February 8 transaction was not videotaped due to a mechanical
malfunction.

¶8. White's motion for a new trial, or in the alternative, for j.no.v. was denied.

                                         LEGAL ANALYSIS
     I. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE
     DEFENDANT'S MOTION TO SUPPRESS STATE'S EXHIBIT 2 AND 4--COCAINE--
     ON THE GROUNDS THAT THERE WERE BREAKS IN THE CHAIN OF
     CUSTODY?

¶9. The appellant argues that the court improperly denied the Motion to Suppress the evidence of
cocaine. White contends that the evidence fails to show how the cocaine came into the possession of
Marvin Lawrence who delivered it to Bernice Livingston at the crime laboratory in Jackson or how
the evidence got from Livingtson to Jacqueline Gardner who performed the analysis and determined
that the substance contained cocaine. Appellant relies on Griffin v. State, 557 So. 2d 542, 552 (Miss.
1990), where this Court held that contemporaneous objection is not needed where appellant has been
denied a fundamental fair trial. White claims that the evidence indicates a substantial likelihood of
tampering, contamination, or substitution of evidence that has resulted in a violation of appellant's
right to fair trial.

¶10. The trial record reflects that the substances purchased from White by Kyzer were given to Agent
Jobe and placed inside ". . . the evidence vault at the task force office." The drugs were subsequently
given to Chief Lawrence who delivered them to the crime laboratory in Jackson on February 14,
1996, at 2:50 p.m. Jacqueline Gardner performed the analysis on the two exhibits purchased on
February 10 and determined they contained cocaine.

¶11. White further contends that the chain of custody from Bernice Livingston to Monica Artis, the
drug analyst, was flawed. Such a contention has no merit since Artis performed the analysis on the
cocaine sold on February 8, not the cocaine sold on February 10. White was acquitted of the charge
contained in Count I, alleging a sale of cocaine on February 8. White's chain of custody argument is
flawed for this reason if for no other.

¶12. This Court has held that the test of whether there has been a proper showing of the chain of
possession of evidence is whether there is any indication or reasonable inference of probable
tampering with the evidence or substitution of the evidence. Gibson v. State, 503 So. 2d 230, 234
(Miss. 1987); Barnette v. State, 478 So. 2d 800, 804 (Miss. 1985); Lambert v. State, 462 So. 2d
308, 312 (Miss. 1984); Morris v. State, 436 So. 2d 1381, 1388 (Miss. 1983); Harrison v. State, 307
So. 2d 557, 561 (Miss. 1975); Nix v. State, 276 So. 2d 652, 653 (Miss. 1973); Grady v. State, 274
So. 2d 141, 143 (Miss. 1973).

¶13. The State produced the witnesses to sufficiently satisfy the chain of custody. However, "the
burden to produce evidence of a broken chain of custody (i.e., tampering) is on the defendant."
Hemphill v. State, 566 So. 2d 207, 208 (Miss. 1990) (citing Nix, 276 So. 2d at 653) (emphasis
added). Additionally, "[m]atters regarding the chain of custody of evidence are largely left to the
discretion of the trial judge, and 'unless this judicial discretion has been so abused as to be prejudicial
to the defendant, this Court will not reverse the ruling of the trial court.'" Doby v. State, 532 So. 2d
584, 588 (Miss. 1988) (quoting Morris, 436 So. 2d at 1388).

¶14. In the case sub judice there is no suggestion of tampering or substitution of evidence. The
evidence was under lock and key from the time it was given to Agent Jobe on February 10 until it
was surrendered to Chief Lawrence who turned it over to the crime laboratory in Jackson on
February 14. The defendant has failed to produce evidence of a broken chain of custody. Moreover,
no abuse of judicial discretion has been demonstrated here. This claim is devoid of merit.

     II. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE
     DEFENDANT'S MOTION TO EXCLUDE STATE'S EXHIBIT 3--VIDEOTAPE?

¶15. White contends the lower court committed reversible error by allowing the videotape in as
evidence by denying the appellant's motion in limine. He argues that the videotapes are not clearly
defined, the videotape is in very poor condition, there is no audio, and the tape fails to show if the
person seen therein is offering drugs. The appellant relies on Foster v. California, 394 U.S. 440, 443
(1969), which holds that an impermissively suggestive identification procedure undermines the
reliability of eye witness identification and presents danger of misidentification as to violate due
process. Foster can be factually distinguished from the case at bar as it concerns the reliability of
eyewitnesses in viewing a police line up; in the case sub judice the facts involve a videotape.

¶16. Motions in limine ". . .should be granted only when the trial court finds two factors are present:
the evidence in question will be inadmissable at trial under the rules of evidence and that mere offer,
reference, or statements made during trial concerning the evidence will tend to prejudice the jury."
Hopkins v. State, 639 So. 2d 1247, 1254 (Miss. 1993). The case at bar does not exist in either
posture. Moreover, "[i]t is elementary that photographs, moving or still, recordings and admissions
by defendants are admissible." Crenshaw v. State, 513 So. 2d 898, 899 (Miss. 1987).

     III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S
     MOTION FOR A JUDGEMENT NOTWITHSTANDING THE VERDICT OR A NEW
     TRIAL ON THE GROUNDS THAT THE JURY'S VERDICT WAS AGAINST THE
     OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE?

¶17. Despite the introduction of a videotape of the drug transaction and the identification of the
appellant by Kyzer, Agent Jobe, and James Lee as the individual who approached the window of
Kyzer's pickup truck, White assails both the sufficiency and the weight of the evidence.

                                    A. Sufficiency of the Evidence

¶18. The State's proof consisted of positive in-court identification made by Kyzer of White as the
seller of cocaine on two separate occasions on February 10. The proof further consisted of a
videotape of the transaction which was viewed by the jury. Kyzer, Agent Jobe, and James Lee, the
State's rebuttal witness, all identified the individual in the videotape as Calvin White. Additionally,
Agent Jobe testified that he monitored the two transactions by way of listening devices.

¶19. The level of certainty of the State's witnesses is no less compelling. Kyzer said there was no
doubt in his mind that White was the man in the videotape who sold him drugs. Likewise, Agent Jobe
testified there was no doubt in his mind--"none whatsoever"--that the person in the videotape making
the sale was White. After watching the videotape from the witness stand, James Lee testified that the
person that came to the window of Kyzer's vehicle was the defendant, Calvin White.

¶20. Following the State's case-in-chief, White produced one witness on his own behalf. By
introducing evidence in his own behalf, White waived his motion for a directed verdict that he
submitted at the close of the State's case-in-chief. Holland v. State, 656 So. 2d 1192, 1197 (Miss.
1995). White failed to request peremptory instruction. His post-verdict motion for a new trial or
j.n.o.v. was subsequently denied.

¶21. These motions test legal sufficiency as opposed to weight. In judging the "sufficiency" of the
evidence on a motion for a directed verdict, or request for peremptory instruction, or motion for
judgement notwithstanding the verdict, the trial judge is required to accept as true all of the evidence
that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to
disregard evidence favorable to the defendant. Ellis v. State, 667 So. 2d 599, 612 (Miss. 1995);
Clemons v. State, 460 So. 2d 835, 839 (Miss. 1984); Forbes v. State, 437 So. 2d 59, 60 (Miss.
1983); Bullock v. State, 391 So. 2d 601, 606 (Miss. 1980). If under this standard, sufficient evidence
to support the jury's verdict exists, the motion for a directed verdict and request for a peremptory
instruction should be overruled. Brown v. State, 556 So. 2d 338, 340 (Miss. 1990); Davis v. State,
530 So. 2d 694, 703 (Miss. 1988). A finding that the evidence is insufficient results in a discharge of
the defendant. May v. State, 460 So. 2d 778, 781 (Miss. 1984).

¶22. The evidence, together with all reasonable inferences to be drawn therefrom, was legally
sufficient to support the appellant's conviction. The proof demonstrated directly that he was in actual
possession of cocaine, and he sold cocaine on two separate occasions to Ross Kyzer.

¶23. White contends that there was conflicting testimony among the witnesses. He is correct that
Kyzer testified that they met in Yazoo County for the pre-buy meeting while Agent Jobe that testified
they met in Holmes County. This Court, however, has held, "[any] inconsistencies of the in-court
identification go only to the credibility and weight of the evidence, which is a factual determination to
be made by the jury." Kimbrough v. State, 379 So. 2d 934, 936 (Miss. 1980) (citations omitted).
This Court has further held "[t]he jury has the duty to determine the impeachment value of
inconsistencies or contradictions as well as testimonial defects of perception, memory and sincerity."
Jones v. State, 381 So. 2d 983, 989 (Miss. 1980).

¶24. Accepting as true the testimony elicited during the State's case-in-chief, and accepting as true all
reasonable and logical inferences, the State's proof was sufficient to establish beyond a reasonable
doubt that on February 10, 1996, Calvin White, on two separate occasions, sold crack cocaine to
Ross Kyzer for $40 (Count II) and $20 (Count III). As the appellant aptly queries, "[w]hat other
inference could be drawn where, as here, the transactions were videotaped?"

                                      B. Weight of the Evidence

¶25. In the case at bar, White's motion for j.n.o.v. or, alternatively, a new trial, contains a distinct
claim that the jury verdict was against the overwhelming weight of the evidence. Such a contention
fails because "the motion for a new trial is addressed to the sound discretion of the trial court."
Burge v. State, 472 So. 2d 392, 397 (Miss. 1985). Contrary to the claim made by White, no abuse of
judicial discretion has been demonstrated here.

¶26. The testimony of Ross Kyzer, if true, reflects that Calvin White was present at the scene of the
transactions and made two separate sales to Kyzer. Kyzer testified that he was telling the truth. The
jury, needless to say, had the final word.
¶27. There was not a great deal of evidence for the fact finder to weigh since the defendant did not
testify. In Reeves v. State, 159 Miss. 498, 132 So. 331 (1931), the Court held that the testimony by
the State's witnesses may be given full effect by the jury where, as here, an accused does not take the
witness stand.

¶28. In Maiben v. State, 405 So. 2d 87, 88 (Miss. 1981), this Court held:

     [W]e will not set aside a guilty verdict, absent other error, unless it is clearly a result of
     prejudice, bias or fraud, or is manifestly against the weight of credible evidence.

(emphasis added). Also worth repeating are the following observations made in Groseclose v. State,
440 So. 2d 297, 300 (Miss. 1983):

     We will not order a new trial unless convinced that the verdict is so contrary to the
     overwhelming weight of the evidence that, to allow it to stand, would be to sanction an
     unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss. 1983). Any less
     stringent rule would denigrate the constitutional power and responsibility of the jury in our
     criminal justice system.

(emphasis added).

¶29. In conclusion, this court cannot set aside a guilty verdict unless the verdict is manifestly against
the weight of credible evidence, and unless this Court is convinced that to allow the verdict to stand
would be to sanction an unconscionable injustice. It seems clear that the case sub judice does not
exist in this posture.

     IV. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING, SUA SPONTE,
     A CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF THE
     CONFIDENTIAL INFORMANT?

¶30. White claims the trial judge erred in failing to grant a cautionary instruction concerning the
confidential informant, Ross Kyzer. No cautionary charge was requested, and this Court submits that
the judge did not err in failing to grant one sua sponte.

¶31. The appellant relies on Williams v. State, 463 So. 2d 1064, 1069 (Miss. 1985), where this
Court held:

     Where, as here, the full facts and circumstances of the State's arrangement with its bounty
     hunter witness are disclosed to the jury and where that witness is subject to cross-examination
     we will not disturb on this account a subsequent guilty verdict. The conduct of the Bureau of
     Narcotics will have to reach a level of outrageousness not present here before we will consider
     and take further action.

(emphasis added). White argues that the full facts and circumstances of the State's pay arrangement
with the confidential informant were not revealed to the jury. On cross-examination, the informant
testified that he is paid but the amount varies.

¶32. The requirements set out in Williams were met. First, the record clearly reflects that White's
attorney was given an adequate opportunity to cross-examine Kyzer with respect to his status as a
paid confidential informant. One wonders how much more specific the appellant would like Kyzer to
be concerning his pay status. Since the amount varied from deal to deal, Kyzer could not reveal any
more particulars about the pay arrangement since he himself did not know anymore information. The
attorney further cross-examined Kyzer about his prior felony convictions for the sale of cocaine.
Thus, the jury knew all about "the facts and circumstances" concerning the confidential source.
Second, the record simply does not reflect a "level of outrageousness" by the Narcotics Bureau in
this investigation.

¶33. The appellant further relies on Edwards v. State, 630 So. 2d 343 (Miss 1994), where the Court
reversed for failure to grant the cautionary instruction; however, the case at bar is factually
distinguishable from Edwards. The Court in Edwards held that the Williams test was not met when
the informant testified that she was only compensated on a per-buy basis. It is important to note that
in Edwards the circumstances were such that without the agent's testimony, the State was left with
nothing but the testimony of the accomplice. The Edwards Court stated that cautionary instruction
regarding testimony of accomplice was mandatory in drug sale prosecution based solely on
accomplice's testimony corroborated only by confidential informant. Id. at 344. In the case sub
judice, the State introduced a videotape of the drug transaction which was viewed by the jury.
Additionally, Kyzer, Agent Jobe, and James Lee all positively identified White as the individual in the
videotape who approached Kyzer's vehicle. Consequently, Edwards, where the prosecution's case
was based solely on the testimony of an accomplice corroborated only by a confidential source, is
inapplicable to the case at bar.

¶34. Miss. Code Ann. § 99-17-35 (1994) specifically states, "[t]he judge in any criminal cause, shall
not sum up or comment on the testimony, or charge the jury as to the weight of the evidence. . ."
Under the facts of this case, a cautionary charge was properly eschewed as a comment on the weight
of the evidence.

¶35. The circuit court did not commit a reversible error in not granting, sua sponte, a cautionary
instruction regarding the testimony of the confidential informant.

                                           CONCLUSION

¶36. Despite White's arguments, scrutiny of the record reflects that the questions he raises are devoid
of merit. No reversible error took place during the trial, therefore, this Court affirms the conviction
and sentence imposed by the trial court .

¶37. COUNT II : CONVICTION OF SALE OF COCAINE AND SENTENCE TO TEN (10)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AFFIRMED. COUNT III: CONVICTION OF SALE OF COCAINE AND SENTENCE TO
TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY
TO SENTENCE IN COUNT III.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, MILLS
AND WALLER, JJ., CONCUR.
