                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2002-KA-01429-SCT

DONALD RAMIRO COUSAR a/k/a "COOP"

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            5/20/2002
TRIAL JUDGE:                                 HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     PHILLIP BROADHEAD
                                             THOMAS M. FORTNER
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. GLENN WATTS
DISTRICT ATTORNEY:                           ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 07/17/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE McRAE, P.J., WALLER AND COBB, JJ.

       COBB, JUSTICE, FOR THE COURT:

¶1.    Donald Ramiro Cousar was tried for sale of cocaine before a Hinds County Circuit

Court jury on April 10, 2002. Cousar did not testify or call any other witnesses. He was

found guilty and sentenced to twenty years in the custody of the Mississippi Department of

Corrections. From that conviction and sentence, he appeals to this Court, citing as error the

trial court’s failure to fully instruct the jury regarding witness identification testimony,

failure to grant a directed verdict, failure to grant his motion for J.N.O.V. or a new trial, and
cumulative error. We find no merit to these assignments of error and thus affirm the trial

court.

                                           FACTS

¶2.      On May 1, 2001, Reserve Officer Sergeant Jim Stegall (Stegall) was working with

Officer James McGowan (McGowan) and other members in the Narcotics Division of the

Jackson Police Department. They had received information that narcotics were being sold

from Baker’s Motel in Jackson, Mississippi. The agents planned an undercover operation

in which Stegall, a reserve officer who completed his training at the police academy in 1995,

would attempt to purchase drugs at the motel from a suspect known as Coop.1 McGowan

and others would be nearby, out of sight, listening to the conversation, if any should develop,

between Stegall and Coop or any other would-be drug salesman. The conversation would

be tape recorded via a body wire worn by Stegall and preserved for evidentiary purposes.

¶3.      Upon arriving at Baker’s Motel, Stegall asked to see Coop and was directed to the

motel’s interior lot. Coop himself subsequently directed Stegall to a motel room where

Stegall purchased eight rocks of cocaine from Coop. The transaction was heard in its

entirety by Officer McGowan and other members of the Narcotics Division of the Jackson

Police Department. Subsequent investigation by Officer McGowan identified Coop, who

did maintenance and security work at the Baker’s Motel, as being Donald Ramiro Cousar.




         1
          The nickname of defendant Donald Ramiro Cousar (hereafter Cousar or Coop).

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Cousar was not arrested immediately due to an on-going investigation, but one month later

he was arrested for the sale of cocaine to Stegall.

¶4.    At his trial Cousar was identified in court by Officers McGowan and Stegall as being

Coop, the seller of the eight rocks of cocaine. Additionally, Officer Stegall testified that the

tape recording made of the purchase was an accurate representation of what occurred on May

1, 2001. The tape was played in its entirety for the jury, and Officer Stegall identified not

only his own voice but also Coop’s voice on the tape. Cousar did not testify, nor did he call

any other witnesses.

                                         ANALYSIS

           I. JURY INSTRUCTIONS ON WITNESS IDENTIFICATION.

¶5.    Before trial, counsel for Cousar submitted jury instruction D9-A, which read as

follows:

                        The Court instructs the jury that whether DONALD
              RAMIRO COUSAR was the person who committed the crime
              as alleged and charged in the indictment in this case is a matter
              for you to decide. The state has the burden of proving beyond
              a reasonable doubt the identity of the perpetrator of the crime.
               If you are not convinced from the evidence beyond a reasonable
              doubt that DONALD RAMIRO COUSAR was the person who
              committed the crime, you must find him not guilty.
                      Identification testimony is an expression of belief or
              impression by the witness. Its value depends on the opportunity
              the witness had to observe the offender at the time of the offense
              and to make a reliable identification later. In appraising the
              identification testimony of a witness, you should consider the
              following: a) the opportunity that the witness had to view the
              defendant when the crime occurred; b) the witness’s attention at
              the time; c) the accuracy of any prior descriptions of the
              defendant by the witness; d) the witness’s level of certainty at

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                the initial post crime confrontation, and e) the length of time
                between the crime and the confrontation.
                        If after considering all of the above you have a
                reasonable doubt that DONALD RAMIRO COUSAR is the
                person who committed the crime as alleged by the State of
                Mississippi, it is your sworn duty to find him “not guilty.”

¶6.     The State objected to factor “c” (accuracy of any prior descriptions of the defendant

by the witness) stating that it did not apply to the facts of the case because none of its

witnesses had given any prior descriptions of the defendant, and it would confuse the jury

to leave that provision in the instruction. In response, counsel for Cousar pointed out that

Officer McGowan’s report did reflect a physical description of Coop2 and that it could be

established by inference that the description must have come from Officer Stegall. The trial

judge, however, recalled that on cross-examination, Stegall had “specifically [been asked]

if he provided that description and he said no.” Defense counsel then acknowledged that the

description might have come from the informant. The trial court concluded that it was never


        2
           During cross examination, McGowan had been questioned regarding a description found in
McGowan’s report, as follows:
         Q. There is no description of the suspect made in your report, is there?
         A. Not in my report, other than the a/k/a/ Coop.
         Q. There’s no physical description?
         A. Not in my report.
Defense counsel then asked and was granted permission to approach McGowan to show him the report, and
continued:
         Q. You describe him there as being five-eleven, approximately 200 pounds, black skin
         color, brown eyes; is that correct?
         A. That’s correct.
Defense counsel did not attempt to clarify this inconsistency, nor did he in any way call attention to any
similarity or lack thereof, to the defendant present in the courtroom. He closed his cross examination by
asking McGowan if he had seen Cousar since he went to jail, to which McGowan replied “not that I know
of.”
         When Stegall, the only eyewitness testifying, was asked if the aforementioned physical description
was that of Coop, he replied “No. The description you heard on that tape was not of Mr. Coop.”

                                                    4
established who provided a physical description of the person known as Coop as being 5'11"

and 200 pounds. Therefore, provision “c” was redacted.

¶7.   The trial court further concluded that any inconsistencies or discrepancies in the

testimony were covered by instruction C-2, which read as follows:

                     You, as jurors, are the sole judges of the credibility of the
             witnesses and the weight their testimony deserves.
                     You should carefully scrutinize all the testimony given,
             the circumstances under which each witness has testified, and
             every matter in evidence that tends to show whether a witness
             is worthy of belief. Consider each witness’ objectivity, state of
             mind, demeanor and manner while on the stand. Consider the
             witness’ ability to observe the matters as to which he or she has
             testified, and whether he or she impresses you as having an
             accurate recollection of these matters. Consider the extent to
             which it is contradicted by other evidence in the case.
             Inconsistencies or discrepancies in the testimony of a witness,
             or between the testimony of different witnesses, may or may not
             cause the jury to discredit such testimony. Two or more persons
             witnessing an incident or a transaction may see or hear it
             differently; and innocent misrecollection, like failure of
             recollection, is not an uncommon experience. In weighing the
             effect of a discrepancy, always consider whether it pertains to
             a matter of importance or an unimportant detail, and whether the
             discrepancy results from innocent error or intentional falsehood.
             After making your own judgment, you will give the testimony
             of each witness such credibility, if any, as you may think it
             deserves.

Redacted instruction D-9A, as well as C-2, were given as jury instructions.

¶8.   Citing Davis v. State, 568 So. 2d 277 (Miss. 1990), Cousar argues that the trial court

erred in redacting factor “c” from his proposed jury instruction 9-A, because the revised

instruction failed “to fully instruct the jury as to all the elements required for proper



                                              5
identification.” His reliance on Davis is misplaced, however. The instruction at issue in

Davis originally read as follows:

              The Court instructs the Jury that in reaching your verdict you are to
              consider all of the evidence concerning the entire case and the
              circumstances surrounding the crime. One of the issues in this case is
              the identification of George Lee Davis as the perpetrator of the crime.
              As with each element of the crime charged, the State has the burden of
              proving identity beyond a reasonable doubt, and before you may
              convict George Lee Davis you must be satisfied beyond a reasonable
              doubt of the accuracy of the identification of George Lee Davis. If,
              after considering all of the evidence concerning the crime and the
              witness’ identification of George Lee Davis as the person who
              committed the crime, you are not convinced beyond a reasonable doubt
              that he is the person who committed the crime, then you must find him
              not guilty.

               Identification testimony is an expression of belief or impression by the
              witness. You must judge its value and reliability from the totality of
              the circumstances surrounding the crime and the subsequent
              identification. In appraising the identification testimony of a witness,
              you should consider the following:
              1) Did the witness have an adequate opportunity to observe the
              offender?
              2) Did the witness observe the offender with an adequate degree of
              attention?
              3) Did the witness provide an accurate description of the offender after
              the crime?
              4) How certain is the witness of the identification?
              5) How much time passed between the crime and the identification?
              If, after examining all of the testimony and the evidence, you have a
              reasonable doubt that George Lee Davis was the person who
              committed the crime, then you must find George Lee Davis not guilty.

Id. at 280 (emphasis in original).

¶9.    Cousar claims that this Court approved the above instruction in Davis , but that is not

correct. To the contrary, this Court found that the trial judge’s decision to strike the


                                              6
italicized portion of the above instruction was not erroneous, and affirmed. While it is true

that this Court found the five factors in the italicized portion of the instruction “correctly

states our case law and could have been granted,” id. (emphasis added), we clearly did not

require that all five factors must be found in every case. Id. at 280.

¶10.   The general rule is that an instruction is not to be given if it is not supported by

evidence. Haggerty v. Foster, 838 So. 2d 948, 955 (Miss. 2002) (citing Dennis v. State, 555

So. 2d 679, 683 (Miss. 1989); Moffett v. State, 540 So. 2d 1313 (Miss. 1989); Nicolaou v.

State, 534 So. 2d 168 (Miss. 1988)). Granting instructions not supported by evidence is

error. Id. The trial court found that a physical description of Cousar was not provided by

Officer Stegall and that the source of the description mentioned in Officer McGowan’s

testimony was unclear, and thus concluded that the reference to “prior description of the

defendant by the witness” was not supported by the record and should not be given.

Therefore, based upon the record, the trial court did not err in redacting factor “c” from jury

instruction 9A under the facts of this case.

¶11.   Cousar’s reliance upon Warren v. State, 709 So. 2d 415, 421 (Miss. 1998), is also

misplaced. In Warren, reversible error was found because no identification instruction was

given. Id. In the present case, unlike Warren, the record reflects that the jury was given

proper instructions for identification testimony, given the facts of the case. Jury instruction

C-2 covered not only “inconsistencies” or “contradictions” in the testimony of a single

witness or between different witnesses, but also the conflicting testimony about the



                                               7
significance of a description given for someone else. The credibility of a witness is a

question of fact for the jury to resolve.

¶12.   When determining whether reversible error lies in the granting or refusal of various

instructions, the instructions actually given must be read as a whole to determine whether a

jury has been incorrectly instructed. When so read, if the instructions fairly announce the

law of the case and create no injustice, no reversible error will be found. Haggerty, 838 So.

2d at 953 (citing Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997)). It is not proper to

consider excerpts from jury instructions or to evaluate portions of jury instructions out of

context, since jury instructions must be considered with the other instructions given. Id. at

954.

¶13.   This issue is without merit.

              II. SUFFICIENCY AND WEIGHT OF THE EVIDENCE.

¶14.   Challenges to the sufficiency of the evidence (raised by motions for directed verdict

and for JNOV) and challenges to the weight of the evidence (raised by motions for a new

trial) raise similar issues. This Court has set forth the standards for the challenges to the

former, as follows:

              Our standards of review for a denial of a judgment
              notwithstanding the verdict and a directed verdict are also
              identical. Under this standard, this Court will consider the
              evidence in the light most favorable to the appellee [the State],
              giving that party 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
              [Cousar] that reasonable men could not have arrived at a


                                             8
              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.

Pruitt v. State, 807 So. 2d 1236, 1242 (Miss. 2002) (citing Coleman v. State, 697 So.2d at

787-88).

¶15.   This Court’s standard of review for claims that a judgment is against the

overwhelming weight of the evidence is as follows:

               In determining whether a jury verdict is against the
               overwhelming weight of the evidence, this Court must accept
               as true the evidence which supports the verdict and will
               reverse only when convinced that the circuit court has abused
               its discretion in failing to grant a new trial. Thornhill v. State,
               561 So.2d 1025, 1030 (Miss.1989), rehearing denied, 563
               So.2d 609 (Miss.1990). Only when the verdict is so contrary
               to the overwhelming weight of the evidence that to allow it to
               stand would sanction an unconscionable injustice will this
               Court disturb it on appeal. Benson v. State, 551 So.2d 188,
               193 (Miss.1989) (citing McFee v. State, 511 So.2d 130, 133-
               134 (Miss.1987)). Thus, the scope of review on this issue is
               limited in that all evidence must be construed in the light most
               favorable to the verdict. Mitchell v. State, 572 So.2d 865, 867
               (Miss.1990).

Powell v. State, 806 So. 2d 1069, 1133 (Miss. 2001) (quoting Herring v. State, 691

So.2d 948, 957 (Miss.1997)).

¶16.   Cousar argues that the trial court erred in denying his motions for a directed verdict

or a J.N.O.V. because he should not be found guilty by the uncorroborated testimony of a

single witness in a case where there was neither video nor photographs taken of the alleged


                                              9
cocaine purchase. He also argues that there was insufficient evidence for determining the

identity of the mysterious Coop. However, this Court has stated that a single witness’s

uncorroborated testimony is sufficient to support a conviction:

        With this reasoning in mind, the Court holds that the testimony of Conner was
        legally sufficient to support Doby's conviction for the sale of cocaine. This
        Court recognizes the rule that persons may be found guilty on the
        uncorroborated testimony of a single witness. See Ragland v. State, 403 So.
        2d 146 (Miss. 1981).

Doby v. State, 532 So. 2d 584, 591 (Miss. 1988).

¶17.    In determining what should be considered in assessing the validity of identification

testimony, this Court has stated as follows: “we consider ‘whether or not substantial

evidence supports the trial court's findings that, considering the totality of the circumstances,

in-court identification testimony was not impermissibly tainted’ and we will disturb the

findings of the lower court ‘only where there is an absence of substantial credible evidence

supporting it’.” McDowell v. State, 807 So. 2d 413, 418-19 (Miss. 2001) (citing Brooks v.

State, 748 So.2d 736, 741 (Miss. 1999)).

¶18.    The record reflects that Cousar was identified in the court room by Officer Stegall as

the person from whom he purchased eight rocks of cocaine. Officer Stegall testified to

having met Cousar before3 and to negotiating the purchase with him in the Baker Motel room

        3
          On cross-examination about the day he purchased the cocaine, Officer Stegall was asked:
          Q. You did not know Coop at that time?
          A. I had met him before - -
(at that point the prosecutor objected and there was discussion outside the presence and hearing of the jury,
in which the prosecutor stated he wanted to make the court aware that the defense was “about to open the
door” to testimony of other crimes.) When the jurors returned, nothing was mentioned to them about the
answer given by Stegall, and defense counsel proceeded with different questions.

                                                     10
46. They were face to face for several minutes initially, then again 5 or 10 minutes later after

Cousar returned with the cocaine for a total time in the motel complex of “30 to 45 minutes.”

Officer Stegall also watched Cousar through the motel room window while Cousar was going

to get the cocaine and returning with it. This took place at approximately 3:30 p.m. on May

1, 2001.

¶19.    Officer Stegall stated no prior physical descriptions of Cousar, although he did

identify Cousar’s voice on the tape recording of the cocaine purchase, as it was played for

the jury. He had previously testified that the tape “correctly represented the transaction”

between them. The period of time between Officer Stegall’s face-to-face encounter with

Cousar for the alleged purchase and Cousar’s subsequent arrest and later identification was

a month and four days.

¶20.   As the record shows, Officer Stegall’s testimony more than adequately meets the

requirements for a legally sufficient identification of Cousar. The credibility of witnesses

and responsibility for weighing and considering conflicting evidence is for the jury, not the

reviewing court. Sturdivant v. State, 745 So. 2d 240, 247 (Miss. 1999).

¶21.    This issue is without merit.

                              III. CUMULATIVE ERROR.

¶22.   This Court may reverse a conviction and sentence based on the cumulative effect of

errors that independently would not require reversal. Coleman v. State, 697 So.2d at 787.

To this end, Cousar reiterates his arguments regarding the identification process and

regarding the failure to direct a verdict, grant a JNOV or a new trial in favor of Cousar, all

                                              11
of which have been previously considered and found without merit. Cousar fails, however,

to note that Coleman further states that: “Where there was no reversible error in any part,

so there is no reversal error to the whole.” Id.

¶23.   Cousar also argues that it was error for the trial judge to deny a defense motion for

a mistrial after the State made improper statements during closing argument. The assistant

District Attorney, while recounting the testimony which had been given and what the State

had to prove, said “Additionally, we had to prove that this occurred on May 1 of 2001. You

haven’t heard anything to contradict when this happened- -. ” At this point, an objection was

made by Cousar’s counsel, who argued that the statement was a direct comment on the

defendant’s right to remain silent and asked for a mistrial or at the least, a cautionary

instruction. The trial judge then reminded the jury of his instruction regarding Cousar’s right

not to testify, which was previously given them, and re-read the instruction to them. He

stated “you must not hold it against the defendant in any way because he did not testify.

That’s his constitutional right.” After asking the jurors “are there any of you on the jury that

cannot follow that instruction” and “are there any of you that cannot disregard that comment”

and seeing no raised hand, the judge denied the motion for a mistrial. Cousar argues that the

judge’s protracted cautionary statement, in and of itself, is error, but fails to cite any

authority to support his assignment of error. Failure to cite any authority is a procedural bar,

therefore this Court is under no obligation to consider this argument. Id.

¶24.   This issue is without merit.

                                      CONCLUSION

                                              12
¶25.   Considering the facts of this case as a whole, Cousar was not denied a fair trial. Each

of the assignments of error is without merit. The judgment of the Hinds County Circuit

Court is affirmed.

¶26. CONVICTION OF SALE OF COCAINE AND SENTENCE TO SERVE A
TERM OF (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED.

    PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, EASLEY, CARLSON AND
GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.




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