Thomas Ethren Sullivan v. State of Mississippi ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-KA-00521-SCT
THOMAS ETHREN SULLIVAN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 03/11/1998
TRIAL JUDGE: HON. W. M. O'BARR, JR.
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: HERBERT H. KLEIN, III.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
DISTRICT ATTORNEY: E. LINDSAY CARTER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/04/1999
MOTION FOR REHEARING FILED: ; denied 8/10/2000
MANDATE ISSUED:
BEFORE SULLIVAN, P.J., SMITH AND COBB, JJ.
SMITH, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. Thomas Ethren Sullivan appeals his March 4, 1998 conviction in the Forrest County Circuit Court for
the crimes of conspiracy and sale of amphetamine. He was then sentenced to ten years in the custody of the
Department of Corrections and a $25,000 fine for the conspiracy charge and to a consecutive fifteen year
sentence in the custody of the Department of Corrections and a $25,000 fine for the sale of amphetamine
charge. Sullivan appeals his conviction and sentence citing the following issues:
I. DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF SARAH
BRADLEY, SIMONE REEVES, AND SIMPSON COUNTY DEPUTY RANDY
CRAWFORD, AND IN DETERMINING THAT THE JURY SHOULD DECIDE
WHETHER CERTAIN STATEMENTS MADE BY KARLTON BRADLEY WERE IN
FURTHERANCE OF THE CONSPIRACY?
II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE'S EXHIBITS OF
CONTROLLED SUBSTANCES TO BE INTRODUCED?
III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER
ALLOWING THE TESTIMONY OF AGENT SHELBOURN REGARDING THE
GUILTY PLEAS AND GUILTY VERDICTS OF CO-DEFENDANTS?
IV. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER
THE ASSISTANT DISTRICT ATTORNEY CALLED THE DEFENDANT A "DANGER
TO SOCIETY"?
V. DID THE TRIAL COURT ERR IN ALLOWING RE-CROSS EXAMINATION OF
THE DEFENDANT, WHEN THE DEFENDANT ARGUES THAT THE QUESTIONS
WERE OUTSIDE THE SCOPE OF THE RE-DIRECT QUESTIONING?
VI. DID THE TRIAL COURT ERR IN REFUSING TO GRANT CIRCUMSTANTIAL
EVIDENCE INSTRUCTIONS PROPOSED BY THE DEFENDANT?
VII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S
PROPOSED JURY INSTRUCTION D-14?
VIII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S
MOTION FOR A NEW TRIAL AND MOTIONS FOR A DIRECTED VERDICT,
JUDGMENT NOTWITHSTANDING THE VERDICT, AND JURY INSTRUCTION D-7?
IX. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY TO CONTINUE ITS
DELIBERATIONS WHEN ONE JUROR STATED THAT THE JURORS WERE
"HOPELESSLY DEADLOCKED"?
X. WAS THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS
PREJUDICIAL TO THE DEFENDANT?
XI. DID THE TRIAL COURT ERR IN IMPOSING A SENTENCE THAT WAS
DISPROPORTIONATE TO THE CRIME ITSELF AND TO THE SENTENCES OF
SIMILARLY SITUATED DEFENDANTS?
FACTS
¶2. Sullivan's conviction is based on evidence arising out of two separate incidents, one on May 29, 1996,
and the other on June 13, 1996. The facts of the first incident are so similar to the second incident that, for
purposes of addressing the issues involved, it is sufficient to only recount the facts surrounding the first
incident. Sullivan acknowledges that on both dates of the alleged sales of amphetamine he met Karlton
Bradley at his home in Simpson County, but Sullivan testifies that Bradley was there to sell him cocaine.
Sullivan states that he has a cocaine addiction. However, Sullivan claims that he at no time supplied
amphetamine to Bradley.
¶3. During the time at issue, Karlton Bradley was regularly selling drugs to Simone Reeves. Reeves was an
undercover agent with the Mississippi Bureau of Narcotics, and she testified at trial regarding her
relationship with Karlton Bradley. On May 29, Reeves and Bradley spoke on the telephone, and she asked
him if she could buy amphetamine from him. Bradley then called Sullivan, as evidenced by phone records
and an audio tape that recorded Bradley's incoming and outgoing calls. The calls were monitored by the
Bureau of Narcotics. During the May 29 call, Bradley said to Sulllivan,"I just talked to somebody. They
want two of those." Sullivan claims that Bradley is referring to guns that Sullivan was trying to sell to support
his cocaine habit. Later that afternoon, Karl Bradley and his wife Sarah Bradley drove to Sullivan's
Simpson County house. Sarah Bradley testified Karl did not keep much amphetamine in their apartment.
Sarah testified that Karl said he needed to pick up amphetamine for, Reeves, and that he was paying for the
amphetamine at least partially with cocaine. She stated that she and Karl drove to Sullivan's house, where
Sullivan was sitting in his truck. She watched Karl get out of the truck and get into Sullivan's truck. Karl
then came back and got in his truck with Sarah and told her he had to pick up the newspaper lying on the
side of the road. Karl went to pick up the newspaper and returned to the truck. Inside the newspaper there
was a sandwich bag containing a pasty substance.
¶4. Later that evening Bradley paged Reeves, and she came to his apartment in Hattiesburg. She gave him
$3,800.00 ($3,900 for the June 13 purchase), and he gave her a sandwich bag containing two ounces of a
brown, pasty substance. Reeves handed the bag to another MBN agent, who sent the bag to the
Mississippi Crime Laboratory. Both lab experts who tested the substances purchased by Reeves from
Bradley testified that the bags contained amphetamine.
DISCUSSION
I. DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF SARAH
BRADLEY, SIMONE REEVES, AND SIMPSON COUNTY DEPUTY RANDY
CRAWFORD, AND IN DETERMINING THAT THE JURY SHOULD DECIDE
WHETHER CERTAIN STATEMENTS MADE BY KARLTON BRADLEY WERE IN
FURTHERANCE OF THE CONSPIRACY?(1)
¶5. The rule prohibiting the admission of hearsay testimony into evidence at trial makes an exception for
conspiracy situations; a statement is not hearsay if it is made by a co-conspirator and the statement is made
during the course and in furtherance of a the conspiracy. See M.R.E. 801(d)(2)(E). This Court has clearly
followed this rule of evidence. See Ponthieux v. State, 532 So. 2d 1239 (Miss. 1988); Nixon v. State,
533 So. 2d 1078 (Miss. 1987). However, before the statement of an alleged co-conspirator can be
admitted as evidence, the trial court must determine that there is preliminary evidence of a conspiracy. See
Tavares v. State, 725 So. 2d 803, 809 (Miss. 1998) (citing Ponthieux, 532 So. 2d at 1243-44). The
appellate court's freedom to review a trial court's finding-that a conspiracy has reasonably been established
by the evidence presented prior to the testimony at issue-is restricted to a "clearly erroneous" standard of
review. Tavares, 725 So. 2d at 809. Also, the appellate court looks at the entire record when determining
whether a conspiracy had been established. See id. (citing Ponthieux, 532 So. 2d at 1243-44).
¶6. Sullivan's sole argument is that the testimony of Sarah Bradley and Simone Reeves is inadmissible. He
claims that their testimony is hearsay because the State failed to obtain a ruling by the trial court judge that
there was sufficient evidence of a conspiracy. However, Sullivan ignores the language in a case that he
himself cites. According to Nixon v. State, "This Court rejects the notion of the defendant that the trial
court has to specifically make such a finding in the record." 533 So. 2d at 1092. There is no need for the
trial court to make a finding that a conspiracy existed before admitting such testimony. Additionally, this
Court has the freedom to look at the entire record. In doing so, we can see that in the case of Sarah
Bradley, four witnesses had already offered their testimony regarding Karlton Bradley's phone records, the
content of relevant phone conversations, and the exchange between Bradley and Reeves.
¶7. The testimony of Simone Reeves included conversations she had with Karlton Bradley and the drug
purchases she made from him. Because Bradley's drug sales are evidence of the suspected conspiracy, and
Reeves's testimony went directly toward establishment of that conspiracy, a review of the entire record
suggests that the admission of Reeves's testimony was well-founded. It is also the case that Reeves's
testimony pertained to her relationship with Karlton Bradley, not to incidents about which she did not have
firsthand knowledge.
¶8. Sullivan alleges that the testimony of Deputy Randy Crawford contained inadmissible hearsay because
"Deputy Crawford was allowed to testify as to a statement made by Ken Ritchie regarding which vehicle he
requested Deputy Crawford to surveil [sic]." However, Sullivan fails to address the fact that the statements
Crawford repeated were statements that Ritchie made to him when giving him instructions.
¶9. Sullivan also objects to the trial court's characterization of the ruling regarding evidence of a conspiracy
as a question of fact for the jury. The exchange occurred as follows:
Mr. Klein [attorney for Sullivan]: Your Honor, you let the jury decide what's hearsay?
The Court: No. I'm going to let the jury decide whether it was in furtherance of the conspiracy.
Given that there was no procedural error on the part of the trial court-that is, he did not fail to make a ruling
on the sufficiency of the evidence, because none was appropriate-and that it is reasonable for this Court to
hold that there was sufficient evidence of a conspiracy, the judge's statement that existence of a conspiracy
was a question of fact for the jury can be interpreted to mean that the jury had the freedom to come to its
own conclusions regarding the sufficiency of the evidence of the conspiracy. His language, although not
necessarily correct as a term of art, constitutes harmless error. This issue is without merit.
II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE'S EXHIBITS OF
CONTROLLED SUBSTANCES TO BE INTRODUCED?
¶10. The procedure to establish the admissibility of evidence at trial is set out in Mississippi Rules of
Evidence 104; the rules of evidence grant much deference to the trial court judge to make preliminary
rulings on issues of admissibility. See M.R.E. 104. The case law most closely on point is Barnette v. State,
478 So. 2d 800 (Miss. 1985). In Barnette the defendant alleged that the chain of custody of a controlled
substance was not clearly proven, and therefore testimony from the Mississippi Crime Lab should not have
ben admitted. See id. at 804. In that case this Court restated the clearly established law: the foremost
question is whether there is a "reasonable inference of probable tampering" with the evidence prior to its
admission against the defendant. Id. at 804 (quoting Lambert v. State, 462 So. 2d 308, 312 (Miss. 1984)
; Grady v. State, 274 So. 2d 141, 143 (Miss. 1973)). Additionally, "the presumption of regularity
supports the official acts of public officers." Barnette, 478 So. 2d at 804 (quoting Nix v. State, 276 So.
2d 652, 653 (Miss. 1973)). In cases in which there is no evidence of tampering reflected in the record, the
appellate court will not assume that the appeal has merit. See id. at 804.
¶11. Sullivan alleges that crystal methamphetamine was improperly admitted into evidence because of the
circumstantial nature of the substance's transport from Karlton Bradley to the Mississippi Crime Lab.
Sullivan goes so far as to suggest that "there is a reasonable inference that Karlton Bradley substituted the
evidence." However, Sullivan can produce no evidence, from the record or otherwise, that any tampering
took place. Each person through whose hands the evidence passed was called to testify during the trial, and
each accounted for his or her time in possession of the evidence without contradiction from the defense.
There are no grounds within the record to suggest tampering, and as a result this issue is without merit.
III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER
ALLOWING THE TESTIMONY OF AGENT SHELBOURN REGARDING THE
GUILTY PLEAS AND GUILTY VERDICTS OF CO-DEFENDANTS?
¶12. Generally, when defense counsel does not object to a statement by a prosecutor made during the
course of trial, the defendant is procedurally barred from raising the prejudicial nature of the statement as
grounds for appeal. See, e.g., Blue v. State, 674 So. 2d 1184, 1191 (Miss. 1996) (citing Foster v.
State, 639 So. 2d 1263, 1270 (Miss. 1994)). An objection on constitutional grounds must be raised at
trial to be considered on appeal. Fleming v. State, 604 So. 2d 280, 292 (Miss. 1992). One exception to
this rule is that a statement not objected to at trial may be looked at by the appellate court if the statement
fundamentally prevented the defendant from receiving a fair trial. See Johns v. State, 592 So. 2d 86, 91
(Miss. 1992). For example, if a testifying co-defendant reveals to the jury that he or she has already been
convicted for the same crime as the defendant, there is a presumption that the jury is influenced toward
finding the defendant guilty; this denies the defendant a fundamentally fair trial. See id. This rule is limited to
information regarding a co-defendant or co-conspirator's convictions, as the intent is to prevent the jury
from relying on another's jury's findings of fact. However, a trial judge may alleviate the potential damage of
such kinds of testimony by addressing the statement with the jury. See Hoops v. State, 681 So. 2d 521,
528 (Miss. 1996). This Court has held that the trial court's instruction to the jury to disregard such
testimony is sufficient to prevent prejudice. See Baine v. State, 604 So. 2d 249, 257 (Miss. 1992);
Dennis v. State, 555 So. 2d 679, 682-83 (Miss. 1989). The decision to grant a mistrial because of
potentially damaging statements is left to the discretion of the trial judge, and the trial judge must grant a
mistrial if he believes that certain testimony is so damaging that his instructions to the jury could not
adequately temper the testimony's effects. See Hoops, 681 So. 2d at 528.
¶13. Sullivan alleges that the testimony of Mississippi Bureau of Narcotics Agent Tony Shelbourn
prejudiced the jury because of his statements made regarding Sullivan's co-defendants. The statements in
question occurred as follows (Shelbourn is responding to the prosecutor):
Q. And why was it a successful investigation?
A. Well, we did our job, sir. We took a lot of drugs off the street, put a lot of people in jail, a lot of
people pled guilty and other people have been found guilty, sir. Drugs-
Q. Were you about to-I apologize.
A. In addition, we were able to identify Karlton Bradley's source of cocaine and put him in prison,
identify his source of LSD and get a conviction on him; we identified his source of amphetamine, and
we're in trial on that, so we took out the retail side of the house as well as the wholesale side of the
house, sir".
¶14. Sullivan does not address the procedural bar that exists because defense counsel failed to object to the
either the question or the answer. Unfortunately, for Sullivan the rule is that a failure to object bars Sullivan
from raising the issue on appeal. Defense counsel did not act until a jury break, at which time he asked the
court to grant a mistrial in light of the information. The court refused to grant a mistrial, informed the defense
counsel that he would have recognized an objection if one had been made, and offered to instruct the jury
to disregard the statement. The defense refused the instruction, claiming that it would draw attention to the
guilty verdicts. Given Sullivan's failure to object and his refusal to accept a jury instruction, he cannot argue
that the court did not recognize the his right to object to the statement. However, Sullivan does not allege
that the statement prevented him from receiving a fundamentally fair trial, and the magnitude of the potential
harmfulness of the statement was not so great that it was clearly detrimental to the impartiality of the jury.
Therefore, this issue is without merit.
IV. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER
THE ASSISTANT DISTRICT ATTORNEY CALLED THE DEFENDANT A "DANGER
TO SOCIETY"?
¶15. Sullivan alleges that Assistant District Attorney Robert Helfrich prejudiced the jury against him when he
referred to him as a "danger to society." As discussed in the previous issue, the trial court has discretion in
determining whether the inflammatory or prejudicial nature of the prosecutor's statement is significant
enough to warrant granting the defendant's motion for a mistrial. See Hoops, 681 So. 2d at 528. Sullivan
relies on two cases addressing the issue of prosecutorial discretion; however, neither of these cases are
very similar in fact to the situation in the case at bar. First, Sullivan cites Griffin v. State, 557 So. 2d 542
(Miss. 1990), in which this Court concluded that the prosecutor's "name-calling, gratuitous insult and
unnecessary inflammatory comment, repeated expressions of outrage. . ." prevented the jury from rendering
an unbiased decision. In Griffin, this Court emphasized the cumulative effect of several improper acts and
very clearly viewed the incidents in the aggregate. See id. at 553. The other case on which Sullivan relies is
Ruttley v. State(2), in which the prosecutor brought the victim's severed hands in a jar into the courtroom.
No. 97-KA-000783-COA 1998, WL 881793 (Miss. Ct. App. December 18, 1998). The alleged
prosecutorial misconduct in this case is not nearly as severe as that in Ruttley, and the evaluation of
prejudice is a question of severity. See Hoops, 681 So. 2d at 528.
¶16. There is no precedent supporting the Sullivan's claim that a single inappropriate statement by the
prosecutor is grounds for a new trial. The defense attorney objected to the statement-"you're a danger to
society"-and the judge sustained the objection and instructed the jury to disregard the statement. The trial
court followed the accepted procedure for addressing such a statement with the jury. See Hoops, 681 So.
2d at 528. This issue is without merit.
V. DID THE TRIAL COURT ERR IN ALLOWING RE-CROSS EXAMINATION OF
THE DEFENDANT, WHEN THE DEFENDANT ARGUES THAT THE QUESTIONS
WERE OUTSIDE THE SCOPE OF THE RE-DIRECT QUESTIONING?
¶17. Mississippi has adopted the Corpus Juris Secundum standard for re-cross examination of witnesses:
"It is proper to exclude questions as to matters which were not opened up or brought out on redirect
examination, or as to matters already fully covered or discussed at length on cross-examination, where there
is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination
proper." Hubbard v. State, 437 So. 2d 430, 434 (Miss. 1983) (quoting 98 C.J.S. Witnesses § 429). In
this case, Sullivan does not allege that he was deprived of his constitutional right to confront witnesses
testifying against him. That right is protected by both constitutional and case law. See Shaffer v. State, 740
So. 2d 273 (Miss. 1998) (citing Hamburg v. State, 248 So. 2d 430, 434 (Miss. 1971). Here, Sullivan
alleges only that the trial court's error in allowing re-cross examination that was too broad led directly to the
District Attorney's error calling the Sullivan a "danger to society."
¶18. During redirect questioning the defense counsel asked Sullivan if he knew "whether or not the State of
Mississippi tried to revoke that bond." During re-cross examination the prosecutor asked Sullivan, "The
motion to revoke your bond, you know why we filed that, don't you?" Both questions pertained to the same
action by the State. Sullivan cannot reasonably allege that the question asked during re-cross examination
was not related to the dialogue of the re-direct questioning. This issue is also without merit.
VI. DID THE TRIAL COURT ERR IN REFUSING TO GRANT CIRCUMSTANTIAL
EVIDENCE INSTRUCTIONS PROPOSED BY THE DEFENDANT?
¶19. At the objection of the district attorney, the trial court altered Sullivan's suggested Jury Instructions D-
3, D-4, D-5, D-10, D-11, and D-12, by removing all circumstantial evidence language. Specifically, four of
the instructions made reference to the State proving beyond a reasonable doubt "and to the exclusion of
every reasonable hypothesis consistent with innocence," and the court struck that phrase in each of the
instructions. One other instruction used the same phrase when defining the duty to find Sullivan not guilty,
and the final refused instruction contained that same phraseology two additional times.
¶20. The well-established rule of this Court is that when the collection of admitted evidence is either direct
evidence, or a combination of both direct and circumstantial evidence, circumstantial evidence jury
instructions are not necessary. See Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss. 1992); King v.
State, 580 So. 2d 1182, 1191 (Miss. 1991). The evidence must be wholly circumstantial to warrant a
circumstantial evidence instruction. See Windham v. State, 602 So. 2d 798, 800 (Miss. 1992).
¶21. It is possible to view the facts of this case as a mixture of direct and circumstantial evidence. There is
direct evidence contained in Sarah Bradley's testimony. She went with Karlton Bradley to Simpson County,
she discussed with Karlton the purpose of those trips, she watched Karlton meet with Sullivan and pick up
the newspaper containing the amphetamine. Simone Reeves testified about her relationship with Karlton
Bradley and the fact that he obtained amphetamine for her. Even Sullivan acknowledges that he was
involved in drug activity with Karlton Bradley, and there are audio tapes confirming that their relationship
existed and that they exchanged drugs. The existence of any direct evidence eliminates the need for a
circumstantial evidence instruction. Thus, this issue is likewise without merit.
VII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S
PROPOSED JURY INSTRUCTION D-14?
¶22. Next, Sullivan alleges that the trial court erred in refusing to grant Jury Instruction D-14, a hearsay
instruction telling the jury to disregard the testimony of Sarah Bradley. Sullivan cites as his authority Melton
v. State, 723 So. 2d 1156 (Miss. 1998), in which a hearsay instruction was given to the jury. However,
this issue is closely related to those hearsay issues already discussed. In Melton the trial judge determined
that the testimony in question was hearsay and, because of that, ruled that hearsay instructions were
necessary so that the jury would not be impacted by the hearsay testimony. Melton, 723 So. 2d at 1161.
¶23. In this case, the trial court had already heard Sullivan's motion for a new trial on the basis of the
hearsay testimony and had already ruled that the testimony fell within the co-conspirator exception to the
hearsay rule. Therefore, it is obvious that he would not give a hearsay instruction to the jury. This issue is
likewise without merit.
VIII. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S
MOTION FOR A NEW TRIAL AND MOTIONS FOR A DIRECTED VERDICT,
JUDGMENT NOTWITHSTANDING THE VERDICT, AND JURY INSTRUCTION D-7?
¶24. The standard of review is the same for both directed verdicts and judgments notwithstanding the
verdict. Gleeton v. State, 716 So. 2d 1083, 1087 (Miss. 1998). This Court has set forth the standard as
follows:
Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the
defendant be discharged short of a conclusion on our part that given the evidence, taken in the light
most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt
that the defendant was guilty.
Ashford v. State, 583 So. 2d 1279, 1281 (Miss. 1991).
¶25. The motion for a new trial, however, is a different animal. May v. State, 460 So. 2d 778, 781 (Miss.
1984). As distinguished from a motion for directed verdict or a motion for judgment notwithstanding the
verdict, a motion for a new trial asks that the jury's guilty verdict be vacated on grounds related to the
weight, not sufficiency, of evidence. Id. "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." Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). Furthermore, "the
Supreme Court will reverse the lower court's denial of a motion for new trial only if, by denying, the court
abused its discretion." Gleeton at 1088.
¶26. We find that the trial court correctly denied Sullivan's motion for directed verdict, motion for judgment
notwithstanding the verdict, and motion for new trial. Regarding the motions for directed verdict and
judgment notwithstanding the verdict, it can hardly be said that no reasonable, hypothetical juror could find
beyond a reasonable doubt that Sullivan is guilty. In fact, not only could a reasonable juror find beyond a
reasonable doubt that Sullivan is guilty, the ample evidence in support of Sullivan's conviction demands that
we affirm the trial court's denials of Sullivan's motion for new trial as well.
¶27. Sullivan argues that the State failed to prove that he sold amphetamine to Simone Reeves. Sullivan
relies only on the fact that Simone Reeves testified that she did not purchase amphetamine directly from
Sullivan and that she did not know him. Sullivan's argument is misplaced. First, the State is not required to
prove that the seller of a controlled substance personally placed the substance in the hands of the buyer or
even knew the buyer prior to the sale. Sullivan was charged with the sale of a controlled substance in
violation of Miss. Code Ann. § 41-29-139(a)(1) (Supp. 1993), which requires that the State prove only
that Sullivan knowingly or intentionally transferred a controlled substance. The jury was instructed, and
properly so, that a person who consents to the commission of a crime and knowingly does an act which
aids, assists or encourages that crime, or does any act which leads to its commission, is tried as a principal.
Berry v. State, 728 So. 2d 568, 570 (Miss. 1999). The jury was instructed that if it found that Karlton
Bradley sold amphetamine to Simone Reeves and that Sullivan did any act which led to or assisted in that
sale of amphetamine to Simone Reeves, then Sullivan is guilty of the sale of amphetamine. (Instruction S-4).
¶28. Second, there is ample evidence in the record to support the jury's conclusion that Karlton Bradley
did, in fact, sell amphetamine to Simone Reeves and that Sullivan knowingly assisted in that crime. Simone
Reeves, an undercover agent for the Mississippi Bureau of Narcotics, testified that she spoke with Karlton
Bradley on both May 29, 1996, and June 13, 1996, about the possibility of purchasing two ounces of
crystal methamphetamine. The State introduced telephone conversations between Karlton Bradley and
Sullivan, obtained by the State pursuant to a court-ordered wire tap. The telephone conversations occurred
on May 29, 1996, and June 13, 1996. The conversation of May 29, 1996, introduced as exhibit 3(b)(1),
took place at 3:46 p.m. In that conversation, Karlton Bradley stated, "Well, I just talked to somebody that
said, uh, they wanted two of those." Sullivan replied, "Oh, when." Bradley said, "I'm thinking today. I just
paged them. When they page me back, I'll let you know." Simone Reeves testified that she received a page
from Karlton Bradley at 3:48 p.m. In conversation of June 13, 1996, introduced as exhibit 5(b)(1), Karlton
Bradley stated, ". . . if I need to come see you anyway, uh, uh, to pick up, uh, those, uh, two units I picked
up. . . ."
¶29. Tony Shelbourn, a former agent with the Bureau of Narcotics who worked on the case, testified that
he interpreted the phrases "two of those" and "two units" to be references to the two ounces of
methamphetamine Simone Reeves requested and ultimately purchased from Karlton Bradley. Sarah
Bradley, wife of Karlton Bradley, testified that the telephone conversations dealt with drug transactions and
that the transactions discussed occurred on May 29, 1996, and June 13, 1996. Sullivan gave a differing
interpretation of the statements made during the course of the conversations. It is certainly within the
province of the trier of fact to weigh the credibility of the witnesses and to accept some testimony while
rejecting other testimony. McFadden v. Mississippi State Bd. of Medical Licensure, 735 So. 2d 145,
152 (Miss.1999). This Court will not substitute its judgment for that of the fact finder as to credibility issues.
Id.
¶30. Highly supportive of the jury's verdict is the testimony of Sarah Bradley. She testified that Karlton
Bradley told her he was going to purchase methamphetamine from Thomas Sullivan for Simone Reeves.
Sarah Bradley stated that on May 29, 1996, she and her husband drove close to Sullivan's house and that
Karlton Bradley got out of their car and into Sullivan's truck with Sullivan. She stated that when her husband
came back to the car, he told her there was a newspaper on the side of the road that had crystal
methamphetamine wrapped inside. Sarah Bradley testified that the couple stopped on the side of the road
and retrieved the newspaper. She stated that this spot was only three feet from Sullivan's truck. Simone
Reeves testified that she purchased the methamphetamine at the Bradley's home that evening.
¶31. Sarah Bradley testified that the same scenario occurred on June 13, 1996, and that, as they were
driving off from the exchange, a police officer pulled Sullivan over. Officer Randy Crawford with the
Simpson County Sheriff's Department identified Sullivan in court as the man he had pulled over on June 13,
1996. Simone Reeves testified that she purchased the methamphetamine from Karlton Bradley at his home
on the evening of June 13, 1996.
¶32. Based upon this evidence, we decline to reverse the trial court's denial of Sullivan's motions for
directed verdict, for judgment notwithstanding the verdict and for a new trial. There was ample evidence
upon which the jury could reasonably base its guilty verdict. Based upon the same rationale, we refuse to
hold that the trial court erred in denying instruction D-7 under which the court would have instructed the
jury to find that Sullivan is not guilty of the sale of amphetamine.
IX. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY TO CONTINUE ITS
DELIBERATIONS WHEN ONE JUROR STATED THAT THE JURORS WERE
"HOPELESSLY DEADLOCKED"?
¶33. Sullivan's first claim arises from the trial court's duty to submit jury instructions to the attorneys of both
parties so that the attorney may object to the instructions before they are given. See Edlin v. State, 523
So. 2d 42, 44 (Miss. 1988). In Edlin, the attorneys did not have an opportunity to object to the trial
judge's instruction to the jury to continue its deliberations; this instruction from the trial judge came after the
jury had heard the bailiff make a comment to hurry them to a faster verdict. See id. At the same time,
Edlin also affirms the validity of the Sharplin instruction, which is Sullivan's primary objection on this
issue. Sharplin allows a trial court judge to continue the jury's deliberations if he or she feels there is a
reasonable possibility that the jurors will reach an agreement. See Sharplin v. State, 330 So. 2d 591, 596
(Miss. 1976).
¶34. Sullivan alleges that the trial court erred in sending the jurors to continue deliberating the conspiracy
charge when the jury foreman said that they were deadlocked. However, the record indicates that two
other jurors shook their heads in disagreement with jury foreman's perception of the progress of the
deliberations. Additionally, after hearing from the jury foreman, the trial court judge sent the jurors in for
fifteen additional minutes of deliberations, at which time they returned with a verdict. The trial court placed
no pressure on the jury to return a verdict; he sent them to deliberate for fifteen more minutes. When he
asked them to continue deliberations, he gave them a Sharplin instruction, telling them "to deliberate in
view of reaching agreement, if you can do so, without violence to your individual judgment. . . do not
surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of
your fellow jurors or for the mere purpose of returning a verdict." The instruction the court gave to the
jurors was a proper one which resulted in a verdict being reached by the jury. This issue is without merit.
X. WAS THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS
PREJUDICIAL TO THE DEFENDANT?
¶35. Sullivan does not raise a legitimate claim for review under this issue in his brief. The brief merely
summarizes the issues raised in the preceding arguments and claims that viewing them in the aggregate
produces a clearly unjust result against the him. He cites no authority in his brief to validate his suggestion
that, even though each of the claims alone might not indicate reversible error, the sum total does create that
error. This issue is without merit.
XI. DID THE TRIAL COURT ERR IN IMPOSING A SENTENCE THAT WAS
DISPROPORTIONATE TO THE CRIME ITSELF AND TO THE SENTENCES OF
SIMILARLY SITUATED DEFENDANTS?
¶36. Generally, sentencing is within the discretion of the trial court and is not subject to appellate review.
See Hoops v. State, 681 So. 2d 521, 537-38 (citing Reynolds v. State, 585 So. 2d 753, 756 (Miss.
1991)). When this Court does perform a proportionality review, it follows the guidelines set out by the U.S.
Supreme Court. See Gibson v. State, 731 So. 2d 1087, 1097 (Miss. 1998) (citing Solem v. Helm, 463
U.S. 277, 292 (1983)). The first factor to be taken into consideration is "gravity of the offense and
harshness of the penalty." Gibson, 731 So. 2d at 1097. One means of evaluating the severity of the
sentence is to consider it in relation to the maximum penalty for the same crime that is set out by statute; this
Court will generally not grant a proportionality review for a sentence that is within the bounds established by
the legislature. See id. Sullivan argues that comparing the sentence he received with that of Karlton Bradley
shows that he was penalized for exercising his right to trial by jury. However, Sullivan relies on a case in
which "the circuit judge may have had an excellent reason for McGilvery's sentence which had not been
articulated." McGilvery v. State, 497 So. 2d 67 (Miss. 1986).
¶37. In this case the trial court judge made his intent known and stated on the record his reasons for
imposing a heavy sentence on Sullivan:
The defendant is not being penalized for going to trial, Mr. Klein. The Court is very aware that Mr.
Sullivan, after being charged in this case, absented himself from the jurisdiction of the Court for some
months. Also the Court is very aware of the fact that after he was apprehended, he made bond two
days later in the amount of $150,000. . . . The Court is well aware of the fact that he absented himself
and was finally apprehended in Memphis, Tennessee almost a year later, and at the time he was
apprehended in the state of Tennessee, instead of submitting to arrest, he attempted to escape them
and hurt himself jumping over a fence and falling about 15 feet on the concrete. I'm also aware that at
the time he was apprehended in Memphis, he had in his possession amphetamine, and he specifically
testified in Court that he did not use amphetamine, that he used cocaine, so that leads to only one
conclusion in the Court's min, and I don't think that the sentence that the Court has placed upon him is
in any way unfair, considering all the facts in this case. The motion will be overruled.
The trial court states that, if this punishment is harsh, it is because it is linked to his past behavior, not to his
decision to ask for a jury trial. Therefore, Sullivan is not being penalized for exercising his constitutional right
to a jury trial.
CONCLUSION
¶38. For the reasons set out above, Sullivan's conviction and sentence are affirmed.
¶39. COUNT I: CONVICTION OF CONSPIRACY AND SENTENCE OF TEN (10) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A
FINE IN THE AMOUNT OF $25,000 AFFIRMED. COUNT II: CONVICTION OF SALE OF
AMPHETAMINE AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE IN THE AMOUNT OF
$25,000 AND COURT COSTS AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONSECUTIVE WITH THE SENTENCE IN COUNT I.
PRATHER, C.J., SULLIVAN, P.J., BANKS, MILLS, WALLER AND
COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
PITTMAN, P.J., NOT PARTICIPATING.
1. Sullivan's issues I, II, III, and IV are contained with Issue I of this opinion.
2. Sullivan erroneously cites to Ruttley. The correct cite for this issue is Hickson v. State, 472 So. 2d
379 (Miss. 1985).