Petition for Writ of Certiorari — Tenner v. Mississippi

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UrFIGe OF THe SES, |

In The

Supreme Court of the United States

MICHAEL TENNER,

Petitioner,

STATE OF MISSISSIPPI,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Mississippi

e

PETITION FOR WRIT OF CERTIORARI

T. JACKSON Lyons

Standard Life Building

206 West Pearl Street, Suite 711

Jackson, Mississippi 39201

Tel. (601) 352-0330

Fax (601) 969-1402

MSB #8988

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Does a criminal defendant have a right, under the

Confrontation Clause, to cross-examine the State’s

informant, and only eyewitness, about whether the

informant had committed prior uncharged acts to

show the witness had a motive to give testimony

favoring the prosecution?

Were the Petitioner’s rights to due process and con-

froniation violated when the Mississippi Court of

Appeals relied on a hearsay confession in affirming

the jury’s verdict where the hearsay confession came

out at a post-trial hearing?

PARTIES

All parties appear in the caption. Petitioner will be

referred to by his name, “Tenner”; Respondent will be

referred to as “the State.”

"a

QUESTIONS PRESENTED FOR REVIEW

PARTIES

I.

II.

TABLE OF CONTENTS

'@eooe en eeeen @

PFE STP eC eC SPC eReePe eee eee eseeene ee enseencée

Teese e eo eee eC eee eoewue seer eeeees

SPV CVV Se CPeweenveeeee ses 0 6 6 & & &

cPISCoC Ve Seseeerwvwes OP eee ae ese eae a

PVE ve seeeC SCV ee CeCe PSCC OBR Bet eaeee eo aee

*eegeesuecevespeoecten eee

VST Pescercvretr ere ae eesn eee

STATE COURTS OF FINAL RESORT HAVE

ADOPTED STANDARDS CONELICTING

AMONG THE SEVERAL STATES AND CON-

FLICTING WITH UNITED STATES COURTS OF

APPEALS ON WHETHER A DEFENDANT HAS

A SIXTH AMENDMENT RIGHT TO QUESTION

A KEY WITNESS ABOUT THAT WITNESS’

PRIOR UNCHARGED ACTS IN ORDER TO

SHOW A MOTIVE TO TESTIFY FAVORABLY

FOR THE PROSECUTION .....................

TENNER’S RIGHTS TO DUE PROCESS AND

CONFRONTATION WERE VIOLATED BY THE

MISSISSIPPI COURT OF APPEALS’ AFFIRMING

THE CONVICTION ON THE BASIS OF A

HEARSAY CONFESSION THE JURY NEVER

TT 60a Wie dua 55064 voncs io coeeacevcewes

TABLE OF AUTHORITIES

Page

CasEs

Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75

eS f:. o eerreeeerres 13, 14, 15, 16, 21

Bounds v. State, 688 So.2d 1362 (Miss. 1997)......... 24

Bourjaily v. United States, 483 U.S. 171, 107 S.Ct.

BET Dy SE en DOE CEs ch nbienceceseecdeseecen 26

Brown v. Powell, 975 F.2d 1 (1st Cir. 1992)............ 9

Brown v. State, 74 Md.App. 414, 538 A.2d 317

SED v6dkvranbeanenh sab wewenaalepeersesteanyeniaee 9

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

De Eee Se CE eds dc kee kascdueeasssseceres 26

Burrell v. State, 727 So.2d 761 (Miss.App. 1998)...... 24

California v. Green, 399 U.S. 149, 90 S.Ct. 1930

Se os Suid a doce cae e eee ibaa eeae sa eeeeen 26, 27

Carrillo v. Perkins, 723 F.2d 1165 (5th Cir. 1984)...... 10

Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.

PO 64506ds cob besnndcekeaeeeeicessaeaaeeseee 10

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038,

ee Ge Ge ecb vice bok oeeeberkeskees 12, 29

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967)........ LEEwe eu Rieeasaeeewckies 17

Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101

Eee We CS 60 sb dae tacbecdcddunckseneets 12, 13

Danner v. Kentucky, 119 S.Ct. 529 (1998)............. 11

Ps eee .

Vv

TABLE OF AUTHORITIES - Continued

Page

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39

MO CUNO i cn beks be cncaredeandeses 15, 16, 20

Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986)......... 16, 17, 18, 19, 20

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13

Se WHE CA 5:45 bode boeceearss euuneee 26, 27

Ford v. United States, 549 A.2d 1124 (D.C.App.

nn ET EE OEE T Pee Pete ee Tee OPS a 9

Gray v. Maryland, 118 S.Ct. 1151 (1998).............. 26

Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3

SGD BOF GEUIIR 05.66 55400c0c0decsédhes beeeeice 29

Hansford v. State, 490 N.E.2d 1083 (Ind. | eee 9

Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111

Fee GP CHOOUDs 6 ch sb ssscdccevaccutneneel ek 26, 28

In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed.2d ‘i

Gee Ce 6655s care ee er saskiodeeeeee 29

Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90

See WN COMI sos cvneccreveleevadetel cin 26, 27

Lilly v. Virginia, 119 S.Ct. 1887 (1999) 11, 20, 25, 26, 28

Lindh v. Murphy, 117 S.Ct. 2059 (1997)............... 10

Manning v. State, 726 So.2d 1153 (Miss. 1998)......... 9

Martinez v. State, 904 P.2d 138 (Ok.Crim.App.

i TEER TTT ee CORT TT Te rep re ee 9

Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337,

ee SS fF: eae eee 25, 26

vi

TABLE OF AUTHORITIES - Continued

Page

Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44

St, REED LEED v0 vcccsactvacesdedeeseseeereueaes 26

Nichols v. United States, 511 U.S. 738, 114 S.Ct.

i re RF BF Re prerrrrrrerrerr se 10

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65

mS 8 og: | rr Ae 26

Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102

Sh § «k,n re 16, 18, 19, 20

People v. Allen, 67 A.D.2d 558, 416 N.Y.S.2d 49

(1979), aff'd 50 N.Y.2d 898, 430 N.Y.S.2d 588, 408

kA Eas rr ae ee )

People v. Clark, 63 Cal.2d 503, 47 Cal.Rptr. 382, 407

Pee BO EEG 6s 66 cacenccsdvaseuesbeieiser ewe 9

People v. Jones, 635 P.2d 907 (Colo.App. 1981), aff'd

en banc 675 F.2d 9 (Golo. 1966) .. cn csccccscescsecss 9

People v. O'Dell, 84 Ill.App.3d 359, 39 Ill.Dec. 830,

Se FEO GEO CIGGE 6060500605 0s esas eeeneee et 9

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13

Cee GS CIDER). 2.0.0 ccc vessecneedeseeeneeseuen 1, 26

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 100

S.Ct. 2UGS, G6 LL.B. FEE CIGGOD. os ccc cveseccsesss 23

Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702,

SD LDR TFG CRMs ccc ccvccvéiavdsckassvec‘uises 26

Rincher v. State, 632 So.2d 37 (Ala.Crim.App.

1993), cert. den. 632 So.2d 41 (Ala. 1994)........... 8

Saunders v. Shaw, 244 U.S. 317, 37 S.Ct. 638 (1917) .... 23

t

;

oe A a

Vil

TABLE OF AUTHORITIES - Continued

Page

Smith v. State, 656 So.2d 95 (Miss. 1995)............. 24

State v. Benn, 120 Wash.2d 631, 845 P.2d 289 (1993) ..... 9

State v. Brandon, 264 Mont. 231, 870 P.2d 734 (1994) ..... 9

State v. Cormier, 535 A.2d 913 (Me. 1987)............. 4

State v. Little, 87 Ariz. 296, 350 P.2d 756 (1960)...... 20

State v. Moye, 214 Conn. 89, 570 A.2d 209 (1990)..... 9

State v. Overby, 497 N.W.2d 408 (N.D. 1993).......... 9

State v. Rodriguez, 262 N.J.Super. 564, 621 A.2d 532

GUNOU A oo. 0n¥s Ceti sheer nniecsseres eentelek, 9, 10, 20

State v. Shabata, 678 P.2d 785 (Ut. 1984) .............. Y

State v. Torres, 97 Ariz. 364, 400 P.2d 843 (1965)....8, 9

State v. Wilson, 311 N.C. 117, 316 S.E.2d 46 (1984) ..... 9

State v. Zwillman, 112 N.J.Super. 6, 270 A.2d 284

(1970), certif. den. 57 N.J. 603, 274 A.2d 56 (1971) ..... 9

Suan v. State, 511 So.2d 144 (Miss. 1987) ............. 9

Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85

ee Cr I yb darn d vanunuedeweedcdcneaicaks 26

The Schooner Hoppet v. United States, 7 Cranch 389

SE as 6 ht 95 0k5s ROR aye bia ae Te Oe 29, 30

United States v. Brooke, 4 F.3d 1480 (9th Cir. 1993)..... 9

United States v. Christian, 786 F.2d 203 (6th Cir.

Saxe worsen ud ak ene se euead ok Con baeniiekcucmeds )

Vill

TABLE OF AUTHORITIES —- Continued

Page

United States v. Croucher, 532 F.2d 1042 (5th Cir.

OTE PT TTT TT TT TSEC TTT TET Tee Trey 9

United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121,

pe + @ f.. PPPPPrrTerTT errr errr rte re 26

White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116

Se EE Ec nence ti narsssee shew erweewese ne 26

Whitton v. State, 479 P.2d 302 (AK 1970).............. 8

Williamson v. United States, 512 U.S. 594, 114 S.Ct.

AS, TZ U.BG.2G GIG (EGFE) oc vc ccesevcsvcvcess 27, 28

OTHER AUTHORITIES:

ep Sn Ge I ee co oe uvaen cela veenuycsebereeseewess 1

Annotation, Right to impeach witness in criminal

case by inquiry or evidence as to witness’ criminal

activity not having resulted in arrest or charge, 24

Pee He GPE she Se eicesecertecvacverseeasss 9

en PINS Sint vo.cs cou coe vedriskedewes tons passim

FOUSICORIR AMIORGINORE .. 22sec ce cccccevescesces passim

Haglund, Impeaching the Underworld Informant, 63

ny EE BIG doses e ns cerec eee dense ecxuee 11

rr 2

I I ar a No a 23, 24

Ne i a ee a ls Ge 23

Zimmerman, Toward a New Vision of Informants: A

History of Abuses and Suggestions for Reform, 22

rrr reer errr errr 11

1

CITATION TO OPINION

The Court of Appeals of Mississippi ordered that its

opinion not be published. The style of the case was Tenner

v. State, No. 96-KA-00930-COA (September 29, 1998). The

opinion is reproduced in the Appendix. The Court of

Appeals’ order denying rehearing and the Supreme Court

of Mississippi’s order denying the petition for a writ of

certiorari are also reproduced there.

JURISDICTION

The Court has jurisdiction of the case pursuant to 28

U.S.C. § 1257, as amended. This case was assigned by the

Supreme Court of Mississippi to the Mississippi Court of

Appeals on January 26, 1998. That Court handed down its

decision on September 29, 1998. Tenner’s request for

rehearing was denied on February 9, 1999. The Supreme

Court of Mississippi declined review on May 13, 1999.

The Petition is timely filed on or before August 11, 1999.

CONSTITUTIONAL PROVISIONS

The Sixth Amendment states: “In all criminal pros-

ecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” The confron-

tation clause was applied to the States in Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1968).

The Fourteenth Amendment provides that no state

“... Shall... deprive any person of life, liberty, or

property, without due process of law... .

af

2

STATEMENT OF THE CASE

Michael Tenner was indicted for a sale of cocaine to

James “Judge” Ellis on November 17, 1995, in violation of

Miss. Code Ann. § 41-29-139. (C.P.! 3) After pleading not

guilty, Tenner, with no prior police record, was tried,

convicted and sentenced to thirty years. (T. 184, C.P. 105)

Subsequent to the trial, the State’s informant and only

eyewitness, Ellis, recanted his identification of Tenner as

the seller. Tenner’s request for a new trial on that basis

was denied. (C.P. 122)

Late on the evening of November 17, 1995, the Jeffer-

son County Sheriff, his deputies, and agents of the Mis-

sissippi Bureau of Narcotics, along with Ellis, met to

execute a drug purchase. (T. 96-97) Ellis previously had

been convicted of selling cocaine and had received an

eight year sentence. (T. 74)

Ellis was sixty-nine or seventy years old. (T. 146)

Asked at trial how he came to be working for law

enforcement, Ellis said, “They had asked me, you know,

would I help them or something like that.” (T. 94) Nar-

cotics Agent Kenny Cotton testified that Ellis had become

a confidential informant “for no gain. I couldn’t offer him

anything. He basically did it for the community. He — he

volunteered — well, he and I had talked about it a couple

of times, you know, because I couldn’t offer him any-

thing. The judge had already sentenced him.” (T. 118)

Asked whether he had already been convicted when

law enforcement officials asked him to be an informant,

| References to the transcript pages will be in the format of

“T.” followed by the page number; Mississippi's practice is to

refer to pleadings volumes as “Clerk’s Papers,” or “C.P.”

followed by the page number.

3

he responded: “Well, they had, you know, been - no -

yes, | was. I had been convicted.” (T. 94) As he later

explained at the hearing on the new trial motion,

they had been working that deal a long time

ago, way before [the conviction], night and day.

So I’m telling you just like it is. And they told

me, said that if I do that tor them they would

get me out of it.

(T. 252)

On cross-examination, Ellis was asked how many

times he had sold cocaine in Jefferson County. The Dis-

trict Attorney’s objection was sustained. (T. 80) At a

sidebar following that ruling, Tenner’s lawyer explained:

MR. McGEHEE: I would like to find out what

this relationship is [between Ellis and the State].

Also, I think it’s very relevant how many time

(sic) he sold cocaine in Jefferson County versus

how many times he was indicted and the

charges he pled guilty to.

THE COURT: I’ve already sustained that objec-

tion.

(Tf. 81) Tenner wished to inquire into Ellis’ history and

whether the State was graciously declining other prosecu-

tions to reinforce Ellis’ volunteer spirit.

The Bureau of Narcotics agent, Cotton, had given

Ellis three one hundred dollar bills with which to make

the buy. (T. 97) Ellis drove to a country store owned by

Tenner’s mother and made the purchase. (T. 100, 190)

According to Ellis, he arrived at the store at about 10:00

p-m.; he said there was light coming from the store win-

dows and “yard light” from nearby houses. Ellis stopped

twenty-five feet from the store to be met by a man he

identified as Tenner. (T. 83-84)

Ellis then drove a short distance to rendezvous with

Agent Cotton and surrender the cocaine purportedly

4

received from Tenner. (T. 101, 70) After driving to the

store, Cotton asked a man outside the store, Michael’s

brother, Roosevelt Tenner, if Michael was there. (T. 103,

168) Michael, a friend, David Buckles, and Michael’s

other brothers, Charles, Cornelius, and Will, emerged

from the store. Ellis had testified he saw no one else

outside except Michael, “I didn’t see [anyone else]. I pay

no attention to anybody.” (T. 84)

Later that evening, Ellis related his story to Cotton

for the Bureau's report. At trial, Ellis said he looked at the

report, “but I didn’t read it because I can’t — my eyes are

bad, and I can’t see nothing, you know.” (T. 86, 89) Cotton

was aware of Ellis’ bad eyesight, admitting that Ellis had

not actually read the report. (T. 139)

Tenner was searched but no drugs were found. (T.

134) The Bureau did not bother to conduct skin or

clothing tests for traces of drugs. Cotton admitted that

such tests were available. (T. 134) No law enforcement

official searched the store.

Cotton found in Tenner’s possession over six hun-

dred dollars in U.S. currency. (T. 105, 135) Tenner told

Cotton that the money was from making payroll for the

trucking company owned by him and his four brothers.

(T. 105) Documentary evidence established the fact that

Tenner had withdrawn cash to make payroll; that was the

reason all five brothers were present. (Exhibit D-5, T. 185)

Three hundred dollar bills were those given to “Judge”

Ellis. (T. 105-06)

Tenner’s friend, David Buckles, the only eyewitness

not a member of the Tenner family and not a law enforce-

ment agent, testified that Michael did not leave the store

between about 8:45 p.m. and when the Sheriff arrived at

about 10:00 p.m. (T. 203) Roosevelt Tenner admitted that

5

he, not Michael, had received the money from Ellis, but

denied selling Ellis cocaine. (T. 167, 171) Roosevelt said

that after his transaction with Ellis he went into the store.

Cornelius asked him to buy a six-pack. (T. 154, 167)

Roosevelt had only the large bills received from Ellis.

Buckles and Michael’s brothers testified that Michael

made change for Roosevelt receiving in return the State’s

currency. (T. 155, 167-68, 188-89, 203)

Just before trial, Ellis called one of Tenner’s attor-

neys, Bobby Lamar Cox, at Cox’s home. During that

conversation, Ellis stated he would not testify against

Michael Tenner. At trial Ellis denied calling Cox. (T. 93)

Cox then testified that Ellis had lied. (T. 213-14) Receiving

the case at 6:30 p.m. on July 3, 1996, the jury returned a

guilty verdict later that evening. (T. 240; C.P. 105)

At the evidentiary hearing on Tenner’s motion for a

new trial, Ellis admitted he had called Cox prior to trial.

Ellis said his denial at trial was motivated by fear. (T. 250)

Ellis recanted his identification of Michael Tenner as the

seller:

A. No, I don’t [know who sold the

cocaine]. Because see, it was so quick and what

it was — I had - they gave me two shots in this

eye, and one - and when nighttime come, a car

light be giving off a spark. And I really just can’t

see too good at night.

(T. 251) Ellis said that he testified against Tenner even

though he could not be sure from whom he made the buy

because he was afraid of the prosecutor or the “narks”:

A. Well, see, what it was, I been dealing

with a bunch of them narks, and I really don’t

know who all it was. It was a gang of them. This

thing had been going on a long time. That’s why

they wired me up from the gitgo. And this had

6 -

been going on way before they got ready to try

me. And the deal — what it was, at the same time

they suppose to get me out of this mess. Now,

that’s how I got involved.

(T. 261)

Tenner raised three issues on appeal, including a

claim that the trial court’s refusing to allow his inquiry

into Ellis’ prior drug sales impermissibly curtailed his

right to confront the witness. (App. 4-5) About the Sixth

Amendment issue, the Mississippi Court of Appeals said,

in relevant part:

Any alleged curtailment by the trial court

affecting or limiting Tenner’s inquiry into Ellis’s

relationship with law enforcement is unsup-

ported by the record. In addition, we are not

persuaded that additional inquiry by Tenner would

have produced substantial interest, motive, or bias

not already established.

... A careful review of the record reveals

that the jury was more than amply aware of any

potential bias, motive, or interest Ellis may have

harbored. It was presented to the jury that Ellis was

a convicted felon presently incarcerated ... for the

sale of cocaine and that he was a confidential inform-

ant for the Mississippi Bureau of Narcotics. . . .

(App. 11-12) (emphasis supplied)

This case has one additional twist. At the post-trial

motion hearing, the following direct examination

occurred between the State’s drug agent, Kenny Cotton,

and the prosecutor:

Q. Now, in terms of the way that the drugs

were purchased on that particular night,

November 17th of 1995. Whose idea was it to

buy from Michael Tenner?

7

A. The idea was initiated from Judge Ellis.

That’s where the idea come from.

Q. Okay. And the basis being?

A. Excuse me?

Q. Well, I mean, what was the basis of it

all?

A. To buy drugs from Michael Tenner, who

Judge [Ellis] told me that he was getting his

drugs from. And not only Michael Tenner, there

were others - well, one other that he talked

about.

(T. 281)

In the context of the post-trial motion, Tenner’s coun-

sel elected not to object to Cotton’s hearsay statement

about Ellis’ “confessing” he had dealt drugs with Michael

Tenner. Tenner’s counsel did not expect Mississippi's

Court of Appeals to make the following finding:

During the evening hours of November 17,

1995, members of the Jefferson County Sheriff’s

Office and the Mississippi Bureau of Narcotics

conducted an undercover “buy” of a controlled

substance from Michael Tenner. James Ellis, a

confidential informant, met with Sergeant James

[Kenny] Cotton of the Mississippi Bureau of

Narcotics at a staging area in the Tennerville

community in Jefferson County just prior to the

“buy.” . . . Previous information given by Ellis

indicated that Ellis had purchased cocaine from Ten-

ner before and that Tenner was Ellis’s supplier.

(App. 5) (emphasis supplied)

Considering it beyond an appellate court’s jurisdic-

tion to rely on hearsay testimony amounting to a confes-

sion coming out during a post-trial motion hearing to

support the jury’s verdict, Tenner’s motion for rehearing

objected:

8

That the Court prefers to leave the jury

verdict alone, even with the recantation, may

have to do with the purported fact that

“{p]revious information given by Ellis indicated

that Ellis had purchased cocaine from Tenner

before and that Tenner was Ellis’s supplier.” Slip

op. at 2. The Court states this purported fact not

based on what the jury heard, but on Kenny

Cotton’s incompetent hearsay testimony... .

That this sort of speculation is improper for an

appellate court to engage in should not require

further discussion.

(Motion for Rehearing at 15)

REASONS FOR GRANTING WRIT

I. STATE COURTS OF FINAL RESORT HAVE

ADOPTED STANDARDS CONFLICTING AMONG

THE SEVERAL STATES AND CONFLICTING

WITH UNITED STATES COURTS OF APPEALS ON

WHETHER A DEFENDANT HAS A SIXTH

AMENDMENT RIGHT TO QUESTION A KEY WIT-

NESS ABOUT THAT WITNESS’ PRIOR

UNCHARGED ACTS IN ORDER TO SHOW A

MOTIVE TO TESTIFY FAVORABLY FOR THE

PROSECUTION.

This case greatly enjoys the orthodox factor used in

determining what cases merit review: state courts have

adopted conflicting standards about whether a defendant

has a Sixth Amendment right to cross-examine a key

witness on that witness’ prior uncharged acts.? Federal

2 Several states hold that the confrontation clause allows

defendants to inquire into uncharged acts: Rincher v. State, 632

So.2d 37(Ala.Crim.App. 1993), cert. den. 632 So.2d 41(Ala. 1994);

Whitton v. State, 479 P.2d 302 (AK 1970); State v. Torres, 97 Ariz.

' 9

courts are also divided on the issue.* Finally, because

federal law allows state prisoners to seek habeas relief in

federal court, there are conflicts between federal review-

ing courts and state courts.4

364, 400 P.2d 843 (1965); People v. Clark, 63 Cal.2d 503, 47

Cal.Rptr. 382, 407 P.2d 294 (1965); People v. Jones, 635 P.2d 907

(Colo.App. 1981), aff'd en banc 675 P.2d 9 (Colo. 1984); Ford v.

United States, 549 A.2d 1124 (D.C.App. 1988); Brown v. State, 74

Md.App. 414, 538 A.2d 317 (1988); State v. Zwillman, 112

N.J.Super. 6, 270 A.2d 284 (1970), certif. den. 57 N.J. 603, 274 A.2d

56 (1971); People v. Allen, 67 A.D.2d 558, 416 N.Y.S.2d 49 (1979),

aff'd 50 N.Y.2d 898, 430 N.Y.S.2d 588, 408 N.E.2d 917 (1980); State

v. Wilson, 311 N.C. 117, 316 S.E.2d 46 (1984); and Martinez v.

State, 904 P.2d 138 (Ok.Crim.App. 1995). Other states refuse to

permit inquiry into uncharged acts: State v. Moye, 214 Conn. 89,

570 A.2d 209 (1990); People v. O'Dell, 84 Ill.App.3d 359, 39

Ill.Dec. 830, 405 N.E.2d 809 (1980); Hansford v. State, 490 N.E.2d

1083 (Ind. 1986); State v. Cormier, 535 A.2d 913 (Me. 1987); State

v. Brandon, 264 Mont. 231, 870 P.2d 734 (1994); State v. Overby,

497 N.W.2d 408 (N.D. 1993); State v. Shabata, 678 P.2d 785 (Ut.

1984); and State v. Benn, 120 Wash.2d 631, 845 P.2d 289 (1993).

Annotation, Right to impeach witness in criminal case by inquiry or

evidence as to witness’ criminal activity not having resulted in arrest

or charge, 24 A.L.R.4th 333 (1983). Mississippi was firmly in the

category allowing some inquiry into prior acts, Suan v. State, 511

So.2d 144 (Miss. 1987). However, during the pendency of this

case, the Supreme Court decided Manning v. State, 726 So.2d

1153 (Miss. 1998), which held that a witness should not be cross-

examined about the witness’ involvement in other crimes.

3 The Fifth and Ninth Circuit Courts of Appeals have held

that uncharged acts may be inquired into: United States v.

Croucher, 532 F.2d 1042 (5th Cir. 1976); United States v. Brooke, 4

F.3d 1480 (9th Cir. 1993). The Sixth Circuit has held the opposite:

United States v. Christian, 786 F.2d 203 (6th Cir. 1986).

4 The First Circuit has held in a habeas proceeding that

prior charged acts may be inquired into, but not the penalty

avoided by accepting a plea bargain, Brown v. Powell, 975 F.2d 1

(1st Cir. 1992). This conflicts with State v. Rodriguez, 262

10

This complete range of conflicts undermines the cru-

cial role the Constitution plays in our nation’s life. See,

Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128

L.Ed.2d 745 (1994) (certiorari granted to resolve conflicts

arising under Sixth Amendment among state courts and

among federal courts). As our nation’s ur text, it is the

instrument which binds us into a polity honoring princi-

ples which are not aspirational but upon which we rely

each day. Typically, the Constitution quietly allows us to

go about our associational lives without worry that some

authority will find our business, or associates, offensive.

It also provides the means for the wrongly accused to be

delivered, and the rightly accused not to be convicted

without the state having proved its case.

The Sixth Amendment is indispensable to the cred-

ibility of the criminal justice system’s results. The right to

sift the state’s key witness’ past to ferret out the witness’

motive to lie or to show the witness’ susceptibility to the

will of the State’s officers can only increase the reliability

of a jury’s fact finding and support our courts’ credibility.

The Court has never considered the precise question

raised here, see Lindh v. Murphy, 117 S.Ct. 2059 (1997)

(petitioner raised issue in state court, but case arose on

issue relating to post-conviction relief statute, not merits).

Nevertheless, because the right to inquire into past acts is

N.J.Super. 564, 621 A.2d 534 (1993), which case stated that the

sentencing possibilities avoided by the witness were relevant

motive evidence. Also, on a habeas petition, the Fifth Circuit has

applied a standard favoring admissibility of prior acts evidence

in Carrillo v. Perkins, 723 F.2d 1165 (5th Cir. 1984); on direct

appeal, the state appellate court in that case had drawn the line

at permitting inquiry into past arrests, Carrillo v. State, 591

S.W.2d 876 (Tex.Crim.App. 1979).

11

well within the general thrust of the Court’s Sixth

Amendment jurisprudence, the Mississippi Court’s result

also should be reviewed because it “represent[s] a signifi-

cant departure from [the Court’s] Confrontation Clause

jurisprudence.” Lilly v. Virginia, 119 S.Ct. 1887, 1893

(1999).

Aside from the inherent importance of our rights

under the Sixth Amendment, see, e.g., Danner v. Kentucky,

119 S.Ct. 529 (1998) (Scalia, joined by Thomas, JJ., dissent-

ing from refusal of writ, “the more reprehensible the

charge, the more the defendant is in need of all constitu-

tionally guaranteed protection for his defense.”), the

Court should hear this case to ensure that a defendant

has some power to check systemic abuse of and by

informants.

Like conspiracies, where, as in this case, the govern-

ment and informant had an informal arrangement, or at

least the informant so believed, there is never much in the

way of direct evidence. See, generally, Zimmerman,

Toward a New Vision of Informants: A History of Abuses and

Suggestions for Reform, 22 Hast.Con.L.Q. 81 (1994); Hag-

lund, Impeaching the Underworld Informant, 63 So.Cal.L.R.

1405 (1990).

And the advocate’s armamentarium contains few

effective means of countering either a prosecutor’s mis-

use or an informant’s manipulation. The Sixth Amend-

ment embodies fundamental concepts of fairness at odds

with the use of informants:

President Eisenhower once described face-to-

face confrontation as part of the code of his

hometown of Abilene, Kansas. In Abilene, he

said, it was necessary to “[m]Jeet anyone face to

face with whom you disagree. You could not

12

sneak up on him from behind, or do any dam-

age to him, without suffering the penalty of an

outraged citizenry. .. . In this country, if some-

one... accuses you, he must come up in front.

He cannot hide behind the shadow.”

Coy v. lowa, 487 U.S. 1012, 1017-18, 108 S.Ct. 2798, 2801,

101 L.Ed.2d 857 (1988). This alone suggests that the con-

frontation clause is the “great engine” for checking

manipulative or manipulated informants.

Promoting the reliability of fact finding is a core

policy underlying the Sixth Amendment. Accord, Cham-

bers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d

297 (1973) (cross-examination helps assure the accuracy

of fact finding and any curb calls into question the integ-

rity of that process). Tenner does not suggest that cross-

examination is a complete solution to the problem of

informer misuse. But each case must turn on its own facts

and law without regard to other tools used to fashion a

more perfect criminal justice system.

All recognize that for certain crimes, such as conspir-

acies and “victimless” crimes, like drug dealing, there are

few means to “detect” the crime. But crediting the

informant’s testimony in this case suggests that our own

credulousness is part of the problem. Not only were the

handler’s and informer’s hands filled with conflicting

interests as in most such cases, but the jury knew that

either Ellis was lying or Cox was ~ a situation potentially

subjecting Cox to discipline - and the quoted portions of

Ellis’ testimony do not fully convey Ellis’ cognitive

impairments as does the full transcript.

In this case, crediting Ellis’ testimony depended less

on the informer’s ability to lie convincingly than on the

jury’s readiness to be deceived. Partly, this stems from an

13

interest in believing the goods which have been pur-

chased are as warranted. Partly, our suspension of disbe-

lief involves a desire to believe what we hear is the

“inside scoop.” One example suffices: what lawyer would

not submit to an episode of unanesthetized dentistry to

be the fly on the wall during the Court’s conferences?

Cross-examination is the means to present evidence

causing a jury to bethink itself that the state’s case may

be tainted, having too many turbid undercurrents in the

facts relating to the handling of the informer and the

power dynamic between the state and its informer. That

is why this case is of national importance.

Turning to the Court’s jurisprudence, because the

main function of the confrontation clause is the examina-

tion of witnesses appearing personally before the

accused, generally cases separate into a “scope of cross-

examination” category and an “out-of-court statement”

branch. Coy, 487 U.S. at 1016, 108 S.Ct. at 2800. This case

involves both main branches. The issue discussed in this

section relates to the “scope” series of cases.

In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75

L.Ed. 624 (1931), the Court considered whether the trial

court’s ruling that Alford could not inquire into the

informant’s place of residence and custodial status

infringed Alford’s Sixth Amendment right to confronta-

tion. The trial judge thought that Alford only could

impeach the witness by showing a conviction: “[Y]ou

can’t merely show that he is detained or in charge of

somebody. Everybody is presumed to be innocent until

proven guilty.” Id. at 689, 51 S.Ct. at 218-219. Alford was

not seeking to prosecute the witness, only suggest that

custody was a powerful motivator.

14

The Court of Appeals had dismissed Alford’s

attempted cross-examination as a “fishing expedition.”

The incredulous Court said that “[t]o say . . . prejudice

can be established only by showing that the cross-exam-

ination, if pursued, would necessarily have brought out

facts tending to discredit the testimony in chief, is to

deny a substantial right and withdraw one of the safe-

guards essential to a fair trial.” Id. at 692, 51 S.Ct. at 219

(emphasis supplied).

As to whatever the facts relating to the witness’

custody might be, the Court said:

[It was] not, as the trial court seemed to think, to

discredit the witness by showing that he was

charged with crime, but to show by such facts as

proper cross-examination might develop, that

his testimony was biased because given under

promise or expectation of immunity, or under

the coercive effect of his detention by officers of

the United States which was conducting the present

prosecution. (citations omitted)

Id. at 693, 51 S.Ct. at 220 (emphasis supplied). Alford was

entitled to show the imbalance in the witness’ bargaining

position to suggest the witness’ testimony “was affected

by fear or favor growing out of his detention.” Id.

Summing up, the extent of cross-examination is

always within the sound discretion of the trial court.

However, the scope of cross-examination cannot be lim-

ited to preclude examining the witness about residence

and custody:

[N]o obligation is imposed on the court. . . to

protect a witness from being discredited on

cross-examination, short of an attempted inva-

sion of his constitutional protection from self

incrimination, properly invoked. There is a duty

to protect him from questions which go beyond

15

the bounds of proper cross-examination merely

to harass, annoy or humiliate him.

Id. at 694, 51 S.Ct. at 220.

Perhaps the leading “scope” case is Davis v. Alaska,

415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In that

case, Davis was identified by sixteen year old Richard

Green as one of two men he had chatted with near where

a stolen safe was later discovered. Green’s evidence was

crucial to placing Davis at the scene and identifying him

as the man with the crowbar. Id. at 310, 94 S.Ct. at 1107.

Green, however, had been adjudicated a delinquent

for two burglaries. The defense lawyer wished to show

that Green was on probation and that his testimony might

have been the result of fear that his probation might be

revoked. Because Alaska law forbade revealing Green's

juvenile record, the trial court refused to permit cross-

examination about the boy’s burglaries or probationary

status.

The Alaska Supreme Court upheld the conviction

because Davis had been able to “adequately” cross-exam-

ine the boy. The Court disagreed, again noting that the

extent of cross-examination is always within the broad

discretion of the trial court, but that the scope of cross-

examination typically consists of two approaches:

One way of discrediting the witness is to intro-

duce evidence of a prior criminal conviction. . . .

By so doing the cross-examiner intends to afford

the jury a basis to infer that the witness’ charac-

ter is such that he would be less likely than the

average trustworthy citizen to be truthful in his

testimony. . . . A more particular attack on the

witness’ credibility is effected by means of

cross-examination directed toward revealing

16

possible biases, prejudices, or ulterior motives

of the witness... .

Id. at 316, 94 S.Ct. at 1110.

Restating Alford’s holding, the Court said that it

could not speculate as to whether the jury, the sole judge

of credibility, would have placed much weight on the

facts which might have been revealed by the cross-exam-

ination, but that Davis was entitled, under the Sixth

Amendment, to place such facts before the jury. The

Court also emphasized that this result is most compelling

in cases where the witness is key to the prosecution. Id.

at 317, 319, 94 S.Ct. at 1111, 1112.

Finally, the Court said that it is not enough Davis was

allowed to ask Green whether he was biased:

[C]ounsel was unable to make a record from

which to argue why Green might have been

biased or otherwise lacked that degree of impar-

tiality expected of a witness at trial. On the basis

of the limited cross-examination that was per-

mitted, the jury might well have thought that

defense counsel was engaged in a speculative

and baseless line of attack on. . . an apparently

blameless witness... . ”

Id. at 318, 94 S.Ct. at 1111.

Two other cases are of especial relevance to the case

sub judice, Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986), and Olden v. Kentucky, 488

U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). Robert Van

Arsdall was convicted of murdering Doris Epps during a

New Year’s party. The party was held in neighboring

apartments belonging to Fleetwood and Pregent.

Epps was last seen alive sleeping it off on Pregent’s

sofa bed. Van Arsdall showed up at Fleetwood’s door

spattered with blood and holding a bloody knife. Police

17

were summoned and they found Pregent asleep on the

blood-stained sofa bed and Epp’s body on Pregent’s

kitchen floor.

Van Arsdall sought to impeach Fleetwood about the

dismissal of a criminal charge after Fleetwood agreed to

talk to the prosecutor about Epps’ murder. Out of the

jury’s presence, Fleetwood acknowledged that the charge

was dropped after he agreed to meet with the prosecutor.

He denied the agreement had influenced his testimony

and the trial court denied Van Arsdall an opportunity to

cross-examine him about it. Van Arsdall, 475 U.S. at

674-77, 106 S.Ct. at 1432-34.

Citing Davis, the Court held that the trial court’s

ruling prohibittg all cross-examination as to motive and

bias violated Van Arsdall’s Sixth Amendment rights. Id.

at 679, 106 S.Ct. at 1435. “We think that a criminal defen-

dant states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in other-

wise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness... . ”

Id. at 680, 106 S.Ct. at 1436.

Relying on Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967), the Van Arsdall Court said that

an otherwise valid conviction should not be lightly

thrown away if the reviewing court “may confidently say,

on the whole record, that the constitutional error was

harmless beyond a reasonable doubt.” Van Arsdall, 475

U.S. at 681, 106 S.Ct. at 1436. The Court announced five

non-exclusive factors for reviewing courts to consider:

The correct inquiry is whether, assuming that

the damaging potential of the cross-examination

were fully realized, a reviewing court might

nonetheless say that the error was harmless

beyond a reasonable doubt. Whether such an

18

error is harmless in a particular case depends

upon a host of factors, all readily accessible to

reviewing courts. These factors include [1] the

importance of the witness’ testimony in the

prosecution’s case, [2] whether the testimony

was cumulative, [3] the presence or absence of

evidence corroborating or contradicting the tes-

timony of the witness on material points, [4] the

extent of cross-examination otherwise permit-

ted, and, of course, [5] the overall strength of

the prosecution’s case.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.

Olden was a per curiam summary reversal. Olden and

Harris, both African-Americans, were indicted for, inter

alia, rape of one Starla Matthews who was white. Mat-

thews claimed to have adventured into a juke joint, where

she became intoxicated. Unable to locate the friend with

whom she had ridden to the club, Olden and Harris

offered to drive her to this friend, purporting that the

friend had been in an accident. Thereafter, according to

Matthews’ several stories, she either was raped by two

men, four men, or only by Olden.

At her request, Olden and Harris dropped her off at

Bill Russell’s house. Russell and Matthews, though at the

time married to others, were having an affair and cohabit-

ing. Russell was of African descent. Id. at 228-31, 109 S.Ct.

at 481-82.

The defense wished to bring out the facts of the affair

and cohabitation as motive evidence. The trial court

refused; the Kentucky Court of Appeals explained the

evidence was properly excluded under Kentucky’s ver-

sion of Rule 403 because the matter of race could

“ ‘create[ ] extreme prejudice against Matthews.’ ” Id. at

231, 109 S.Ct. at 482.

19

The Court held that the Kentucky court had failed to

accord proper weight to Olden’s confrontation right:

[W]ithout acknowledging the significance of, or

even adverting to, petitioner’s constitutional

right to confrontation, the court held that peti-

tioner’s right to effective cross-examination was

outweighed by the danger that revealing Mat-

thews’ inter-racial relationship would prejudice

the jury against her. While a trial court may, of

course, impose reasonable limits on defense

counsel’s inquiry into the potential bias of a

prosecution witness, to take account of such

factors as “harassment, prejudice, confusion of

the issues, the witness’s safety or interrogation

that [would be] repetitive or only marginally

relevant” (citation omitted), the limitation here

was beyond reason.

Id. at 232, 109 S.Ct. at 483.

The Mississippi Court in this case also failed to men-

tion the Sixth Amendment. If evidence of an inter-racial

relationship is appropriate matter for cross-examination

into bias, it is very hard to see how facts relating to

uncharged crimes is not also proper grist for the jury’s

discerning of bias or motive. In Van Arsdall, Fleetwood

got his drunk driving charge dropped in return for infor-

mation. That was an existing charge, but in the context of

seeking evidence of motive or bias, there is no obvious

reason to draw a distinction between charged and

uncharged crimes. It may be that evidence of uncharged

crimes is more important because, as here, the prosecutor

can give the appearance of a penitent witness having

already been convicted, countering the conviction’s gen-

eral impeachment, while secretly retaining other potential

charges as leverage.

20

As in Van Arsdall, Tenner was precluded from all

questioning about Ellis’ motive. As in Davis, Tenner was

able to ask whether Ellis lied, but he was not able to show

the jury any facts, other than his lawyer’s having

received a call from Ellis, which suggested that Ellis had

a motive to lie.

Cotton averred at trial that the State could do noth-

ing for Ellis as he had already been convicted. Whether

this is true or not, the proper measure of a witness’

motive is not the State’s perception, but the witness’

expectations, however subjective. The state is not seeking

leniency, the witness is. State v. Little, 87 Ariz. 296, 350

P.2d 756 (1960) (witness’ expectation, even if mistaken,

unreasonable, or not based on prosecutorial conduct or

words, is proper test); State v. Rodriguez, 262 N.J.Super.

564, 621 A.2d 532 (1993) (codefendant’s lawyer caused

codefendant to offer inculpating testimony in hope that

prosecutor’s unexpected testimonial windfall would

result in reduced sentence). In another context, the Court '

has recognized that “[t]he police need not tell a person

who is in custody that his statements may gain him

leniency in order for the suspect to surmise that speaking

up, and particularly placing blame on his cohorts, may

inure to his advantage.” Lilly, 119 S.Ct. at 1901.

The Mississippi Court held that general impeachment

was good enough: “A careful review of the record reveals

that the jury was more than amply aware of any potential

bias, motive, or interest Ellis may have harbored. It was

presented to the jury that Ellis was a convicted felon

. and that he was a confidential informant for the

Mississippi Bureau of Narcotics... .” As in Olden, the

Mississippi Court failed to properly weigh Tenner’s con-

frontation right. Despite the Mississippi Court’s “careful

21

review of the record,” that court was factually incorrect

that Tenner was able to inquire into Ellis’ past drug

dealing: “While on cross-examination . . . Ellis was ques-

tioned regarding whether any additional drug purchases

were made by him . . . to which the state objected as to

relevancy. . . . The trial court allowed the question.”

The trial court sustained the state’s objection relating

to inquiry into Ellis past dealings twice. The Mississippi

Court’s conflating two separate lines of questions, one

relating to Ellis’ own past dealing, the other relating to

his drug purchases for the State, cannot have been inad-

vertent. Finding that “[a]ny alleged curtailment by the

trial court affecting or limiting Tenner’s inquiry into Ellis’

relationship with law enforcement is unsupported by the

record” is patently incorrect.

That the Mississippi Court was “not persuaded that

additional inquiry by Tenner would have produced sub-

stantial interest, motive, or bias not already established”

cannot foreclose Tenner’s Sixth Amendment right to pre-

sent such information to the jury. “To say that prejudice

can be established only by showing that the cross-exam-

ination, if pursued, would necessarily have brought out

facts tending to discredit the testimony in chief, is to

deny a substantial right and withdraw one of the safe-

guards essential to a fair trial.” Alford, 282 U.S. at 692, 51

S.Ct. at 219.

The Court in Alford did not need to answer the ques-

tion of how far an inquiry can go before the confrontation

clause begins to infringe the witness’ Fifth Amendment

rights. Preserving a witness’ Fifth Amendment rights by

limiting the extent of cross-examination is a function of an

appropriate balance of competing interests. Similarly, a

trial court’s broad discretion in limiting the extent of

22

cross-examination on the basis of harassment, prejudice,

repetition, and confusion of the issues, is a firm barrier to

inquiry into acts so remote in time as to be irrelevant

The “host of factors” indicate that the trial court’s

ruling was not harmless. The “full potential” of the testi-

mony would have been that Ellis had sold drugs many

times before in Jefferson County, Mississippi, and, as he

testified later, that the “narks” had been after him for a

long time before he pleaded guilty and agreed to set up

Michael Tenner.

The State could still seek other indictments with pen-

alties beyond eight years. At seventy years of age, Ellis

knew that any greater sentence than that offered could

amount to a life sentence. Ellis was the only witness who

identified Tenner as the seller. Ellis’ testimony was not

merely cumulative. The only other evidence was the pres-

ence of three one-hundred dollar bills on Tenner’s per-

son. However, in the face of a plausible explanation, the

circumstantial evidence of the three bills should not be

viewed as so thoroughly probative as to obviate the need

for other evidence. The error cannot be said to be harm-

less beyond a reasonable doubt.

II. TENNER’S RIGHTS TO DUE PROCESS AND

CONFRONTATION WERE VIOLATED BY THE

MISSISSIPPI COURT OF APPEALS’ AFFIRMING

THE CONVICTION ON THE BASIS OF A HEAR-

SAY CONFESSION THE JURY NEVER HEARD.

There is a threshold question about the preservation

of this error. In the conventional sense, Tenner had no

opportunity to raise this issue prior to the Court of

Appeals’ announcing its decision. The Court has never

allowed its jurisdiction to be foreclosed because the error

23

did not arise in the trial court. When the act alleged as

error is that of the highest state court hearing the case,

coming at the end of the proceedings, where the defen-

dant no longer may make a record, “it would leave a

serious gap in the remedy for infraction of constitutional

rights if the party aggrieved . . . could not come here.”

Saunders v. Shaw, 244 U.S. 317, 37 S.Ct. 638, 640 (1917); see

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 85, n. 9, 100

S.Ct. 2035, 2043, n. 9, 64 L.Ed.2d 741 (1980).

Tenner contends that the Mississippi Court of

Appeals substantially relied on hearsay testimony in

finding that Tenner was Ellis’ supplier. Before an appel-

late court, Tenner could not offer other evidence or cross-

examine the witness. Before setting out the Court’s “hear-

say” branch of confrontation jurisprudence, Tenner notes

that the type of hearsay relied on by the Court of Appeals

is inadmissible.

Mississippi has adopted rules substantially identical

to the Federal Rules of Evidence. Testimony about Ten-

ner’s prior bad acts would be character evidence,

Miss.R.Evid. 404. Rule 608, Miss.R.Evid., permits evi-

dence of specific acts only if probative of a witness’

truthfulness. Evidence of prior sales by Tenner to Ellis

has nothing to do with veracity.

Under Rule 404(b), evidence of earlier drug dealing is

inadmissible as substantive evidence of guilt. However,

prior acts evidence can be used for other reasons: to show

motive, opportunity, intent, preparation, plan, know-

ledge, identity, or absence of mistake or accident.

None of these categories are relevant to this case:

there was no question the sale was intended. Nor was

Tenner’s motive or opportunity in question; if he wished

to sell the drug, he had the opportunity. This case was not

24

about preparation, plan, or knowledge. It was about a

single sale of cocaine. Nor was Tenner’s identity in ques-

tion; both men knew each other by sight. The Court

should understand that this case arose in rural Missis-

sippi. Just after the district attorney asked the venire if

anyone knew James “Judge” Ellis, he blurted, “Okay.

We've got a lot of hands here.” (T. 19) Surely not every-

one raising a hand was a drug dealer.

Bad acts evidence, to be admissible in Mississippi,

must pass muster under one of Rule 404’s avenues.

Bounds v. State, 688 So.2d 1362, 1370 (Miss. 1997). In

Burrell v. State, 727 So.2d 761 (Miss.App. 1998), an inform-

ant testified that he “really couldn’t count the times” he

had bought drugs from the defendant. The trial court

allowed the testimony not as prior acts evidence but as

evidence of the defendant’s identity. The Court of

Appeals reversed, saying there was no question as to the

defendant's identity and the testimony was inadmissible

prior acts evidence. Id. at 768.

Mississippi has previously permitted informants to

testify about earlier sales to show an intent to distribute,

but only so long as the testimony is accompanied by a

limiting instruction as to intent. Smith v. State, 656 So.2d

95 (Miss. 1995). Research revealed no cases where Missis-

sippi has allowed hearsay testimony about such acts.

Also, Tenner was not indicted for intending to distribute,

but only for a single sale of cocaine.

Rule 404 exists to keep evidence out which merely

predicts that, the defendant having done an unlawful act

in the past, the defendant has done the act charged. The

Mississippi court’s decision demonstrates that the affect

of past acts evidence is no less pernicious on judges than

it is on juries. Also, Ellis’ admission that he had dealt

25

drugs with Tenner in the past, if Ellis said that, merely

demonstrates that the State had many more crimes with

which to prosecute Ellis if he did not produce the

required testimony.

The drug agent’s statement is a type of hearsay

which the Sixth Amendment does not permit. If Cotton’s

hearsay testimony would have been inadmissible before

the jury, it is very hard to see how an appellate court can

rely on it consistent with Tenner’s Sixth and Fourteenth

Amendment rights.

In Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct.

337, 339, 39 L.Ed. 409 (1895), the Court recounted the

historical background of the Sixth Amendment:

The primary object of the constitutional pro-

vision in question was to prevent depositions or

ex parte affidavits, such as were sometimes

admitted in civil cases, being used against the

prisoner in lieu of a personal examination and

cross-examination of the witness, in which the

accused has an opportunity, not only of testing

the recollection and sifting the conscience of the

witness, but of compelling him to stand face to

face with the jury in order that they may look at

him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony

whether he is worthy of belief.

Since then, the Court has been at once careful to

reject the idea that the confrontation clause should be

confined to situations analogous to ex parte affidavits, and

also to view such analogous situations with suspicion.

Lilly, 119 S.Ct. at 1895, 1900. Because the “out of court”

statement cases arise in a variety of circumstances, the

Court has engaged in the common law tradition of care-

fully assessing facts in light of both past experience and

26

changing conditions. See Ohio v. Roberts, 448 U.S. 56,

64-65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980).

Several cases have concerned prior testimony sought

to be used in a separate present proceeding. E.g., Motes v.

United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150

(1900); Mattox, supra; Roberts, supra; Pointer, supra; Califor-

nia v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489

(1970). Other cases involved intercepted statements made

in the course of a conspiracy. United States v. Inadi, 475

U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Bourjaily v.

United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144

(1987). Recently, responding to a modern recognition of

the problem of child sex abuse, the Court has dealt with

situations involving child witnesses. E.g., White v. Illinois,

502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Idaho v.

Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638

(1990).

Another series of cases, those relevant to this one,

involve testimony at trial, or the introduction of prior

statements, by a law enforcement officer purporting to

reproduce a third person’s “confession” inculpating the

defendant. Lilly, supra; Lee v. Illinois, 476 U.S. 530, 106

S.Ct. 2056, 90 L.Ed.2d 514 (1986); Tennessee v. Street, 471

U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); Douglas v.

Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

There is a related series of cases where, at a joint trial, the

state has sought to introduce a non-testifying codefen-

dant’s confession. Bruton v. United States, 391 U.S. 123, 88

S.Ct. 1620, 20 L.Ed.2d 476 (1968); Richardson v. Marsh, 481

U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Gray v.

Maryland, 118 S.Ct. 1151 (1998).

The confrontation clause and the hearsay rule “are

generally designed to protect similar values, [but] it is

27

quite a different thing to suggest that the overlap is

complete and that the Confrontation Clause is nothing

more or less than a codification of the rules of hear-

say....” Green, 399 U.S. at 155, 90 S.Ct. at 1933. Gener-

ally, hearsay is excluded for obvious reasons: the

declarant could have been lying; the events may have

been misperceived; memory may be faulty; and the lis-

tener may have misunderstood or taken the declaration

out of context. In-court confrontation minimizes the hear-

say dangers through several means: the oath, the impres-

sive seriousness of trials, and the jury’s observation of the

witness’ demeanor, especially on cross-examination. Wil-

liamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431,

2434, 129 L.Ed.2d 476 (1994).

In-court confrontation is a “functional right” that

promotes the reliability of the jury’s truth seeking func-

tion. This jury duty is “uniquely threatened when an

accomplice’s confession is sought to be introduced

against a criminal defendant without the benefit of cross-

examination.” Lee, 476 U.S. at 540-41, 106 S.Ct. at 2062. As

in Lee and Douglas, in this case the State, in the person of

its Court of Appeals, used hearsay evidence as substan-

tive evidence against Tenner. Before that court, no cross-

examination is available. As in Lee, “[t]he danger against

which the Confrontation Clause was erected — the convic-

tion of a defendant based, at least in part, on presump-

tively unreliable evidence - actually occurred.” Id. at 543,

106 S.Ct. at 2063.

Hearsay evidence is admissible under certain circum-

stances. However, those circumstances must either be of a

kind rendering cross-examination irrelevant or through

which it is impossible to replicate the circumstances of

the declaration, e.g., a dying declaration, coconspirator

28

statements made during the conspiracy. The Court usu-

ally denominates these exceptions as “firmly rooted”

ones. Failing that, the hearsay statement must “possess

indicia of reliability by virtue of [the declaration’s] inher-

ent trustworthiness, not by reference to other evidence at

trial.” Wright, 497 U.S. at 822, 110 S.Ct. at 3150.

There is no evidence here that the drug enforcement

agent’s statements bear any indicia of reliability. His

statement was prototypical hearsay which does not fall

into any “firmly rooted” exception. As the Court has

held, that a person’s statement may be used to inculpate

that person, does not make it admissible against a differ-

ent person merely because the overall statement is

against the declarant’s penal interest. Williamson, 512 U.S.

at 600-01, 114 S.Ct. at 2435.

The drug agent’s statement was the most suspect

variety: purporting to be information gained during the

course of interrogating a person seeking leniency. In this

case, the state was involved in actually producing the

statement, it was not made in furtherance of the conspir-

acy, and the statement had never been, nor could it be,

tested by cross-examination. In other words, this case

implicates “the core concerns of the old ex parte affidavit

practice.” Lilly, 119 S.Ct. at 1900.

The use, by a trial court, of an “untested confession”

inculpating another besides the declarant violates the

other person’s Sixth Amendment rights. Lilly, 119 S.Ct. at

1901. That is, even if the hearsay testimony were admissi-

ble under an exception, the Sixth Amendment precludes

its use in these circumstances. Wright, 497 U.S. at 814, 110

S.Ct. at 3146. The use of untested inculpating statements

by an appellate court not only violated Tenner’s Sixth

Amendment rights but his right to proper process before

29

the courts of Mississippi guaranteed him by the Four-

teenth Amendment:

The right of an accused in a criminal trial to

due process is, in essence, the right to a fair

opportunity to defend against the State’s accu-

sations. The rights to confront and cross-exam-

ine witnesses and to call witnesses in one’s own

behalf have long been recognized as essential to

due process. Mr. Justice Black . . . identified

these rights as among the minimum essentials of

a fair trial:

“A person’s right to reasonable notice of a

charge against him, and an opportunity to

be heard in his defense - a right to his day

in court — are basic in our system of juris-

prudence; and these rights include, as a

minimum, a right to examine the witnesses

against him, to offer testimony, and to be

represented by counsel.” (citations omitted)

Chambers, 410 U.S. at 294, 93 S.Ct. at 1045, quoting In re

Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed.2d 682

(1948). See, Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3

L.Ed.2d 1377 (1959) (long-accepted notions of fair pro-

cedure include notice and confrontation where govern-

mental action affects liberty or property right).

The process due a criminal defendant has always

included proper notice of the charges to defend against.

The Schooner Hoppet v. United States, 7 Cranch 389 (1817).

In The Hoppet, Chief Justice Marshall said,

The rule that a man shall not be charged

with one crime and convicted of another, may

sometimes cover real guilt, but its observance is

essential to the preservation of innocence. It is

only a modification of this rule, that the accusa-

tion on which the prosecution is founded,

should state the crime which is to be proved,

30

and state such a crime as will justify the judg-

ment to be pronounced.

Id. at 394.

The Mississippi appellate court found Tenner culpable

of acts for which he was never charged: “Previous infor-

mation given by Ellis indicated that Ellis had purchased

cocaine from Tenner before and that Tenner was Ellis’s

supplier.” Against this accusation, Tenner had no oppor-

tunity to defend. Nor, under the indictment handed down

by the grand jury, was he required to do so.

The Mississippi Court of Appeals’ action was so far

outside the bounds of ordinary due process that the

Court should hear and decide this case as a supervisory

warning that the problem of drugs in our society, great as

it is, cannot justify a “repeal” of the Fourteenth Amend-

ment by judicial fiat.

Respectfully submitted,

T. Jackson Lyons

Attorney at Law

Standard Life Building

206 West Pearl Street, Suite 711

Jackson, Mississippi 39201

Tel. (601) 352-0330

Fax. (601) 969-1402

MSB #8988

Counsel of Record for Petitioner

App. 1

IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CT-00930-SCT

MICHAEL TENNER

V.

STATE OF MISSISSIPPI

ORDER

(Filed May 13, 1999)

This matter came before the Court on the Petition for

Writ of Certiorari filed by Michael Tenner. The Court has

considered the petition and finds that it should be

denied.

IT IS, THEREFORE, ORDERED that the Petition for

Writ of Certiorari filed by Michael Tenner be, and hereby

is, denied.

SO ORDERED this, the 4th day of May, 1999.

/s/ Lenore L. Prather

LENORE L. PRATHER,

CHIEF JUSTICE

FOR THE COURT

TO DENY: Prather, C.J., Sullivan and Pittman, P.JJ.,

Banks, McRae, Smith, Mills, Waller, and Cobb, JJ.

App. 2

SUPREME COURT AND COURT OF APPEALS

STATE OF MISSISSIPPI

CHARLOTTE B. WILLIAMS, CLERK

THIRD FLOOR GARTIN BUILDING

450 HIGH STREET

POST OFFICE BOX 249

JACKSON, MISSISSIPPI 39205-0249 —

TELEPHONE: (601) 359-3694

FACSIMILE: (601) 359-2407

Kathy Gillis Bettye Malanchak

Chief Deputy Deputy Clerk

February 9, 1999

This is to advise you that the Mississippi Court of

Appeals rendered the following decision on the 9th day

of February, 1999.

Court of Appeals Case # 96-KA-00930-COA

Trial Court Case # 2950

Michael Tenner v. State of Mississippi

Motion for rehearing denied. McMillin, P.J., Irving and

Lee, JJ., not participating.

*NOTICE TO CHANCERY/CIRCUIT/COUNTY

COURT CLERKS*

If an original of any exhibit other than photos was sent to

the Supreme Court Clerk and should now be returned to

you, please advise this office in writing immediately.

Ne 9 Ny aN ee EE Scorers

App. 3

IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 96-KA-00930 COA

MICHAEL TENNER APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR

PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT:

07/03/96

TRIAL JUDGE:

HON. LAMAR PICKARD

COURT FROM WHICH APPEALED:

JEFFERSON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

BOBBY L. COX

WILLIAM CARL MCGEHEE JR.

T. JACKSON LYONS

ATTORNEY FOR APPELLEE:

DEIRDRE MCCRORY

DISTRICT ATTORNEY:

ALEXANDER C. MARTIN

NATURE OF THE CASE:

CRIMINAL-FELONY

App. 4

TRIAL COURT DISPOSITION:

UNLAWFUL SALE OF COCAINE:

SENTENCED TO 30 YRS WITH THE MDOC;

DISPOSITION:

AFFIRMED - 9/29/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

BEFORE THOMAS, P.J., KING, AND SOUTHWICK, JJ.

THOMAS, P.J., FOR THE COURT:

Michael Tenner appeals his conviction of unlawful

sale of cocaine raising the following issues as error:

I. WHETHER, IN CASES OF RECANTED TESTI-

MONY BY THE STATE’S KEY WITNESS, MISSIS-

SIPP] SHOULD WITHDRAW FROM THE

CONFUSION OCCASIONED BY ASSESSING

RECANTED TESTIMONY UNDER THE STAN-

DARD FOR GRANTING NEW TRIALS ON THE

BASIS OF NEWLY-DISCOVERED EVIDENCE, AND

EMBRACE A STANDARD, FOLLOWED BY A

MAJORITY OF THE FEDERAL COURTS, WHERE A

NEW TRIAL SHOULD BE GRANTED IF A PRIMA

FACIE SHOWING OF FALSE TESTIMONY IS

MADE AND THE CHANGED TESTIMONY IS SO

MATERIAL THAT IT MIGHT YIELD A DIFFERENT

RESULT IF TRIED ANEW.

Il. WHETHER THE TRIAL COURT COMMITTED

ERROR OF A CONSTITUTIONAL DIMENSION IN

FAILING TO ALLOW AN EXPLORATION INTO

THE STFATE’S KEY WITNESS’S PAST ACTIONS

WHICH COULD HAVE INDICATED EITHER BIAS

App. 5

OR THE WITNESS’S INTEREST IN DELIVERING

TESTIMONY FAVORING THE PROSECUTION.

III. WHETHER THE TRIAL COURT ERRED IN PER-

MITTING A STATE’S WITNESS TO OPINE REPEAT-

EDLY, WITHOUT ANY PREDICATE, THAT THE

WITNESS HEARD, VIA A “BODY WIRE” ON THE

STATE’S KEY WITNESS, A CONVERSATION WITH

A PERSON “WHO WE THOUGHT WAS MICHAEL

TENNER.”

Finding no error, we affirm.

FACTS

During the evening hours of November 17, 1995,

members of the Jefferson County Sheriff’s Office and the

Mississippi Bureau of Narcotics conducted an undercover

“buy” of a controlled substance from Michael Tenner.

James Ellis, a confidential informant, met with Sergeant

James Cotton of the Mississippi Bureau of Narcotics at a

staging area in the Tennerville community in Jefferson

County just prior to the “buy.” Ellis’s ‘car and person

were searched, and he was fitted with a recording device

commonly called a “wire.” The serial numbers and photo-

copies of three $100 bills used to facilitate the “buy” were

recorded by Agent Cotton and given to Ellis. Ellis was

instructed to locate Michael Tenner and purchase a “quar-

ter” of cocaine or $300 worth. Previous information given

by Ellis indicated that Ellis had purchased cocaine from

Tenner before and that Tenner was Ellis’s supplier.

After unsuccessfully attempting to contact Tenner at

his residence by car phone, Ellis spotted Tenner at the

Tennerville Store and relayed the information over the

“wire” to Agent Cotton. Ellis then proceeded to purchase

App. 6

a quarter of cocaine from Michael Tenner. Upon comple-

tion of the illegal purchase, Ellis met Agent Cotton a

short distance from the Tennerville Store. Ellis turned the

cocaine over to Agent Cotton and positively identified

Michael Tenner as the seller. Agent Cotton and Sheriff

Walker then returned to the Tennerville Store and

arrested Michael Tenner. A search of Tenner’s person

revealed the three $100 dollar bills previously recorded

by Agent Cotton.

At trial, Ellis was called to testify against Michael

Tenner regarding the November 17, 1995 illegal sale of

cocaine. Ellis testified to the events of that evening in

detail and positively identified Michael Tenner as the

person who sold him cocaine. Tenner was convicted of

the unlawful sale of cocaine.

Tenner filed a motion for a new trial and a hearing

was held on August 15, 1996. At the hearing, Ellis testi-

fied that he had incorrectly identified Michael Tenner as

the person who had sold him cocaine. Ellis explained in

support of his recantation that his eyesight was bad and

that his memory was inadequate to recall the details of

the sale on November 17, 1995. When asked why Ellis

had testified against Tenner at trial, Ellis simply stated he

was scared, but could not give any details or elaborate

further. The truthfulness and veracity of Ellis’s recanting

testimony was called into doubt by the court and Ten-

ner’s motion for new trial was denied.

App. 7

ANALYSIS

I.

WHETHER, IN CASES OF RECANTED TESTIMONY BY

THE STATE’S KEY WITNESS, MISSISSIPPI SHOULD

WITHDRAW FROM THE CONFUSION OCCASIONED

BY ASSESSING RECANTED TESTIMONY UNDER THE

STANDARD FOR GRANTING NEW TRIALS ON THE

BASIS OF NEWLY-DISCOVERED EVIDENCE, AND

EMBRACE A STANDARD, FOLLOWED BY A MAJORITY

OF THE FEDERAL COURTS, WHERE A NEW TRIAL

SHOULD BE GRANTED IF A PRIMA FACIE SHOV/ING

OF FALSE TESTIMONY IS MADE AND THE CHANGED

TESTIMONY IS SO MATERIAL THAT IT MIGHT YIELD

A DIFFERENT RESULT IF TRIED ANEW.

As Tenner’s first assignment of error, he maintains

that Mississippi's current standard of assessing recanting

testimony as applied under the newly discovered evi-

dence standard should be supplanted by the Larrison

standard, a standard applied by a majority of federal

courts of appeals. Larrison v. United States, 24 F.2d 82 (7th

Cir. 1928). Tenner asserts that the current standard as

applied in Mississippi allows inconsistent interpretations

among the lower courts. We are not inclined to do so, nor

are we persuaded by this assignment of error.

Mississippi's standard for assessing recanted testi-

mony under the newly discovered evidence standard is

well established and more than adequately provides our

lower courts the necessary framework to properly apply

a standard of assessing recanted testimony without the

inconsistencies as alleged by Tenner. Newly discovered

evidence will warrant a new trial if there is the proba-

bility that a different result or verdict will be produced

App. 8

when the evidence is introduced in a new trial. In addi-

tion, the proponent has the burden to show: 1) that the

evidence was discovered subsequently to trial, 2) that the

evidence would not have been discovered before trial

through the exercise of due diligence, 3) that the new

evidence is material to the issue, and 4) that the new

evidence is not merely cumulative or impeaching. Smith

v. State, 492 So.2d 260, 263 (Miss. 1986). This assessment is

measured by the preponderance of evidence standard.

McClendon v. State, 539 So.2d 1375, 1377 (Miss. 1989).

In applying the newly discovered evidence standard

to recanting testimony we view recanting testimony as

“exceedingly unreliable, and is regarded with suspicion;

and it is the right and duty of the court to deny a new

trial where it is not satisfied that such testimony is true.”

Bradley v. State, 214 So.2d 815, 817 (Miss. 1968). To do

otherwise would allow our courts to be undermined by a

corrupt witness’s recanting testimony and “cause the

issue to oscillate at will.” Id. Further, the mere fact that a

witness gives recanting testimony after trial, standing

alone, is an inadequate ground for justifying the defen-

dant’s request for a new trial; rather, the inquiry should

take into consideration the entire realm of circumstances

of the case, including the testimony of the witnesses

submitted at the hearing for a new trial. Id. This inquiry

should yield a determination by the circuit court soundly

confident in the original outcome. Only when the recant-

ing testimony undermines this confidence should a new

trial be ordered. Yarborough v. State, 514 So.2d 1215, 1220

(Miss. 1987). We are bound by the trial court’s discretion

whether to grant or deny a new trial based on recanting

testimony; unless the trial court abused this discretion,

- App. 9

we will not overrule the lower court’s decision. Bradley, at

817; Smith v. State, 492 So.2d 260, 263 (Miss. 1986);

Ormond v. State, 599 So.2d 951, 962 (Miss. 1992).

In applying this standard to the recanting testimony

of Ellis, it is clear at first sight that Ellis’s testimony meets

the four prongs of the newly discovered evidence stan-

dard in Smith. However, when assessing recanting testi-

mony under the issue of newly discover [sic] evidence,

further analysis into the nature and circumstances of the

recanting testimony is required. There can be no doubt

that Ellis’s testimony weighed heavily upon Tenner’s

conviction, and although its materiality is without ques-

tion, the inquiry into the recanting testimony itself does

not end upon this conclusion. Given the unique nature of

recanting testimony, an assessment of the recanting testi-

mony should be undertaken with a degree of caution and

suspicion. The trial court has the right and duty to deny a

motion for a new trial based on recanting testimony when

the circumstances taken as a whole indicate the recanting

testimony is untruthful.

At trial, Ellis testified that he purchased a quarter of

cocaine from Michael Tenner during the evening hours of

November 17, 1995. The testimony of both Ellis and Ten-

ner reveals that they knew each other by sight and Ellis

identified Tenner at trial as the individual who had sold

him the cocaine. The record reflects that it was Ellis who

sought out local law enforcement and volunteered to

undergo the illegal purchase from Tenner. The testimony

of Agent Cotton supports Ellis’s identification of Tenner

as the seller. When asked by Agent Cotton immediately

after the sale from whom had Ellis purchased the cocaine,

App. 10

Ellis stated he purchased the cocaine from Michael Ten-

ner.

At Tenner’s hearing for a new trial, Ellis gave recant-

ing testimony. It was then that Ellis testified that he had

incorrectly identified Michael Tenner as the person who

had sold him cocaine. During the questioning of Ellis at

the hearing, Ellis stated that both his eyesight and mem-

ory were bad, but failed to provide any detailed explana-

tion as to why he now sought to recant his testimony or

from whom he had purchased the cocaine. Upon this

testimony and in consideration of Ellis’s testimony given

at trial, the court concluded that Ellis’s veracity at the

hearing was inadequate to overcome his previous testi-

mony against Tenner at trial.

Therefore, we cannot find that an abuse of discretion

occurred when all the circumstances taken together raise

the court’s suspicion that the veracity and truthfulness of

Ellis’s recanting testimony fails to undermine the court's

confidence in the original outcome. There is no merit in

this assignment of error.

II.

WHETHER THE TRIAL COURT COMMITTED ERROR

OF A CONSTITUTIONAL DIMENSION IN FAILING TO

ALLOW AN EXPLORATION INTO THE STATE’S KEY

WITNESS’S PAST ACTIONS WHICH COULD HAVE

INDICATED EITHER BIAS OR THE WITNESS’S INTER-

EST IN DELIVERING TESTIMONY FAVORING THE

PROSECUTION.

Tenner contends the trial court erred in not permit-

ting him to effectively question Ellis’s bias and interest in

providing testimony favorable to the prosecution. It is

App. 11

Tenner’s position that the line of questioning prevented

by the trial court would have revealed a history of career

drug dealing by Ellis and the possibility of anticipated

favor from law enforcement should friendly testimony

concerning Ellis’s drug buy with Tenner be provided. The

record reflects differently the error assigned by Tenner.

While on cross-examination by defense counsel, Ellis

was questioned regarding whether any additional drug

purchases were made by him in addition to the instant

purchase with Tenner, to which the State objected as to

relevancy. At side bar Tenner explained the purpose of

the line of questioning. Tenner argued he was attempting

to develop any additional information concerning

uncharged crimes that would infer a relationship with

local law enforcement which would tend to establish

Ellis’s motive or interest in testifying against Tenner. The

trial court allowed the question.

Any alleged curtailment by the trial court affecting or

limiting Tenner’s inquiry into Ellis’s relationship with

law enforcement is unsupported by the record. In addi-

tion, we are not persuaded that additional inquiry by

Tenner would have produced substantial interest, motive,

or bias not already established.

It is well settled that the relevancy and admissibility

of evidence are within the trial court’s discretion and

reversal may be had only where that discretion has been

abused. Stromas v. State, 618 So.2d 116, 119 (Miss. 1993);

M.R.E. 103(a), 401. A careful review of the record reveals

that the jury was more than amply aware of any potential

bias, motive, or interest Ellis may have harbored. It was

presented to the jury that Ellis was a convicted felon

App. 12

presently incarcerated at the Rankin County Correction

Facility for the sale of cocaine and that he was a confiden-

tial informant for the Mississippi Bureau of Narcotics at

the time of the illegal sale between Tenner and himself.

This assignment of error is without merit.

III.

WHETHER THE TRIAL COURT ERRED IN PERMIT-

TING A STATE’S WITNESS TO OPINE REPEATEDLY,

WITHOUT ANY PREDICATE, THAT THE WITNESS

HEARD, VIA A “BODY WIRE” ON THE STATE’S KEY

WITNESS, A CONVERSATION WITH A PERSON “WHO

WE THOUGHT WAS MICHAEL TENNER.”

Tenner’s final assignment of error is aimed at the

admission of testimony given by Agent Cotton concern-

ing voices transmitted over the “wire” during the drug

buy. On appeal, Tenner maintains that the testimony

given by Agent Cotton amounted to an opinion identify-

ing Tenner’s voice as the seller without having first laid

the proper predicate as required in McDavid v. State, 594

So.2d 12 (Miss. 1992). However, at trial Tenner’s objection

to the testimony of Agent Cotton concerned its admis-

sibility under the best evidence rule and not its admis-

sibility under McDavid. Consequently, Tenner is

procedurally barred from raising a different objection on

appeal. See Lester v. State, 692 So.2d 755, 772 (Miss. 1997)

(stating that objection on one ground at trial waives all

other grounds for an objection on appeal). When a defen-

dant raises a single objection at trial, it cannot be subse-

quently enlarged on appeal to encompass objections

waived at trial. Brown v. State, 682 So.2d 340, 350 (Miss.

App. 13

1996); McGarrh v. State, 249 Miss. 247, 148 So.2d 494, 506

(Miss. 1963).

Despite the procedural bar, Tenner’s assignment of

error is also without merit. Tenner maintains that the

requisite predicate, as required under McDavid was not

properly laid prior to Agent Cotton's testimony identify-

ing the seller’s voice heard over the “wire” as the voice of

Tenner. We are not persuaded. Prior to giving testimony

and expressing an opinion that the seller’s voice was that

of Tenner, an even more “stringent predicate must be

laid.” McDavid v. State, 594 So.2d 12, 15 (Miss. 1992). This

predicate has even greater importance when there is no

tape recording of the sale to be offered into evidence.

Before admitting such opinion testimony, the State must

offer testimony by the officer as to “when, where, and

under what circumstances” the officer later heard the

defendant's voice. Id.

Agent Cotton testified that Tenner was arrested a

short time after the sale with Ellis took place. Cotton also

testified that he transported Tenner to the Jefferson

County Sheriff’s office where Tenner was processed and

read his rights. Tenner waived his rights and consented to

questioning by Agent Cotton. Only a few hours tran-

spired between when Agent Cotton first heard the

seller’s voice over the “wire” and when Agent Cotton

began questioning Tenner after arrest. It is readily appar-

ent from the record that sufficient testimony regarding

when, where, and under what circumstances Agent Cot-

ton later heard the voice of Tenner was available had

Tenner made the proper objection at trial.

App. 14

In addition to the circumstances readily available in

the record concerning Agent Cotton’s opinion as to the

identity of the seller, Ellis had previously testified that he

was equipped with a wire, that he drove to the Tenner-

ville Store, had a brief conversation with Tenner, and

purchased cocaine from Tenner at that time. All this

occurred while Agent Cotton sat in surveillance listening

over the “wire.” The effect of Agent Cotton’s testimony

concerning what he heard over the “wire” and his testi-

mony that he heard a voice “who we thought was

Michael Tenner,” is cumulative of the testimony already

provided by Ellis. Therefore, in addition to the fact Ten-

ner’s assignment of error is procedurally barred, it is also

without merit. We affirm.

THE JUDGMENT OF THE CIRCUIT COURT OF

JEFFERSON COUNTY OF CONVICTION OF THE

UNLAWFUL SALE OF COCAINE AND SENTENCE OF

THIRTY (30) YEARS IN THE CUSTODY OF THE MIS-

SISSIPPI DEPARTMENT OF CORRECTIONS IS

AFFIRMED. ALL COSTS OF THIS APPEAL ARE

ASSESSED TO THE APPELLANT.

BRIDGES, C.J., COLEMAN, DIAZ, HERRING,

HINKEBEIN, KING, PAYNE, AND SOUTHWICK, JJ.

CONCUR. McMILLIN, P.J., NOT PARTICIPATING.