IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-00266-COA
STEWART CHASE VAUGHN A/K/A STEWART APPELLANT
C. VAUGHN A/K/A STEWART VAUGHN A/K/A
STUART CHASE VAUGHN
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/04/2013
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF SALE OF
METHAMPHETAMINE AND SENTENCED
AS A HABITUAL OFFENDER AND A
SUBSEQUENT DRUG OFFENDER TO
SIXTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY A $10,000
FINE
DISPOSITION: AFFIRMED – 09/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Stewart Vaughn appeals from the judgment of the Circuit Court of Rankin County
sentencing him, as a habitual and subsequent drug offender, to a term of sixty years in the
custody of the Mississippi Department of Corrections (MDOC) for his conviction of the sale
of methamphetamine. He asks this Court to decide whether, during trial, the circuit court
erred in failing to sua sponte exclude certain evidence and whether the amendment of the
indictment prejudiced his defense.
¶2. Finding no error, we affirm.
FACTS
¶3. On November 8, 2012, at around 11:30 p.m., Vaughn, during a “bust buy,” sold
approximately three grams of methamphetamine to James Denton, a confidential informant
working with the Rankin County Sheriff’s Department. Denton purchased the drugs with
marked cash.
¶4. During the early morning of November 9, 2012, officers arrested Vaughn and his
companion, Tammy Brewer, as Vaughn and Brewer were traveling in a sedan driven by
Brewer.1 Following her arrest, Brewer, in response to questioning, informed investigators
that Vaughn had thrown cash from the front-passenger-side window of the sedan. During
a subsequent video-recorded interrogation session, Brewer repeated her initial statement.
¶5. Soon after the arrest, in an attempt to find the discarded cash, officers searched the
area near the location of the arrest; however, because it was dark at that time, they suspended
the search until later that day. During the follow-up search, officers discovered the marked
cash, along with other unidentified funds.
¶6. After a grand jury indicted Vaughn for the sale of methamphetamine, the State filed
1
Vaughn was Brewer’s only passenger.
2
a motion to amend the indictment to charge him as a habitual offender pursuant to
Mississippi Code Annotated section 99-19-81 (Supp. 2014). Without an objection by
Vaughn, the circuit court granted the amendment, and the case went to trial on October 28,
2013.
¶7. Prior to trial, Vaughn filed a motion to suppress “all evidence, [including the cash;]
[any] alleged contraband[;] [his] identity[;] and all statements[,] [including Brewer’s
statements to officials,] and testimony concerning the alleged contraband.” The circuit court
granted the motion as to Brewer’s recorded statement but withheld its ruling on the
admissibility of the remaining evidence. The court informed Vaughn that, during trial, he
could renew his motion to suppress or object to the introduction of that evidence.
¶8. In its opening statement, the State mentioned Brewer’s initial statement, but Vaughn
failed to object. The State then adduced testimony regarding Brewer’s initial statement, and
Vaughn failed to object to that testimony, as well. During its closing argument, the State
attempted to repeat Brewer’s initial statement to the jury, and Vaughn objected. The circuit
court sustained the objection. After a jury convicted Vaughn, he filed a motion for a
judgment notwithstanding the verdict (JNOV), which the circuit court denied. This appeal
ensued.
DISCUSSION
I. Exclusion of Evidence
¶9. “The standard of review for either the admission or exclusion of evidence is abuse
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of discretion.” Pryer v. State, 958 So. 2d 818, 820 (¶5) (Miss. Ct. App. 2007) (quoting
Perry v. State, 904 So. 2d 1122, 1124 (¶7) (Miss. Ct. App. 2004)). “This Court will not
reverse an erroneous admission or exclusion of evidence unless the error adversely affects
a substantial right of a party.” Id. at 820-21 (¶5) (quoting Perry, 904 So. 2d at 1124 (¶7)).
¶10. On appeal, Vaughn argues that during the trial, the circuit court erred in failing to sua
sponte “enforce[] its ruling precluding [the admission of] hearsay . . . statement[s].” More
specifically, Vaughn argues that the circuit court should have excluded Denton’s testimony
because there was a lack of physical evidence showing that the person Denton called prior
to the “bust buy” was Vaughn or that Vaughn was the individual who sold the
methamphetamine to Denton. Vaughn points out that Denton admittedly orchestrated the
“bust buy” to avoid criminal charges against himself. Consequently, he insists that Denton’s
testimony was unreliable and constituted inadmissible hearsay that the circuit court should
have excluded.
¶11. Likewise, Vaughn insists that Investigator Raymond Duke’s testimony regarding
Brewer’s initial statement constituted inadmissible hearsay because when Brewer provided
her initial statement, she was implicated in a crime. Vaughn also insists that Brewer
provided the statement in response to police interrogation. Further, Vaughn argues that
Investigator Duke’s testimony regarding Brewer’s initial statement violated the principle set
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forth in Crawford v. Washington, 541 U.S. 36 (2004),2 because Vaughn was not given an
opportunity to cross-examine Brewer. Lastly, Vaughn argues that any reference to Brewer’s
statements was prohibited by the circuit court’s ruling on his motion to suppress.
¶12. In response, the State argues that the circuit court’s pretrial ruling only excluded
Brewer’s recorded statement and that it was Vaughn’s obligation to object to the admission
of any evidence regarding Brewer’s initial statement. The State contends that Vaughn’s
failure to raise a contemporaneous objection during Denton’s and Investigator Duke’s
testimonies bars his claims on appeal. The State also argues that the circuit court did not err
in failing to sua sponte exclude Investigator Duke’s testimony regarding Brewer’s initial
statement.
¶13. The State further argues that there was no Crawford violation because during the
trial, Brewer’s initial statement to law enforcement—that Vaughn tossed something out of
the window of the vehicle while he was being pursued—was not admitted into evidence.
The State, however, admits, as the record shows, that during its closing argument, the State
disclosed that officers learned from Brewer that Vaughn had tossed something from the car
before the arrest. But, the State points out that it was defense counsel who, during cross-
examination of Investigator Duke, elicited the identity of the person who tossed the items
2
In Crawford, the Supreme Court found that it is a violation of a defendant’s right
to confront witnesses against him for a court to admit “testimonial statements of a witness
who d[oes] not appear at trial unless [the witness is] unavailable to testify, and the defendant
had . . . a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54.
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out of the window of the car prior to the car being stopped by law enforcement officers.
Additionally, the State argues that Investigator Duke’s testimony concerning Brewer’s initial
statement was not hearsay because it was not offered into evidence to prove the truth of the
matter asserted.
¶14. During the hearing on Vaughn’s motion to suppress, the circuit court stated:
Well, first, the State has agreed that the video statement of Brewer is not
admissible[,] or they’re not going to seek to introduce [it] at this time . . .
unless something were to make it relevant during the course of trial[.] [A]nd
[the court] agree[s] that there[] [would] be a [C]onfrontation [Cl]ause problem
with providing any statements.
So to the extent [that Vaughn is] seeking to suppress the video statement of
. . . Brewer[,] that will be granted unless something else makes that admissible
during the course of the trial. Certainly, [she] would have to be . . . testifying
before that video statement would be admissible.
As it relates to . . . any evidence that law enforcement found on the side of the
road where the alleged sale took place, [the court will] just have to wait [until]
trial to see what evidence could make that relevant and make it admissible.
****
But . . . you’re certainly free to object to anything that comes up during the
course of the trial that you believe is inappropriate.
****
[The court is] going to withhold ruling on the admissibility of any evidence
that was found on the side of the road, but [the court will] grant the motion to
the extent that it excludes the video statement of Brewer.
¶15. During trial, in its opening statement, the State informed the jury:
In their investigation, [officers] learn[ed] from . . . Brewer that . . . Vaughn
had thrown some items out of the window of the car before [she] stopped for
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the police. You’re going to hear testimony from [Investigator] Duke . . . that
that night in the dark[,] [officers] looked to find some items that had been
thrown.
****
The next morning at daylight[,] they [went] back[,] and they searched[,] and
they [found] a wad of money on the side of the road[—]what would be on the
passenger’s side of the road.
¶16. During the State’s case-in-chief, Denton testified that on November 8, 2012, he was
arrested for possession of methamphetamine. He also testified that following his arrest, he
met with Detective Brett McAlphin, who asked him to arrange the “bust buy” with Vaughn.
Denton admitted that he agreed to do so in order to avoid criminal charges. He further
testified that he called Vaughn to set up the buy. According to Denton, after he organized
the transaction, Officer Tim Covington drove him, in an unmarked van, to the location of
the sale, where they met Vaughn, who was driving a red sports-utility vehicle (SUV).
Denton stated that after Vaughn arrived, he parked the SUV behind the van. Then, as
Officer Covington waited in the van, Denton walked to the driver’s side of the SUV and
purchased the methamphetamine from Vaughn. Denton further stated that when he returned
to the van, he gave the methamphetamine to Officer Covington. Vaughn failed to raise an
objection during Denton’s testimony.
¶17. During Investigator Duke’s testimony, the following colloquy took place:
STATE: Did you speak with [Brewer] at any point during -- concerning
why she was being arrested?
DUKE: Oh, absolutely.
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STATE: As part of your investigation and your talking to . . . Brewer,
were you able to determine if anything was thrown from the
vehicle?
DUKE: Based on my investigation, yes, items were thrown out of the
vehicle.
****
STATE: Okay[,] [a]fter you learned that something had been thrown
from that car, was any attempt made to recover anything that
may have been thrown from it?
DUKE: For an extended period of time, myself and other officers
[conducted a search—]even had some patrol guys come out to
assist[.]
****
STATE: Did you find anything that night?
DUKE: We did not find anything that night.
STATE: Was there any other effort made to locate anything that was
thrown from the car?
DUKE: The following morning[,] I put together a work detail. We went
out to the area in question. . . . We did locate some items[.]
STATE: Was there any money that was found?
DUKE: Yes.
¶18. In its closing arguments, the State informed the jury that “[n]obody had any idea
about the money being thrown out of the vehicle [until] they talked to . . . Brewer[,] who
was the driver [and who said], ‘[Vaughn] threw something out of the vehicle.’ Well, then
they go out and they look for it[.]” At that point, Vaughn objected, and the circuit court
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sustained the objection. Following the court’s ruling, the State proceeded with its closing
argument, informing the jury that “[the money] was in the woods at night. They find it. . .
. [Detective] McAlphin takes it. Guess what? . . . [It was] buy money that[] [was] found.”
After the State made those comments to the jury, Vaughn moved for a mistrial, and the
circuit court ultimately overruled that motion.
¶19. Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” M.R.E. 801(c). Here, Vaughn has failed to identify any hearsay statements made
by Investigator Duke during his testimony. While it clearly can be inferred from Investigator
Duke’s testimony, as set forth above, that he learned from Brewer that someone threw
something from the car, it cannot be legitimately argued that Investigator Duke testified that
Brewer told him that Vaughn tossed something from the car. While it is true that the State,
in its opening statement and closing argument, stated that Brewer told law enforcement
officers that Vaughn had tossed some items out of the car before she and Vaughn were
stopped by the officers, it is equally true that our jurisprudence is clear: statements of
prosecutors and defense counsel made during opening statements and closing arguments are
not evidence. See Slaughter v. State, 815 So. 2d 1122, 1130-33 (¶¶44-58) (Miss. 2002).
As the State correctly points out, the only statement as to the identity of the person who
threw the items out of the car came into evidence as a result of the following exchange
between Vaughn’s counsel and Investigator Duke:
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DEFENSE COUNSEL: Now [the prosecutor] stated that some objects
were discarded from that vehicle. Did you see
those objects being discarded[?]
DUKE: Did I see them being discarded? No, I did not.
DEFENSE COUNSEL: So you don’t know who discarded those objects
from the vehicle[?]
DUKE: Based on my investigation, it was your client.
And again, as the State points out, our law is well settled that a defendant cannot complain
about evidence that he himself elicits or otherwise causes to be brought out during the
course of his trial. Rogers v. State, 85 So. 3d 293, 296 (¶13) (Miss. 2012) (quoting Fleming
v. State, 604 So. 2d 280, 289 (Miss. 1992)).
¶20. As to Vaughn’s argument that the circuit court should have sua sponte disallowed the
evidence regarding Brewer’s statement because of the court’s pretrial ruling excluding that
evidence, it suffices to say that he has misread the court’s pretrial ruling. During the hearing
on Vaughn’s motion to suppress, the circuit court withheld its ruling on the admissibility of
any evidence regarding any items that were found on the side of the road as a result of the
search that was prompted by Brewer’s statement to the officers that Vaughn had thrown
some items from the vehicle before they were pulled over. In its ruling, the circuit court
ruled that Brewer’s video-recorded statement would not be admitted unless something
occurred during the trial that would make it admissible. However, the court said nothing
about the admissibility of Brewer’s initial statement that led to the search. The court
specifically advised defense counsel that he was “free to object to anything that [came] up
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during the course of the trial that [he] believe[d] [was] inappropriate.” As noted, Vaughn
failed to do so. “[A trial court] cannot be faulted for not ruling on an objection which was
not made[.]” Havard v. State, 928 So. 2d 771, 793 (¶39) (Miss. 2006). Therefore, this issue
has been waived.
¶21. Vaughn’s argument that Investigator Duke’s testimony regarding what the officers
learned after talking to Brewer amounts to a violation of his constitutional right of
confrontation as enunciated in Crawford is without merit. “The Confrontation Clause . . .
does not bar the use of testimonial statements for purposes other than establishing the truth
of the matter asserted.” Moore v. State, 1 So. 3d 871, 876 (¶20) (Miss. Ct. App. 2008)
(citations omitted). In this case, Investigator Duke’s testimony that he learned from Brewer
that some items were thrown out the window of the car was offered into evidence to explain
why the officers searched the area near the location of the arrest, not to prove the truth of
Brewer’s statement. Therefore, accepting Vaughn’s argument that a fair construction of
Investigator Duke’s testimony is that Brewer told officers that Vaughn threw some items out
of the car, we still find no Crawford violation because the statement was not offered to
prove that Vaughn threw the items out of the window.
II. Amendment of the Indictment
¶22. Citing Gowdy v. State, 56 So. 3d 540 (Miss. 2010), Vaughn argues that the
amendment of the indictment prejudiced his defense because the circuit court’s plea date
passed before the State moved to amend the indictment. Vaughn also argues that the
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amendment was prejudicial because the State did not provide him with adequate notice of
the motion to amend. Vaughn further argues that the amendment prejudiced his defense
because based on his belief that the State would not charge him as a habitual offender, he
rejected plea-bargain offers made by the State. In response, the State argues that because
Vaughn failed to object to the amendment, he cannot now claim that it prejudiced his
defense.
¶23. Rule 7.09 of the Uniform Rules of Circuit and County Court Practice states:
All indictments may be amended as to form but not as to the substance of the
offense charged. Indictments may also be amended to charge the defendant
as an habitual offender or to elevate the level of the offense where the offense
is one which is subject to enhanced punishment for subsequent offenses and
the amendment is to assert prior offenses justifying such enhancement[.]
Amendment shall be allowed only if the defendant is afforded a fair
opportunity to present a defense and is not unfairly surprised.
¶24. On March 21, 2013, the grand jury indicted Vaughn, charging him as a subsequent
offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013). Then, on
August 6, 2013, the State filed its motion to amend the indictment, requesting
that the indictment . . . be amended by inserting the following language[]:
The Defendant has been convicted twice previously upon
separate charges brought and arising out of separate incidents
at different times and has been sentenced to separate terms of
one (1) year or more in a state penal institution as shown by the
following:
That said Defendant has been convicted in the
Circuit Court of Rankin County, Mississippi[,] in
Cause No. 23170, for [c]onspiracy to [s]ell
[m]ethamphetamine and was sentenced to serve
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a term of ten (10) years in the custody of the
[MDOC] with nine (9) years to be suspended,
leaving one (1) year to serve followed by five (5)
years post[-]release supervision.
That said Defendant has been convicted in the
Circuit Court of Madison County, Mississippi[,]
in Cause No. 2010-0700, for possession of
methamphetamine and was sentenced to serve a
term of eight (8) years with six (6) years to be
suspended, leaving two years to serve followed
by five (5) years supervised probation.
As stated, the case went to trial on October 28, 2013.
¶25. In Gowdy, the Mississippi Supreme Court held that the trial court erred in “allowing
the State to amend the indictment after [the defendant had been] convicted[.]” Gowdy, 56
So. 3d at 546 (¶24). Gowdy is distinguishable from this case because, here, the circuit court
granted the amendment more than two months before this case went to trial. Additionally,
Vaughn has offered no evidence to support his argument that the amendment prejudiced his
defense, as the motion to amend clearly set forth Vaughn’s prior convictions, and he was
afforded an adequate opportunity to prepare. Vaughn has also failed to establish that he
refused plea offers based upon his belief that the State would not charge him as a habitual
offender. Therefore, this issue is without merit, and we affirm.
¶26. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF THE SALE OF METHAMPHETAMINE AND SENTENCE AS
A HABITUAL OFFENDER AND A SUBSEQUENT DRUG OFFENDER OF SIXTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY A $10,000 FINE IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
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LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL, FAIR AND
WILSON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
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