Eddie Alexander v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-00887-COA
EDDIE ALEXANDER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/28/2003
HON. R. I. PRICHARD, III
LAMAR COUNTY CIRCUIT COURT
WILLIAM L. DUCKER
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CLAIBORNE MCDONALD
CRIMINAL - FELONY
SALE OR TRANSFER OF A CONTROLLED
SUBSTANCE - 40 YEARS, 30 YEARS TO
SERVE, 10 YEARS SUSPENDED, PLACED ON
POST-RELEASE SUPERVISION FOR 5 YEARS,
AND A FINE OF $10,000
AFFIRMED: 6/15/2004
BEFORE KING, C.J., BRIDGES, P.J., AND CHANDLER, J.
KING, C.J., FOR THE COURT:
¶1.
Eddie Alexander was tried and convicted in the Circuit Court of Lamar County for the sale of a
controlled substance pursuant to Mississippi Code Annotated Section 41-29-139. Aggrieved by his
conviction and sentence, Alexander appeals and raises the following issues, which we quote verbatim.
I.
The Court’s order overruling defendant Eddie Alexander’s motion to dismiss for
violation of constitutional right to a speedy trial.
II.
The Court’s allowing the amendment of the indictment by the [s]tate to enhance
punishment and make the defendant a second and subsequent offender on March 20,
2003, and on the morning of the trial, March 21, 2003, the Court also allowed another
amendment changing the date of the offense from June 22, 2000, to June 27, 2000.
This was done without notice to the defendant just prior to voir dire examination.
III.
The Court’s failure to sustain defense motion for mistrial at the conclusion of [s]tate
witness Shane Bound’s testimony
IV.
The Court’s sentence of thirty years is not commensurate with the crime punishable in
this case.
Finding no error, we affirm.
STATEMENT OF FACTS
¶2.
On June 27, 2000, three agents of the Mississippi Bureau of Narcotics were engaged in an
undercover drug operation in Lumberton. Shane Bounds, a confidential informant, made contact with
Eddie Alexander and told him he wanted to purchase a “40" of crack cocaine. Alexander agreed, and
Bounds told him to meet him at his father’s auto repair shop. Bounds was outfitted in an automobile
equipped with audio and video surveillance capability, and was given $40 to use for the purchase of the
crack cocaine. Alexander met Bounds at the repair shop, and after a brief conversation, Alexander
transferred three small rocks to Bounds, and the informant paid him $40, in a “hand-to-hand” exchange.
After the exchange, Bounds returned to the pre-determined location, to meet with the undercover agents.
The evidence was taken into custody, and the Mississippi State Crime Laboratory analysis conducted on
the rocks indicated that the substance was indeed .10 grams of crack cocaine.
¶3.
On March 9, 2001, Alexander was arrested and charged with sale of a controlled substance.
Alexander was bound over for the June 2001 term of the Lamar County grand jury, but he was not
indicted. The grand jury convened twice over the next fifteen months, but Alexander was still not indicted.
He remained free on bond, but was required to report to the circuit clerk’s office once a month.
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¶4.
On June 10, 2002, Alexander was formally indicted by the Lamar County Grand Jury, pursuant
to Mississippi Code Annotated Section 41-29-139, for the sale of .10 grams of cocaine, a Schedule II
controlled substance.
¶5.
On September 23, 2002, Alexander was brought before the trial judge, who set the trial for the
next Lamar County court term, in March 2003. At this time Alexander signed an “Order Continuing and
Pre-Setting Trial” and an “Acknowledgment of Right to be Arraigned.” These documents specifically
waived Alexander’s right to a speedy trial under the United States and Mississippi Constitutions, and
waived his right to be arraigned and tried within 270 days of that arraignment pursuant to Mississippi Code
Annotated Section 99-17-1. There were no motions or other matters brought before the court regarding
Alexander’s case at this time.
¶6.
On March 18, 2003, a motion hearing was held before the trial judge. Alexander had a number
of motions, including a motion to reveal the deal, agreement or understanding with state witness Shane
Bounds; a motion to suppress evidence; and a motion to compel interviews and complete criminal histories
of the State’s witnesses. The trial judge granted Alexander’s request to reveal the deal and requests for
interviews and criminal histories of the State’s witnesses, but denied his motion to suppress the evidence.
The trial judge also indicated, on the record, that the State was planning on filing a motion to enhance the
punishment based on Alexander’s previous convictions. At this time, Alexander also filed a motion
demanding a speedy trial, which was denied by the trial judge on March 20, 2003.
¶7.
On March 21, 2003, another motion hearing was held, where the State moved to amend the
indictment to change the date of the sale from June 22, 2000, to June 27, 2000. The State also made a
motion to enhance Alexander’s penalty, based on his status as an habitual offender, and pursuant to
Mississippi Code Annotated Section 99-19-81. Both of the State’s motions were granted, and trial
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proceedings began that same day. On March 21, 2003, a jury found Alexander guilty of transfer of .10
grams of a control II substance.
¶8.
On March 25, 2003, a bifurcated hearing was held pursuant to Mississippi Code Annotated
Section 41-29-147, to determine the status of Alexander as a second and subsequent offender. Alexander
was adjudged an habitual offender based on three previous convictions for possession of marijuana.
¶9.
At a March 28, 2003 sentencing hearing, the trial judge sentenced Alexander to forty years in the
custody of the Mississippi Department of Corrections, with thirty years to serve, ten years suspended, and
upon successful completion of that time, to five years on post-release supervision.
ISSUES AND ANALYSIS
I.
The Court’s order overruling defendant Eddie Alexander’s motion to dismiss for violation
of constitutional right to a speedy trial.
¶10.
A criminal defendant's right to a speedy trial is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and by Article 3, § 26 of the Mississippi Constitution of
1890, and Alexander asserts that the trial court erred in overruling his motion to dismiss the case because
his right to a speedy trial was violated. Alexander asserts that the constitutional clock began to run on
March 9, 2001, the day of his arrest. Approximately sixteen months elapsed between Alexander’s arrest
and indictment on June 10, 2002. An additional nine months elapsed between indictment and trial. This
period of twenty-five months is presumptively prejudicial, and in violation of his constitutional rights.
“When a defendant's constitutional right to a speedy trial is at issue, the balancing test set out in Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed.2d 101 (1972), is applicable.” Noe v. State, 616 So.
2d 298, 300 (Miss. 1993). Speedy trial issues are analyzed by applying the four factors detailed in Barker
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which include (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted
his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Skaggs v. State,
676 So. 2d 897, 900 (Miss. 1996). No single factor controls. Id. Furthermore, the court is not strictly
limited to consideration of the Barker factors. State v. Magnusen, 646 So. 2d 1275, 1278 (Miss. 1994).
“Alleged violations of the right to a speedy trial are decided on a case by case basis, weighing the facts and
circumstances and the conduct of the prosecution and the defense.” Elder v. State 750 So. 2d 540, 542
(¶ 7) (Miss. Ct. App. 1999) (citations omitted). To determine whether Alexander’s rights were violated,
this Court examines the Barker factors within the context of this case.
A. Length of Delay
¶11.
“The supreme court has held that the right to a speedy trial under the United States Constitution
attaches immediately upon the defendant's arrest.” Elder v. State, 750 So. 2d 540, 545 (¶ 10) (Miss. Ct.
App. 1999), citing Box v. State, 610 So. 2d 1148, 1150 (Miss. 1992). The court has also held that after
the defendant’s arrest, a delay of more than eight months before there is a trial is presumptively prejudicial
to the defendant, and volative of his right to a speedy trial. Id. This presumption can be rebutted by
balancing the remaining Barker factors. Handley v. State, 574 So. 2d 671, 676 (Miss.1990).
¶12.
To place this issue into perspective, this Court sets out the following chronology of events beginning
with the date of the criminal activity, and ending with Alexander’s trial and subsequent conviction.
June 27, 2000
March 9, 2001
June 10, 2002
September 23, 2002
March 18, 2003
Date of the sale of .10 grams of cocaine from Alexander to Bounds
Arrested for transfer of a controlled substance
Indicted on charge of transfer of a controlled substance
Order setting trial for March 9, 2003 and “Acknowledgment by
Defendant of Right to be Arraigned,” and “Order Continuing and PreSetting Trial” signed
Demand for speedy trial filed
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March 20, 2003
March 21, 2003
March 28, 2003
¶13.
Demand for speedy trial denied
Alexander convicted of transfer of a controlled substance
Alexander sentenced to thirty years to serve and ten years
suspended pending completion of the time served and five years of
post-release supervision
Alexander was arrested and charged with transfer of a controlled substance on March 9, 2001,
but was not tried for the offense until March 21, 2003. As 742 days, approximately 25 months elapsed,
between the arrest and the trial, the delay in the present case is presumptively prejudicial and triggers
consideration of the other Barker factors.
B. Reason for Delay
¶14.
Alexander argues that the reasons for the delay of his trial should be attributed to the State.
Alexander contends that the hospitalization of one of the State’s witnesses was not sufficient to establish
good cause for the State’s fifteen-month delay in indicting him. Alexander contends that the State had four
other witnesses who could have testified before the grand jury. Alexander contends that the State’s failure
to indict him was a tactical move to circumvent a possible 270-day problem under Mississippi Code
Annotated Section 99-17-1 (Rev. 2000), which requires the State to try a case within 270 days of the
indictment. Alexander also contends that the delay prejudicially affected his ability to develop an alibi
defense.
¶15.
The State bears the responsibility for bringing a defendant to a speedy trial. Turner v. State, 383
So. 2d 489, 491 (Miss. 1980). The State asserts that the reason for the delay in indicting Alexander was
due to the hospitalization and year-long recuperation period for Mississippi Bureau of Narcotics Agent
Bobby Patterson following a motor vehicle accident. Patterson was one of the three agents who facilitated
the undercover operation against Alexander. Patterson was the agent who took the evidence into custody
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during the operation. Alexander does not disagree that Agent Patterson was incapacitated and out on sick
leave for a year from the Bureau of Narcotics. However, Alexander argues that there were four other state
witnesses who could have presented the case at either of the two grand juries that were convened in the
fifteen months he was out on bond.
¶16.
We agree with Alexander, and find that the State could have used the three other officers who
were present during the undercover operation to present the case to the grand jury. Although Agent
Patterson did take the cocaine into custody, in grand jury proceedings it is not necessary to establish the
chain of custody, and further, hearsay testimony is allowed, and any of the other officers present could have
testified regarding the evidence Agent Patterson took into custody. See Clay v. State, 829 So. 2d 676,
680 (¶ 7) (Miss. Ct. App. 2002); Ex parte Jones County Grand Jury, First Judicial Dist., 705 So. 2d
1308, 1315 (¶ 32) (Miss. 1997).
¶17.
Therefore, we do not find good cause for the State’s failure to indict Alexander for fifteen months,
and accordingly the fifteen month delay is attributed to the State.
C. Defendant’s assertion of his right to a speedy trial
¶18.
Alexander contends that signing the “Acknowledgment by Defendant of Right to be Arraigned,”
and “Order Continuing and Pre-Setting Trial” did not effectively waive his right to a speedy trial. Alexander
asserts that he should not have been required to sign the forms, as he was in court requesting a trial date,
and that by requiring him to sign the forms, he was stripped of his right to assert a speedy trial violation.
However, Alexander acknowledges that all defendants in Lamar County are required to sign these
documents before leaving the courtroom on docket day, and should they decline to sign these documents
their case will be pre-set at the next available date. This statement by Alexander would appear to negate
his argument that he was prevented from seeking a speedy trial.
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¶19.
Alexander signed these two forms on September 23, 2002, and our examination of the record
reveals that on March 21, 2003, the trial judge stated, “That Eddie has up to this point in time waived
arraignment, waived speedy trial and he and Mr. Johnson are not ready for him to be arraigned.” There
was no objection from Alexander at this time.
¶20.
Further, Alexander never, in the two intervening years, between his arrest on March 9, 2001, and
his trial on March 18, 2003, filed a motion demanding a speedy trial. Alexander did not file a motion to
dismiss for violation of his right to a speedy trial until March 19, 2003, just days before the case was set
for trial. The trial judge denied this motion, stating that on September 23, 2002, Alexander had signed both
the “Order Continuing and Pre-Setting Trial” and an “Acknowledgment of Right to be Arraigned,” which
specifically waived his right to a speedy trial under the U.S. and Mississippi Constitutions.
¶21.
“Although it is the State's duty to insure that the defendant receives a speedy trial, a defendant has
some responsibility to assert this right.” Smith v. State, 812 So. 2d 1045 (¶ 11) (Miss. Ct. App. 2001)
(citation omitted).
¶22.
Since Alexander did not diligently pursue a speedy trial, this factor must weigh against him.
D. Prejudice to the defendant
¶23.
“The supreme court has held that prejudice is assessed in the speedy trial context (1) to protect
against oppressive pretrial incarceration, (2) for the minimization of anxiety and concern of the accused,
and (3) for the limitation of the possibility of impairment of the defense.” Elder v. State, 750 So. 2d 540,
545 (¶ 19) (Miss. Ct. App. 1999) (citation omitted). “The possibility of impairment of the defense is the
most serious consideration in determining whether the defendant has suffered prejudices as a result of
delay.” Sharp v. State, 786 So. 2d 372, 381 (¶ 19) (Miss. 2001).
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¶24.
When Alexander was indicted, on June 10, 2002, his right to a speedy trial re-attached. See State
v. Woodall, 801 So. 2d 678, 681 (¶ 8) (Miss. 2001). Therefore, we must look to the fifteen- month delay
between the arrest and Alexander’s indictment to determine if Alexander was denied his right to a speedy
trial. A two-prong test has been established to determine if a defendant’s constitutional right to a speedy
trial has been violated due to the State’s failure to expeditiously indict. Hooker v. State, 516 So. 2d
1349, 1351 (Miss. 1987). Under the Hooker test Alexander has the burden of proof to show that (1) the
pre-indictment delay caused actual prejudice and (2) such delay was intentional by the State to gain a
tactical advantage. Id.
¶25.
Alexander contends that he was prejudiced in the development of an alibi defense by the State’s
fifteen-month delay in indicting him. In light of the fact that Alexander admitted in the record that his defense
was one of “mistaken identity,” his theory of a possible alibi defense holds no weight, and is not a showing
of actual prejudice. Prejudice of such a speculative nature is not actual prejudice, and we can not find that
Alexander’s rights were violated based on mere conjecture. Regardless of the date, Alexander’s stated
defense would remain the same, that he was not the person that sold the drugs. The fact that Alexander was
required to report the circuit clerk’s office while he was out on bond, coupled with his assertion that the
delay in indicting him caused him prejudice in the preparation of an alibi defense is not a showing of actual
prejudice.
¶26.
We find no merit to Alexander’s contention that he was denied his constitutional right to a speedy
trial, and that he was prejudiced by the denial. Accordingly, we find no merit to this issue.
¶27.
The primary delay in this case is attributable to the State’s failure to indict Alexander for a fifteen
month period. The fifteen-month delay in indicting Alexander is counted against the State, and triggers an
analysis of the factors under the Hooker test. However, as Alexander can not show actual prejudice, or
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that the reason for the delay was a tactical advantage for the State, he fails to meet his burden of proof
under Hooker, and as such there is no merit to his assertion that he was denied his right to a speedy trial.
F. Conclusion
¶28.
Having applied the Barker and Hooker factors, to the facts and circumstances of this case, we
find that Alexander’s constitutional right to a speedy trial was not violated.
¶29.
Alexander was indicted on June 10, 2002. On September 23, 2002, he waived arraignment, and
requested a trial date. The trial judge set the case for trial in March 2003, which was the next Lamar
County Circuit Court term. The statutory right to a speedy trial is counted from the date of arraignment,
or from the waiver of arraignment. Because less than 270 days elapsed between the waiver of arraignment
on September 23, 2002, and the trial in March 2003, there is no violation of the statutory right to a speedy
trial.
II.
The Court’s allowing the amendment of the indictment by the state to enhance punishment
and make the defendant a second and subsequent offender on March 20, 2003, and on the
morning of the trial, March 21, 2003, the Court also allowed another amendment changing the
date of the offense from June 22, 2000, to June 27, 2000. This was done without notice to the
defendant just prior to voir dire examination.
¶30.
Alexander asserts that the trial court erred when it granted the State's motion to amend the
indictment to add that he was a second and subsequent offender, and to change the date of the offense from
June 22, 2000 to June 27, 2000. Alexander argues that these amendments were substantive matters, and
as such they required the consent of the grand jury. Alexander asserts that by amending the indictment the
day of the trial, he was not prepared to face additional charges concerning his background, and was further
prejudiced because he was denied the “possibility of establishing an alibi defense for June 27, 2000.”
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¶31.
“[A] change in the indictment is permissible if it does not materially alter facts which are the essence
of the offense on the face of the indictment as it originally stood or materially alter a defense to the
indictment as it originally stood so as to prejudice the defendant's case.” Givens v. State, 730 So. 2d 81,
87 (¶ 20) (Miss. Ct. App. 1998), citing Shelby v. State, 246 So. 2d 543, 545 (Miss. 1971).
“The well-established test in this jurisdiction for determining whether the defendant is prejudiced by the
amendment depends on whether a defense under the original indictment would be equally available under
the amended indictment.” Id. (citations omitted) “If both the defense and the evidence remain unhindered
after amending the indictment, then the amendment is considered to be an amendment of form rather than
substance.” Id. (citations omitted).
¶32.
The portion of Rule 7.09 relevant to the amendment of the indictment reads:
All indictments may be amended as to form but not as to the substance of the offense
charged. . . . Amendment shall be allowed only if the defendant is afforded a fair
opportunity to present a defense and is not unfairly surprised.
URCCC 7.09
¶33.
Rule 7.06(5) of the Uniform Rules of Circuit and County Court provides that “[f]ailure to state the
correct date shall not render the indictment insufficient.” Furthermore, Section 99-7-21 of the Mississippi
Code allows the court to “cause the indictment to be forthwith amended” to cure any formal defect. Miss.
Code Ann. § 99-7-21 (Rev. 2000). “Although Rule 7.09 denies the trial court authority to make
substantive amendments of indictments, the Mississippi Supreme Court has observed that amending the
date of the alleged offense is a change of form only where time is not an essential element or factor in the
indictment.” Givens, 730 So. 2d at 87 (¶ 19) (citation omitted).
¶34.
The facts in the record indicate that Alexander never filed an alibi defense for June 22, 2000, and
that his defense was one of “mistaken identity.” Nothing in the record indicates that Alexander intended to
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present a time-specific defense, such as alibi. Alexander’s sole point of contention is that his chance for an
alibi defense was removed when the State changed the date, because he had no independent recollection
of events that occurred on June 27, 2000. The trial judge stated in his order that Alexander had the same
defenses available to him regardless of his status as a subsequent offender and regardless of the date.
“Reversal is not necessary where the same defense and the same witnesses are available for both the
original date and the amended date on the indictment.” Id. (citations omitted). We find that the amendments
to Alexander’s indictment were of form rather than substance, and that his defense under the amended
indictment remained the same.
¶35.
Accordingly, we find no merit to this issue.
III.
The Court’s failure to sustain defense motion for mistrial at the conclusion of State
witness Shane Bound’s testimony.
¶36.
Alexander contends that the trial court erred in not granting a mistrial because a witness for the
State unfairly introduced evidence of other crimes, and it unfairly prejudiced the jury. On crossexamination Shane Bounds, the confidential informant, who facilitated the buy from Alexander, was
questioned regarding a conversation he had with Alexander’s attorney, and the following testimony was
elicited:
Q: [Attorney for Alexander]
Now, I’m going to ask you , remind you of a couple of
things. You and I, as a matter of fact, we met about two
weeks ago, didn’t we?
A: [Shane Bounds] Uh-huh (indicating yes).
Q: And you will recall that you and I had, I think two, maybe three telephone conferences,
before that?
12
A: Yes, sir.
Q: Friendly conferences, weren’t they?
A: Yeah.
Q: You and I didn’t have any problems ?
A: No.
Q: And you will recall that I told you that I wasn’t trying to talk you into anything, I wasn’t
trying to talk you out of anything?
A: Right.
Q: I believe those were the exact words that I used. Did you have any problem with me?
A. No, not really. I didn’t want to tell y’all that I was----had to work for them. I felt
scared for----if y’all knew.
Q: Well, that’s actually going to be my next question. The fact is you told me point blank
that it wasn’t Eddie [Alexander] that sold you anything, didn’t you?
A: Right.
Q:You told me that?
A: No. I said on that statement that you have that I didn’t----I couldn’t honestly
remember.
Q: Mr. Bounds, actually the first time we talked was almost a year ago?
A: Yeah.
Q: And in that conversation we weren’t talking about the tape?
A: Right.
Q: I mean a statement.
A: Right.
13
Q: I was just asking you point blank as one human being to another and do you remember
telling me that Eddie didn’t sell you any dope?
A: No.
Q: You don’t remember saying that?
A: No, not that long ago.
Q: Okay. All right. But you do remember me and you meeting and you told me that, right?
A: Right, yes, sir.
Q: You told me point blank that Eddie didn’t sell you anything?
A: Yes, sir.
Q: There was an intervening conversation, there was a conversation a long time ago and
then I think there was one little short, do you remember that?
A: No.
Q: Okay. You’re under quite a bit of pressure to testify, aren’t you?
A: Yes, sir.
Q: I mean you feel the pressure?
A: Yes, sir.
Q: Do you recall telling me when we met at the BRC that you told me that you had been
told that the State would send you to prison if you didn’t testify against Eddie Alexander,
do you remember telling me that?
A: Yeah.
Q: Now, I have to ask you were you lying then or are you lying now?
A: No.
Q: You weren’t lying either?
A: No.
14
Q: Either time. Well, see, I don’t see how that could be true both times.
A: Why is that?
Q: I don’t understand how you could tell me that Eddie Alexander didn’t sell you anything.
¶37.
On re-direct examination, Bounds again identified Alexander as the man that he brought the cocaine
from. The State then asked Bounds the following questions:
Q: All right. Now, ever since Mr. Alexander’s been arrested for this charge, how many
times has he come into [sic] see you?
A: I couldn’t honestly say. It’s been a number of times.
Q: A number of times since he was arrested?
A: Yes, ma’am.
.
.
.
.
Q: Now, during the times that Mr. Alexander came to see you alone, did he talk to you
about the charge that he had?
A: Yes, ma’am.
Q: Were you afraid of him?
MR. JOHNSON [attorney for Alexander]: Your honor I am going to object to
leading, leading this witness.
THE COURT: I will overrule at this point in time.
Q: Were you afraid of Mr. Alexander?
A: Yes, ma’am.
Q: And what did you base that?
A: When I------I was always a little nervous on that, because I didn’t know if he knew
anything or nothing in that situation. But at one point when he met me he said that a guy
was------named Kurt was down from New Orleans, because he had hit two guys, so that
means knocked off, that he could pay him $3,000, have the same done to me.
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Q: So when you told Mr. Johnson that Mr. Alexander didn’t have anything to do with
selling you the drugs, why did you tell him that?
A: Because I felt if I told him that, that he might go ahead and have that done. I was
scared. I was just trying to get him off the property, a nice way without telling him just to
get off my property.
Bounds then indicated that the conversation with Alexander “about the hit man” occurred before Johnson
ever came to see him. Alexander then requested permission to re-cross in light of this new information. The
trial judge granted the request, but stated, “What’s new about it, you asked him if he told you that and he’s
got a right to explain why he did.” A bench conference was held before the re-cross examination, and the
assistant district attorney indicated that she had called Alexander’s attorney and put him on notice that
Alexander had threatened Bounds, and that Alexander must be kept away from Bounds.
¶38.
On re-cross examination Bounds indicated that he had reported the incident to Agent Patterson,
but had not filed a police report regarding the alleged threat. Based on this testimony Alexander made a
motion for a mistrial due to the supposed prejudicial nature of Bounds testimony on re-direct.
¶39.
Rule 404(b) of the Mississippi Rules of Evidence states: “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show that he acted in conformity therewith
. . . .” M.R.E. 404(b).
¶40.
“Relevancy and admissibility of evidence are largely within the discretion of the trial court, and
reversal may be had only where that discretion has been abused.” White v. State, 742 So. 2d 1126 (¶ 29)
(Miss. 1999). “Furthermore, the trial court's discretion must be exercised within the scope of the
Mississippi Rules of Evidence, and reversal will be appropriate only when an abuse of discretion resulting
in prejudice to the accused occurs.” Id.
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¶41.
Alexander’s counsel asked numerous questions regarding Bound's statements to him. In doing so,
Alexander opened the door for questions on re-direct regarding the statement. Jackson v. State, 766 So.
2d 795, 807 (¶ 37) (Miss. Ct. App. 2000) (citations omitted). The State's question was in direct response
to an issue raised in Jackson's cross-examination; thus, it was proper re-direct. The Mississippi Supreme
Court has held:
The trial court has broad discretion in allowing or disallowing redirect examination of
witnesses. When the defense attorney inquires into a subject on cross-examination of the
State's witnesses, the prosecutor on rebuttal is unquestionably entitled to elaborate on the
matter. . . . Because these matters were all brought out on cross-examination, we find the
trial court did not abuse its discretion in allowing redirect examination on the matters.
Jackson v. State, 766 So. 2d at 807 (¶ 37) (internal citations omitted).
¶42.
The record is conclusive that Alexander opened the door for the testimony Bounds gave on re-
direct-examination. The trial judge did not abuse his discretion in allowing the prosecutor to give Bounds
an opportunity to explain the impeaching statements he made to Alexander’s counsel.
¶43.
Accordingly, we find no merit to this issue.
IV.
The Court’s sentence of thirty years is not commensurate with the crime punishable in this
case.
¶44.
Alexander asserts that a sentence of forty years, with ten years suspended was excessive for the
sell of .10 grams of cocaine. Alexander contends that his sentence is an unusually heavy penalty for
someone selling such a small amount of cocaine, and it is not commensurate with the crime punishable in
this case. Alexander also points out that sentences across the state vary widely for the sale of a small
amount of cocaine, and the state needs to adopt more uniform sentencing guidelines, such as those available
in federal court.
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¶45.
What Alexander fails to mention in his brief is that the trial court adjudged him to be a habitual
offender, pursuant to Mississippi Code Annotated Section 41-29-147, which permits a doubling of the
sentence where it can be shown that a defendant has prior drug offenses. The State introduced certified
copies of three prior convictions, and the authenticity was not disputed by Alexander. On September 22,
1997, Alexander pled guilty to a charge of possession of marijuana. On June 22, 1998, Alexander again
pled guilty to a charge of possession of marijuana in a motor vehicle. Finally, on November 23, 1998,
Alexander once again pled guilty to a charge of possession of marijuana.
¶46.
Alexander’s argument was that all his prior convictions were misdemeanors, and should not have
been used to enhance his punishment. Alexander’s counsel stated in the record that he was fully aware that
the trial court could use misdemeanors to enhance his sentence under the law, but that he did not think this
was a proper case to use the enhancement statute.
¶47.
The record clearly reflects that Alexander’s prior drug offenses qualified him as a habitual offender
pursuant to Mississippi Code Annotated Section 41-29-147. As all three convictions could be used to
enhance Alexander’s punishment he could have received a maximum sentence of sixty years, and as such
the trial judge was well within his statutory authority to sentence Alexander to thirty years in the custody
of the Mississippi Department of Corrections.
¶48.
Accordingly, we find no merit to this issue.
¶49. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF
CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND ENHANCED SENTENCE
AS A SECOND AND SUBSEQUENT OFFENDER OF FORTY YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED,
FIVE YEARS OF POST-RELEASE SUPERVISION AND A FINE OF $10,000 IS HEREBY
AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.
BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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