Jimmy Lee Daniels v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00127-COA
JIMMY LEE DANIELS A/K/A JIMMY DANIELS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
11/14/2007
HON. DAVID H. STRONG, JR.
PIKE COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: LISA LYNN BLOUNT
DEE BATES
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF AT
LEAST TEN GRAMS BUT LESS THAN
THIRTY GRAMS OF COCAINE WITHIN
1,500 FEET OF A PLAYGROUND AND
SENTENCED TO THIRTY YEARS WITH
FOURTEEN YEARS SUSPENDED,
SIXTEEN YEARS TO SERVE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, FIVE
YEARS OF POST-RELEASE SUPERVISION,
AND TO PAY A $10,000 FINE
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 05/12/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On June 15, 2006, James Kenneth Cotton, a Mississippi Bureau of Narcotics (MBN)
agent, received a tip that Jimmy Lee Daniels was selling cocaine from a red Jaguar at the
Community Parks Apartments in McComb, Mississippi. Agent Cotton and another agent,
Sheldon Jolliff, drove to the apartments and witnessed Daniels sitting in a red Jaguar. Agent
Jolliff recognized Daniels from a prior encounter. The agents drove around the block and
parked behind Daniels. Daniels exited the car and began walking quickly toward the
apartments. The agents did not see anyone else besides Daniels in or near Daniels’s car. The
agents stopped Daniels and informed him that they had information alleging that he was
selling drugs. Daniels agreed to talk to the agents, handed them his driver’s license, and gave
them consent to search his car. Agent Jolliff testified that Daniels became more nervous after
handing the agents his car keys.
¶2.
Daniels then fled the scene. Agent Cotton chased him and Agent Jolliff stayed with
the car. Agent Jolliff proceeded to search Daniels’s car, finding a brown bag on the driver’s
seat which contained five smaller bags of a substance later identified as powder cocaine and
rocks of crack cocaine. A set of digital scales was found under the driver’s seat. Daniels’s
car was parked less than 1,500 feet from a playground. The car in question was registered
to Daniels’s aunt, Janice Todd, who was unaware of the drug activity in her car. Agent
Cotton failed to catch Daniels, but he was eventually arrested.
¶3.
A jury in the Pike County Circuit Court convicted Daniels of possession of at least ten
grams but less than thirty grams of cocaine within 1,500 feet of a playground. Daniels was
sentenced, based on a sentence enhancement provision in Mississippi Code Annotated
section 41-29-142 (Rev. 2005), to thirty years, with sixteen years to serve in the custody of
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the Mississippi Department of Corrections, fourteen years suspended, five years of postrelease supervision, and to pay a $10,000 fine. Daniels now appeals, asserting the following
issues: (1) the trial court erred by failing to properly instruct the jury on the elements of
constructive possession; (2) the trial court erred in sentencing him under the sentence
enhancement provisions of section 41-29-142; (3) the trial court erred in failing to grant a
directed verdict; (4) the verdict was against the overwhelming weight of the evidence; and
(5) the trial court erred in failing to dismiss the indictment on the basis of double jeopardy.
Finding no error in regard to issues 1, 3, 4, and 5, we affirm Daniels’s conviction. However,
finding that the trial court erred in sentencing Daniels, we remand for re-sentencing.
DISCUSSION
I.
INSTRUCTION ON THE ELEMENTS OF CONSTRUCTIVE
POSSESSION
¶4.
In his first issue on appeal, Daniels argues that the trial court did not properly instruct
the jury on the elements of constructive possession. Daniels contends that instruction S-6
did not instruct the jury on an essential element of constructive possession. It is well-settled
law that an appellate court does not review jury instructions in isolation; instead, we consider
them as a whole to determine if the jury was properly instructed on the law. Milano v. State,
790 So. 2d 179, 184 (¶14) (Miss. 2001). When read as a whole, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found.
Phillipson v. State, 943 So. 2d 670, 671 (¶5) (Miss. 2006). However, the record shows that
Daniels failed to object to the instruction. “To preserve a jury instruction issue on appeal,
the defendant must make a specific objection to the proposed instruction to allow the trial
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court to consider the issue.” Harris v. State, 861 So. 2d 1003, 1013 (¶18) (Miss. 2003)
(citing Crawford v. State, 787 So. 2d 1236, 1244-45 (¶35) (Miss. 2001)). We find that this
issue is procedurally barred.
II.
¶5.
SENTENCE ENHANCEMENT
In his second issue on appeal, Daniels argues that the trial court incorrectly applied
the sentence enhancement provision found in section 41-29-142. Section 41-29-142 doubles
the statutory sentence for a violation of Mississippi Code Annotated section 41-29-139(a)(1)
(Rev. 2005), the sale or possession with intent to sell a controlled substance, if the violation
occurred within 1,500 feet of a park or school.
¶6.
Although Daniels was indicted pursuant to section 41-29-139(a)(1), the jury found
him guilty under section 41-29-139(c)(1)(D), possession of more than ten grams but less than
thirty grams of cocaine. There is no sentence enhancement provision for crimes committed
under this particular statute, regardless of if the crime occurred within 1,500 feet of a school
or park. The State concedes that Daniels was improperly sentenced. We find that the trial
court erred in sentencing Daniels under the enhancement provisions and remand for resentencing pursuant to the statute.
III.
¶7.
DIRECTED VERDICT
In his third issue on appeal, Daniels argues that the trial court erred in failing to grant
a directed verdict. Daniels specifically alleges that the evidence was insufficient to support
the verdict. A motion for a directed verdict challenges the sufficiency of the evidence. Bush
v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he critical inquiry is whether the
evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged,
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and that he did so under such circumstances that every element of the offense existed.’” Id.
(citation omitted). If, viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found, beyond a reasonable doubt, the essential elements of
the crime existed, this Court will affirm the denial of a motion for a directed verdict. Id. If
we find that reasonable, fair-minded jurors could have concluded that the defendant was
guilty of the accused crime, the evidence will be deemed sufficient. Id.
¶8.
To establish possession, “there must be sufficient facts to warrant a finding that
defendant was aware of the presence and character of the particular substance and was
intentionally and consciously in possession of it.” Hamm v. State, 735 So. 2d 1025, 1028
(¶11) (Miss. 1999) (quoting Curry v. State, 249 So. 2d 414, 416 (Miss. 1971)). In the
absence of actual physical possession, the State must show constructive possession. Williams
v. State, 971 So. 2d 581, 587 (¶16) (Miss. 2007). “Constructive possession is established by
showing that the contraband was under the dominion and control of the defendant.” Id.
(quoting Roberson v. State, 595 So. 2d 1310, 1319 (Miss. 1992)).
¶9.
We find that there was sufficient evidence for reasonable, fair-minded jurors to
conclude that Daniels was guilty of possession. Agent Cotton received a tip that Daniels was
selling cocaine from a red Jaguar at the Community Parks Apartments. Upon arriving at the
apartments, Agent Cotton and Agent Jolliff saw a man sitting alone in a red Jaguar. Agent
Jolliff recognized the man as Daniels from a prior encounter. The agents testified that
Daniels had the car keys and gave them consent to search the car. Daniels then fled the
scene. Agent Jolliff found a brown paper bag containing five separate bags of cocaine on the
driver’s seat and a set of digital scales under the driver’s seat.
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¶10.
Although Daniels testified that the car did not belong to him and that he had not been
sitting in it, the jury clearly found the testimony of the two MBN agents more credible. The
jury reasonably inferred that Daniels was sitting in a car with a bag of cocaine near his
person. “The jury is charged with the responsibility of weighing and considering conflicting
evidence, evaluating the credibility of witnesses, and determining whose testimony should
be believed.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct. App. 1999). We find that
there was sufficient evidence to support the guilty verdict; thus, this issue is without merit.
IV.
¶11.
WEIGHT OF THE EVIDENCE
In his fourth issue on appeal, Daniels argues that the verdict was against the
overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial
based on an objection to the weight of the evidence, we will only disturb a verdict when it
is so contrary to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). “[T]he evidence
should be weighed in the light most favorable to the verdict.” Id.
¶12.
A reversal on the grounds that the verdict was against the overwhelming weight of the
evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was
the only proper verdict.” Id. (quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)).
Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the
jury’s resolution of the conflicting testimony. Id.
¶13.
Viewing the evidence in the light most favorable to the verdict, we find that the
verdict was not against the overwhelming weight of the evidence. Testimony at trial
presented a factual dispute for the jury’s resolution. The MBN agents testified that Daniels
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was seated in the car, and they found cocaine on the seat vacated by Daniels. The MBN
agents testified as to Daniels’s demeanor as they moved to search his car. They stated that
Daniels began acting nervous and then fled the scene. Daniels and another witness testified
that Daniels was not sitting in the car, did not own the car, and had no knowledge of the
cocaine. Although he was not the owner of the car, Daniels was the only occupant of the car
and had the keys to the car. Weighing the evidence in the light most favorable to the verdict,
we cannot find that allowing the verdict to stand would sanction an unconscionable injustice.
This issue is without merit.
V.
¶14.
DOUBLE JEOPARDY
In his final issue on appeal, Daniels argues that the trial court erred in failing to
dismiss the indictment on the basis of double jeopardy. In Daniels’s first trial, Agent Cotton
testified that Daniels surrendered his driver’s license prior to running from the agents. The
prosecution had failed to disclose this information to Daniels prior to trial. Daniels moved
for a mistrial, and the trial court granted his motion. Daniels filed a motion to dismiss his
indictment prior to his second trial. After a hearing on the matter, the trial court found no
prosecutorial misconduct that would warrant a dismissal of the charge.
¶15.
As Daniels requested the mistrial, he is generally barred from asserting a double
jeopardy violation. Jenkins v. State, 759 So. 2d 1229, 1234 (¶17) (Miss. 2000). However,
the supreme court has stated the following:
In order to elevate an order granting a mistrial in a criminal case at the request
of the defendant to one which could form the basis of a claim of double
jeopardy, it must be shown not only that there was error, which is the common
predicate to all such orders, but that such error was committed by the
prosecution or by the court for the purpose of forcing the defendant to move
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for the mistrial.
Carter v. State, 402 So. 2d 817, 821 (Miss. 1981). In other words, “[w]ithout proof of
judicial error prejudicing the defendant, or ‘bad faith prosecutorial misconduct,’ double
jeopardy does not arise.” Jenkins, 759 So. 2d at 1234 (¶17) (internal citation omitted).
¶16.
Daniels claims that the prosecution consciously failed to disclose this evidence to him
prior to trial. The State admitted to having knowledge of the evidence prior to Agent
Cotton’s testimony. During the motion hearing, the prosecutor stated that he learned of
Daniels’s surrender of his driver’s license during a lunch recess at his first trial. The
prosecutor stated that this occurred shortly before Agent Cotton’s testimony. The prosecutor
said that he had not intended to use the information concerning the surrender of the driver’s
license because Agent Jolliff had previously identified Daniels during his testimony. In
ruling on the motion to dismiss, the trial court found that the prosecution had not deliberately
provoked a mistrial, namely because the facts presented favored a guilty verdict. The trial
court stated that “this is a case where the State simply inadvertently failed to disclose
evidence which may or may not have even had a significant impact on this case.” Daniels
has failed to show either judicial error prejudicing him or bad faith prosecutorial misconduct.
This issue is without merit.
¶17. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF MORE THAN TEN GRAMS BUT LESS THAN
THIRTY GRAMS OF COCAINE WITHIN 1,500 FEET OF A PLAYGROUND IS
AFFIRMED. THE SENTENCE IS REVERSED, AND THIS CASE IS REMANDED
FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO PIKE COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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