Andrew Lee Day v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01303-COA
ANDREW LEE DAY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
03/09/1999
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
CARL L. SOUSER
OFFICE OF THE ATTORNEY GENERAL
BY: WAYNE SNUGGS
DISTRICT ATTORNEY:
CONO A. CARANNA II
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
SALE OR TRANSFER OF CONTROLLED SUBSTANCE,
COCAINE: SENTENCED TO TWENTY YEARS IN THE
CUSTODY OF THE MDOC.
DISPOSITION:
AFFIRMED-3/19/2002
MOTION FOR REHEARING FILED: 4/19/2002; denied 6/11/2002
CERTIORARI FILED:
MANDATE ISSUED:
7/2/2002
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
KING, P.J., FOR THE COURT:
¶1. Andrew Lee Day was convicted of the sale or transfer of a controlled substance by the Circuit Court of
Harrison County and sentenced to twenty years in the custody of the Mississippi Department Corrections.
Aggrieved, Day has appealed and raised three issues which we cite verbatim:
I.
The Defendant's Trial Counsel was ineffective;
II.
The Court erred in denying Defendant's motion to exclude the admission of the State's
Exhibit 1, the substance and the testimony of Alison Smith, Mississippi Crime Lab. The
State failed to establish a legal and sufficient chain of custody;
III.
The sentence was an abuse of the Court's sentencing discretion and was disproportionate to
the crime and as such constitutes cruel and inhuman treatment in violation of the Eighth
Amendment.
FACTS
¶2. On February 13, 1998, the Costal Narcotics Enforcement Team (CNET) conducted an undercover
narcotics operation. Kevin Brazil was the undercover officer involved in the drug transactions. Robert
Young was the case agent who oversaw the operation: distributing the money, recording the transactions
and securing and labeling the evidence recovered. Officer Brazil drove a truck equipped with an audio
transmitter and a video recorder. A man, identifying himself as "Red,"and later identified as Andrew Lee
Day, met with Officer Brazil. On February 13, 1998, Day was recorded in the vehicle with Officer Brazil
on three occasions. On the last occasion, Day produced something from his mouth. Because of a power
failure, the video recorder did not capture any exchange between Day and Brazil. Officer Brazil turned the
substance over to Officer Young who bagged and labeled it. Later, the substance was transported to the
crime lab for drug analysis. Allison Smith, a forensic scientist with the Mississippi Crime Laboratory in
Gulfport, testified that the substance was cocaine.
¶3. On October 28, 1998, Day was indicted in the Circuit Court of the Second Judicial District of Harrison
County for transfer of a controlled substance, in violation of Miss. Code Ann. § 41-29-139(1) (Rev. 2001)
. On February 1, 1999, Day waived arraignment and entered a plea of not guilty.
¶4. At Day's trial, begun on March 9, 1999, the State offered the testimony of Officers Brazil and Young,
and Allison Smith. Brazil and Young testified regarding the audio and visual recordings of the transaction
between Officer Brazil and Day and the disposition of the substance alleged to have been attained from
Day. Both acknowledged that there was no visual recording of an exchange of money for drugs. However,
Brazil testified that he purchased cocaine from Day. Allison Smith of the State Crime Lab at Gulfport
testified as to the receipt of a substance for analysis which proved to be cocaine.
¶5. Day's counsel objected to the admissibility of the videotape and the drug and its chemical analysis. After
presentation of the State's case-in-chief, Day moved for a directed verdict based upon the "State's failure to
establish a prime facie case of transfer of a controlled substance because the recording [did] not show a
hand to hand transaction." This motion was denied.
¶6. Day then rested without calling any witnesses. The jury found Day guilty of "sale or transfer of a
controlled substance, to wit, cocaine."
¶7. During sentencing, Day's counsel argued that the proof failed to establish that Day was a drug dealer,
and that the trial court should reserve "the upper limits [of sentences] should be left for those who commit
the more egregious crimes." Day was sentenced to twenty years in the custody of the Mississippi
Department of Corrections.
¶8. On December 17, 1999, the court denied Day's motion for a new trial and allowed substitution of
appellate counsel.
I.
Whether the Defendant's trial counsel was ineffective.
¶9. Day alleges that his trial counsel was ineffective thereby depriving him of a fair trial. He alleges that this
ineffectiveness manifested itself in his counsel's failure to prepare and investigate prior to trial; the failure to
make pre-trial motions; the failure to obtain or review discovery; the failure to meet with Day except on two
occasions prior to trial; the failure to object to the prosecution's presentation of Day's prior convictions and
pending charges during sentencing; and the failure to offer mitigating circumstances during the sentencing.
¶10. To establish a prime facie case of ineffective assistance of counsel, the defendant has the burden to
demonstrate (1) that the performance of counsel was deficient and (2) that the defendant was prejudiced by
counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted by the
Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468, 476- 77 (Miss. 1984). See also
McQuarter v. State, 574 So. 2d 685, 687 (Miss.1990). In judging counsel's effectiveness, the totality of
circumstances of each case must be considered. McQuarter, 574 So. 2d at 687.
¶11. This totality of circumstances must be considered in conjunction with the "strong but rebuttable
presumption that counsel's conduct falls within a broad range of reasonable professional assistance." Id. The
presumption is overcome if the defendant demonstrates "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
"In addition to the presumption that counsel's conduct is reasonably professional, there is a presumption that
counsel's decisions are strategic in nature, rather than negligent." Marshall v. State, 759 So. 2d 511 (¶ 9)
(Miss. Ct. App. 2000).
¶12. We have divided Day's allegations of ineffective assistance of counsel into two categories: (1)
counsel's actions prior to trial and (2) counsel's actions during trial.
Counsel's actions prior to trial
¶13. Day tells this Court that counsel should have (1) investigated the case prior to trial, (2) made pre-trial
motions, (3) obtained discovery, and (4) met with him with greater frequency prior to trial. He suggests that
had these things been done, his attorney would have known that a proper chain of custody was not
established on the cocaine.
¶14. There is no merit to this suggestion. A sufficient chain of custody was established through the
testimonies of Brazil, Young and Smith. Unless there is reason to believe that the evidence offered has been
tampered with, or is otherwise not the same, it is not necessary to call each and every person who handled
it. Ormond v. State, 599 So. 2d 951, 959 (1992). Indeed, Day's attorney raised this issue, and it was
properly overruled by the trial court.
¶15. The Mississippi Supreme Court has determined "that the fact that [defendant's] attorney conferred
with him only once does not, in and of itself, establish ineffective assistance of counsel." Walker v. State,
703 So. 2d 266 (¶ 9) (Miss. 1997). The court held in Harveston v. State, 597 So. 2d 641, 642 (Miss.
1992), that "complaints of ineffective assistance of counsel, because [an] attorney failed to make pretrial
investigation and to spend more time with [client], are insufficient as a matter of law." Therefore, Day's claim
of ineffective assistance of counsel based on the counsel's failure to meet more often with him is without
merit.
¶16. In Powell v. State, 536 So. 2d 13, 16 (Miss. 1984), the court held that "the mere fact that the
attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel
claim." The Powell court determined that "'the filing of pre-trial motions falls squarely within the ambit of
trial strategy.'" Id. (quoting Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984)). This Court does not
normally, and will not do so here, second guess counsel's trial strategy. Marshall, 759 So. 2d at (¶ 11).
Counsel's actions during trial
¶17. Day contends that admission of evidence of his prior convictions and other charges at sentencing were
improper, and subject to objection. However, Day has failed to present authority to establish that the
presentation was objectionable and therefore improper for the court to consider. This Court does not
generally address alleged error which is unsupported by citation to proper authority. Taylor v. State, 744
So. 2d 306 (¶ 46) (Miss. Ct. App. 1999).
¶18. Day asserts that his counsel should have offered mitigating evidence during sentencing. However, Day
fails to inform this Court what, if any, mitigating factors existed that might have been argued by his counsel.
The record establishes that Day's counsel stated: "the upper limits should be left for those who commit the
more egregious crimes. Not to say that selling cocaine is not an egregious crime, but Your Honor, we're
talking about one rock of cocaine." This remark appears to be an effort at mitigation. Day fails to establish
what other evidence could have been offered in mitigation.
¶19. Our review of the record indicates that counsel's performance remained "within the wide range of
reasonable conduct." McQuarter, 574 So. 2d at 687.
II.
Whether the Court erred in denying Defendant's motion to exclude the admission of the
State's Exhibit 1, the substance and the testimony of Alison Smith, Mississippi Crime Lab.
The State failed to establish a legal and sufficient chain of custody.
¶20. In his second assignment of error Day attacks the sufficiency of the chain of custody of the substance
identified as cocaine. He suggests that there are breaks in the chain which make receipt of the evidence
unreliable. At trial Day argued that the chain of custody was broken by the failure to present the testimony
of (1) the party transporting the drug to the lab and (2) the person receiving the drug at the lab.
¶21. The record contains testimony, without objection, as to the transportation and receipt of the cocaine.
That testimony was sufficient to establish the chain of custody. Ormond, 599 So. 2d at 959. As a part of
the chain of custody, Day also questions the condition of the cocaine. He suggests that the officers testified
to the receipt of a rock of cocaine, while that received by the lab and offered into evidence was crushed.
¶22. The record reflects that the substance to be identified by the lab was sealed and marked for
identification. When it was received at the lab, the seal and the identifying marks were intact, and showed
no signs of tampering. In the absence of an indication of tampering, the trial court correctly admitted the
evidence.
¶23. "The chain of custody of evidence in the control of the authorities is usually determined within the
sound discretion of the trial judge, and unless this judicial discretion has been so abused as to be prejudicial
to the defendant, this Court will not reverse the rulings of the trial court." Bruce v. State, 746 So. 2d 901
(¶54) (Miss. Ct. App. 1999) (quoting Nixon v. State 336 So. 2d 742, 744 (Miss. 1976)). There is a
presumption of regularity favoring chain of custody conducted by police officers. Barnes v. State, 763 So.
2d 216 (¶16) (Miss. Ct. App. 2000).
¶24. Where the State has produced evidence as to the chain of custody and the improbability of tampering,
the burden shifts to the party opposing the evidence to establish that it has been tampered with. Williams v.
State, 794 So. 2d 181 (¶10) (Miss. 2001). Day has failed to meet that burden.
¶25. Day seeks to expand his attack on the chain of custody by presenting for the first time on appeal
matters not offered at trial. This Court will not review evidence for the first time on appeal. Hogan v. State,
741 So. 2d 296 (¶7) (Miss. Ct. App. 1999). The parties have an obligation to first present all relevant
evidence to the trial court; the failure to do so precludes this Court's consideration of that information.
Walker v. State, 671 So. 2d 581, 591- 92 (Miss. 1995).
¶26. "The Mississippi Supreme Court has consistently held that decisions are based on the 'facts shown in
the record, not assertions in the brief.'" Henderson v. State, 783 So. 2d 769 (¶4) (Miss. Ct. App. 2001).
"Facts asserted to exist must and ought to be definitely proved and placed before [the Court] by a record,
certified by law; otherwise, we cannot know them." Mason v. State, 440 So. 2d 318, 319 (Miss.1983).
"When no proper record is submitted, this Court will not place the trial court in error based merely upon
assertions in appellant's brief." Henderson 783 So. 2d at (¶4).
III.
Whether Day's sentence was an abuse of the Court's sentencing discretion and was
disproportionate to the crime and as such constitutes cruel and inhuman treatment in
violation of the Eighth Amendment.
¶27. This last assignment of error was not presented to the trial court and is therefore procedurally barred.
Smith v. State, 729 So. 2d 1191 (¶173). Nonetheless, this Court has reviewed the record and finds no
merit in this argument. Day alleges that the trial court abused its discretion by imposing a sentence that was
disproportionate to the crime charged. Day argues that his sentence is unfair compared to other cases in
other jurisdictions and because he is a first time drug offender, and the quantity of cocaine was small. In
support of his argument, Day cites Solem v. Helm, 463 U.S. 277 (1983), that his sentence was grossly
disproportionate to the crime he committed and therefore violates the Eighth Amendment right against cruel
and inhuman punishment.
¶28. As a general rule, this Court will not disturb a sentence so long as it does not exceed the maximum
term authorized by statute. Williams v. State, 784 So. 2d 230 (¶13) (Miss. Ct. App. 2001). This Court
reviews the proportionality of a sentence under the Eighth Amendment using the three-prong analysis set out
in Solem, 463 U.S. at 290-92. Williams, 784 So. 2d at (¶14). Nevertheless, the Solem analysis is
applicable "only when a threshold comparison of the crime committed to the sentence imposed leads to an
inference of 'gross disproportionality.'" Williams, 784 So. 2d at (¶15). (citing Smallwood v. Johnson, 73
F.3d 1343, 1347 (5th Cir. 1996)).
¶29. This Court does not address the Solem three-prong analysis absent an initial showing of gross
disproportionality. Sentencing is thus left within the sound discretion of the trial court and will not be
disturbed if it falls within the statutory options. Id. at (¶12).
¶30. The punishment for Day's violation is covered by Mississippi Code Annotated § 41-29-139(b)(1)
(Rev. 2001), which provides
In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113
and 41-29-115, except one (1) ounce or less of marihuana, and except a first offender as defined in
Section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1)
kilogram but more than one (1) ounce of marihuana, such person may, upon conviction, be
imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars
($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both . . . .
The statutory maximum sentence is thirty years and up to one million dollar fine. Day received a sentence of
twenty years and no fine. Day's sentence was under the statutory maximum and not on its face
disproportionate to the offense. Since there is no showing of gross disproportionality, the Solem threeprong analysis is inapplicable to the case at bar.
¶31. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT CIRCUIT COURT OF
HARRISON COUNTY OF CONVICTION OF SALE OR TRANSFER OF COCAINE AND
SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL IS
ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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