Andre Lenoir v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00328-COA
ANDRE LENOIR
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
10/2/2000
HON. KEITH STARRETT
LINCOLN COUNTY CIRCUIT COURT
LESA HARRISON BAKER
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
JAMES DANIEL SMITH
CRIMINAL - FELONY
POSSESSION OF AT LEAST 4.4 GRAMS OF
COCAINE WITH INTENT TO DISTRIBUTE SENTENCED TO SERVE A TERM OF TWENTYFOUR YEARS IN THE MDOC, THIS SENTENCE
WILL RUN CONSECUTIVELY TO ANY OTHER
SENTENCE GIVEN.
AFFIRMED: 8/19/2003
BEFORE KING, P.J., BRIDGES AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1.
Andre Lenoir was found guilty in the Lincoln County Circuit Court of possession of at least 4.4
grams of cocaine with intent to distribute. He was sentenced to serve a term of twenty-four years in the
custody of the Mississippi Department of Corrections, with this sentence to run consecutively to any other
sentence imposed. Aggrieved by his conviction, Lenoir has appealed and raised the following issues:
I. Whether the trial court erred in denying Lenoir's motion for judgment notwithstanding the verdict, or in
the alternative, a new trial.
II. Whether the trial court erred in allowing a supervisor from the Mississippi Crime Lab to testify as to
the report of another analyst who actually tested the substance in question.
FACTS
¶2.
On October 9, 1999, at approximately 12:24 a.m., the Lincoln County Sheriff's Department was
conducting a roadblock to check driver's licenses. Lenoir was a passenger in the vehicle driven by Williard
Breland, which approached the roadblock.
¶3.
Officer Lance Falvey, a deputy sheriff with the Lincoln County Sheriff's Department, asked Breland
for his driver's license. Breland indicated that he did not possess a valid driver's license. Upon noticing
a bulge in Breland's sock due to the way he was seated, Officer Falvey asked Breland what did he have
in his sock. Breland stated that it was a socket. At the officer's request, Breland handed the item to the
officer, who noticed that the socket was packed with a screen in one end. Officer Falvey indicated that
in its altered form, this item is known on the street as a crack pipe. At Officer Falvey's request, Breland
stepped out of the car and was placed under arrest.
¶4.
Once Breland was handcuffed, Officer Falvey instructed Lenoir "to place his hands on the
dashboard of the car and not to move." The officer asked Lenoir what was his name, but Lenoir did not
respond. As the officer attempted to approach the passenger side, Lenoir slid into the driver's seat, started
the engine, and fled the scene. Officer Falvey followed Lenoir. After the pursuit, Lenoir wrecked the car
and attempted to leave the scene on foot. After being apprehended, Lenoir was placed under arrest.
¶5.
After capturing Lenoir, Officer Falvey and another officer approached the wrecked car and
discovered "a large scattering of white rock like substance" over the entire front seat that was not seen in
the vehicle at the roadblock. Officer Falvey testified that "the seats were very clean" when he looked into
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the car at the roadblock. At trial, Officer Falvey indicated that he did not know where the substance came
from nor to whom it belonged.
¶6.
In January 2000, Lenoir was indicted for possession of at least 4.4 grams of cocaine with intent
to distribute.
¶7.
At trial on September 29, 2000, Lenoir was found guilty and sentenced to twenty-four years in the
custody of the Mississippi Department of Corrections, with this sentence to run consecutively to any other
sentence and ordered to pay a fine and court costs.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in denying Lenoir's motion for judgment
notwithstanding the verdict, or in the alternative, a new trial.
¶8.
Lenoir asserts that the trial court erred in denying his motion for judgment notwithstanding the
verdict, or in the alternative, a new trial.
¶9.
In reviewing the denial of a motion for judgment notwithstanding the verdict, or in the alternative,
a new trial, this Court adheres to the following:
The standard of review is the same for both directed verdicts and judgments
notwithstanding the verdict. This Court has set forth the standard as follows:
Once the jury has returned a verdict of guilty in a criminal case, we are not at
liberty to direct that the defendant be discharged short of a conclusion on our part that
given the evidence, taken in the light most favorable to the verdict, no reasonable,
hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.
The motion for a new trial, however, is a different animal. As distinguished from
a motion for directed verdict or a motion for judgment notwithstanding the verdict, a
motion for a new trial asks that the jury's guilty verdict be vacated on grounds related to
the weight, not sufficiency, of evidence. "We will not order a new trial unless convinced
that the verdict is so contrary to the overwhelming weight of the evidence that to allow it
to stand, would be to sanction an unconscionable injustice." Furthermore, "the Supreme
Court will reverse the lower court's denial of a motion for new trial only if, by denying, the
court abused its discretion."
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Sullivan v. State, 749 So. 2d 983 (¶¶24-25) (Miss. 1999) (citations omitted).
¶10.
In this case, Lenoir claims that the State failed to provide sufficient evidence that he possessed any
dominion and control over the controlled substance beyond a reasonable doubt. He maintains that the
vehicle did not belong to him nor to the driver and that the substance was not readily visible to him as a
passenger. Lenoir asserts that the officers who testified could not say that the cocaine belonged to him
because it was not found on his person. Lenoir suggests "that the force of the wreck of the vehicle caused
the cocaine to become the 'scattering' that the officers found." ¶11.
A charge of drug possession may
be based upon a showing of actual physical possession or constructive possession. Davis v. State, 817
So. 2d 593 (¶9) (Miss. Ct. App. 2002). Constructive possession requires that:
[T]here must be sufficient facts to warrant a finding that defendant was aware of the
presence of the particular substance and was intentionally and consciously in possession
of it. It need not be actual or physical possession. Constructive possession may be shown
by establishing that the drug involved was subject to his dominion or control. Proximity is
usually an essential element, but by itself is not adequate in the absence of other
incriminating circumstances.
Martin v. State, 804 So. 2d 967 (¶7) (Miss. 2001) (citation omitted).
¶12.
In this instance, the evidence shows (1) that Lenoir was a passenger in the vehicle, (2) when the
officer looked into the vehicle at the roadblock, the front seat was clean, (3) when the officer approached
the passenger side, Lenoir moved to the driver's seat, started the engine, and attempted to flee, (4) that
after Lenoir wrecked the vehicle, the officers found a white rock like substance scattered on the front seat,
and (5) that upon being asked whether he used cocaine, Lenoir stated that he was a user, not a seller.
¶13.
Accepting these facts as true, the jury could have reasonably found Lenoir to be in constructive
possession of cocaine. Because there existed reasonable evidence upon which a jury could have found
constructive possession, this Court finds no merit in this issue.
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II.
Whether the trial court erred in allowing a supervisor from the Mississippi
Crime Lab to testify as to the report of another analyst who actually tested the
substance in question.
¶14.
Lenoir asserts that the trial court erred in allowing the testimony of Monica Ardis from the
Mississippi Crime Lab as to the report of another analyst who actually tested the substance in question.
¶15.
Ms. Ardis was recognized as an expert witness pursuant to Mississippi Rule of Evidence 7021 in
the field of forensic science specializing in substance identification. The trial court indicated that pursuant
to Mississippi Rule of Evidence 703,2 experts are allowed to base their opinion on things reasonably used
by them to form these opinions. Ardis testified that she was a supervisor in the drug analysis unit and that
she trained Felicia Hobson, an ex-employee of the Mississippi Crime Lab who actually conducted the
substance tests. Ardis indicated that she reviewed all of Ms. Hobson's data. Lenoir raised an objection
to Ardis' testimony, stating that "Ms. Ardis did not conduct the chemical analysis, is not the person who
conducted the drug test." The objection was overruled.
¶16.
The State relied on Gray v. State, 728 So. 2d 36 (¶¶83-85) (Miss. 1998), which allowed DNA
supervisors who qualified as experts to testify regarding test results conducted by others in the lab. In the
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Mississippi Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise.
2
Mississippi Rule of Evidence 703 provides: The facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence.
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present case, the trial court recognized Ardis as an expert witness, who was an employee of the Mississippi
Crime Lab at the time the test was performed. Ms. Ardis trained the former employee that performed the
actual tests and supervised the former employee's work "on a regular basis." The trial court determined
that Ardis' testimony would be based on "the machine's reading and the notes of the analyst," and was
therefore admissible pursuant to Mississippi Rule of Evidence 703.
¶17.
The admissibility and relevancy of the evidence are within the discretion of the trial court and,
absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. McCoy v.
State, 820 So. 2d 25 (¶15) (Miss. Ct. App. 2002). This Court has previously held that such testimony
is admissible under these circumstances. Byrd v. State, 741 So. 2d 1028 (¶¶22-23) (Miss. Ct. App.
1999). Therefore, this Court finds that the trial court has not abused its discretion in allowing Ardis'
testimony.
¶18.
This Court notes that after trial, the jury returned a verdict of guilty. The court then proceeded to
dictate the sentence into the record, which read, "I hereby sentence you to a term of twenty-four (24) years
in the custody of the Mississippi Department of Corrections, direct that you pay a fine of $5,000.00 and
pay court costs. This will run consecutively to any other sentence."
¶19.
A formal sentencing order was entered on October 2, 2000, which provided, "[c]ame the district
attorney who prosecutes for the state and the defendant, in his own and proper person and represented
by counsel, who entered a plea of guilty on a former day of this regular term to a charge of possession of
at least 4.4 grams of cocaine with intent to distribute and being placed before the bar of the court and asked
if he had anything to say why sentence of the law should not be pronounced against him and he says naught.
It is therefore considered by the court and so ordered and adjudged that the said defendant for such his
crime of possession of at least 4.4 grams of cocaine with intent to distribute be sentenced into the custody
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of the Mississippi Department of Corrections for and during a space of twenty-four (24) years. This
sentence will run consecutive to any other sentence given." On March 25, 2002, this order was corrected
to show that Lenoir was convicted by a jury rather than having entered a plea of guilty.
¶20.
The corrected sentencing order entered nunc pro tunc March 25, 2002, provided, "[c]ame the
district attorney who prosecutes for the state and the defendant in his own proper person and represented
by counsel, who on a former day of this term of circuit court was found guilty by a jury of the charge of
possession of at least 4.4 grams of cocaine with intent to distribute. It is therefore ordered and adjudged
that the said defendant for such his crime of possession of at least 4.4 grams of cocaine with intent to
distribute be sentenced into the custody of the Mississippi Department of Corrections for and during the
space of twenty-four (24) years. This sentence will run consecutive to any other sentence given."
¶21.
We know of no authority which authorized the trial judge to enter an amended judgment in a
criminal case approximately eighteen months after the entry of the original sentencing order. The trial
court's action in this case was benign, intending only to correct the sentencing order to reflect that Lenoir
had not pled guilty as stated in the original sentencing order, but instead was convicted after a jury trial.
There was nonetheless, no authority which we have seen to allow this action on such a tardy basis. We
note however, that while there is no apparent authority for such action, it had
no substantive impact on the sentence received by Lenoir or the disposition of this case.
¶22. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND
SENTENCE OF TWENTY-FOUR YEARS TO BE SERVED CONSECUTIVELY TO ANY
OTHER SENTENCE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
LINCOLN COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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