Ronald Cagler v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01900-COA
RONALD CAGLER
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
10/19/2001
HON. R. I. PRICHARD, III
PEARL RIVER COUNTY CIRCUIT COURT
JAMES L. GRAY
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CLAIBORNE MCDONALD
CRIMINAL - FELONY
POSSESSION OF A CONTROLLED
SUBSTANCE, SECOND AND SUBSEQUENT
OFFENDER - SENTENCED TO 16 YEARS AND
AFTER SUCCESSFUL COMPLETION OF THE
SERVICE OF 10 YEARS, THE REMAINING 6
WILL BE SUSPENDED.
AFFIRMED: 04/08/2003
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
On June 6, 2000, the grand jury of Pearl River County indicted Ronald Cagler for the offense of
simple possession of .5 gram of cocaine. In April 2001, the assistant district attorney made a motion to
amend the indictment to charge Cagler as a second or subsequent offender under section 41-29-147 of
the Mississippi Code of 1972. This motion was not heard until the day of the trial, October 18, 2001.
However, before trial Cagler filed a motion to suppress illegally obtained evidence which was overruled
by the trial judge. On the day of trial, Cagler was tried and found guilty on the charge in the initial
indictment. Soon thereafter, the court proceeded to enter an order allowing the State to amend its
indictment, but no amended indictment was ever prepared or served upon the defendant. A hearing on
whether Cagler was a second or subsequent offender was continued until the next day, October 19, 2001.
The court later found Cagler to be a second and subsequent offender, and subsequently he was convicted
on the simple possession charge in the original indictment and as a second and subsequent offender as in
the amended indictment. Cagler also filed a motion for a new trial which was later denied. The court
sentenced Cagler to a term of sixteen years, with six years to be suspended, and ten years to serve. He
now appeals to this Court.
STATEMENT OF ISSUES
I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED THE PETITIONER'S MOTION
TO SUPPRESS THE EVIDENCE.
II. WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO GIVE JURY INSTRUCTION
D-2.
III. WHETHER THE TRIAL JUDGE ERRED WHEN HE GRANTED THE STATE'S MOTION TO
AMEND THE INDICTMENT.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR
A MISTRIAL.
V. WHETHER THE TRIAL JUDGE ERRED DURING VOIR DIRE TO THE EXTENT THAT
CAGLER WAS DENIED A FAIR TRIAL.
FACTS
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¶2.
On or about July 31, 1999, Ronald Cagler was driving a blue Plymouth Colt automobile traveling
south on South Beech Street in Picayune, Mississippi. Officer Anthony Brian Clark, who was at the time
employed by the City of Picayune as a patrolman, noticed the vehicle operated by Cagler was emitting a
considerable amount of exhaust and proceeded to pull the vehicle over. Cagler's vehicle contained only
one other passenger who, after being stopped by officer Clark, asked permission to leave the scene and
was later granted permission. After pulling over the vehicle, Cagler exited the vehicle and proceeded to
hand over his driver's license to the officer. Officer Clark returned to his patrol car to check the validity
of the license only to find that Cagler's license had been suspended due to his failure to appear in court.
¶3.
Subsequently, Officer Clark placed Cagler under arrest for operating a vehicle without the proper
equipment and driving with a suspended license. During the arrest, Officer Clark handcuffed Cagler and
then proceeded to pat him down. In his pat down, Officer Clark found a wallet and after opening it, found
a plastic bag containing a leafy green substance, later determined by the Mississippi Crime Lab to be
marijuana,
¶4.
There is dispute, however, as to exactly where the bag was found within the wallet. There is also
a disagreement as to what the officer did with the bag after it was discovered. Cagler and another witness
testified Officer Clark threw the bag onto the hood of the defendant's vehicle, whereas Officer Clark
testified that he placed the bag in his front uniform pocket. Thereafter, Officer Clark transported Cagler
to the Picayune Criminal Justice Center where he was handed over to the jailer and later strip searched.
Officer Clark testified that he took the bag of green leafy substance to the squad room where he placed
it into an evidence bag to be labeled and put into an evidence locker.
¶5.
Officer Clark also testified that it was at this point in time when he noticed another bag inside the
bag taken from Cagler's wallet. Officer Clark testified that, after opening the bag, he discovered a small
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white rock-like substance, which was also later determined to be cocaine by the Mississippi Crime Lab.
Officer Clark testified that he placed the second bag in a separate evidence bag, tagged both bags and put
them into the evidence locker. Cagler testified that after the strip search, Officer Clark reappeared and
informed him that he had been charged with possession of crack cocaine, which he denied, and also that
Officer Clark had the bag with him when he informed Cagler of the new charge. Cagler freely admitted
to carrying the marijuana and that he purchased it right before being pulled over by Officer Clark, but
adamantly denied there was another bag.
ANALYSIS
I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED THE PETITIONER'S MOTION
TO SUPPRESS THE EVIDENCE.
¶6.
The United States Supreme Court in Ornelas v. U.S., 517 U.S. 690 (1996), has held that, as a
general matter, determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal. The court then hastened to point out that a reviewing court should take care both to review
findings of historical fact only for clear error and to give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers. Id. When determining the existence of probable
cause, trial judges should take a "totality of the circumstances" approach. McNeal v. State, 617 So. 2d
999, 1006 (Miss 1993). The trial judge should consider "factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians, act." Id. In essence the court should
examine probabilities and not technicalities.
¶7.
Probable cause requires information that would reasonably lead an officer to believe that, then and
there, contraband or evidence to a criminal investigation would be found. Rooks v. State, 529 So. 2d 546,
555 (Miss. 1988).
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¶8.
Just as the trial court found, Cagler's vehicle in this matter, was stopped because of excessive
smoke emanating from it. By virtue of Sections 63-7-55 and 63-7-7 of the Mississippi Code of 1972, as
amended, the legislature intended for a vehicle to be in proper working order and should not constitute a
danger to any person or the public as it operates upon any road or highway. The trial court further found
that the uncontroverted testimony of the officer, that smoke was emanating from Cagler's car in such a
fashion and in such an amount, constituted probable cause, under the above referenced section of the
Mississippi Code, to stop the vehicle and obtain both the identity of the driver as well as the license status
of that driver.
¶9.
The trial judge correctly stated in his order that because Cagler was arrested for a suspended
licence after the stop, the search of the defendant goes beyond a Terry search, Terry v. Ohio, 392 U.S.
1 (1968) (where a police officer has a reasonable and articulable suspicion that a suspect is armed and
dangerous he, may, without probable cause, perform a pat-down search for concealed weapons) and
instead reaches the level of Robinson, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973) (when an offense authorizes a full custodial arrest, a search incident to that arrest may
follow, even where police do not fear for their safety or believe contraband will be found). The officer
involved had every right to search for foreign objects on Cagler and it was also reasonable for the officer
to open the wallet of the defendant to determine if there were any foreign objects which would endanger
the safety of the officer. By opening the wallet to the fullest extent, the officer discovered a bag containing
a green leafy substance believed to be marijuana and it was this very bag that was later discovered to
contain another bag containing cocaine.
¶10.
For these reasons and in accordance with the aforementioned case law, the actions taken by the
officer are found to be within reason under the totality of the circumstances approach used when
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determining the existence of probable cause. The stop and search were proper and therefore Cagler's
claim, that the trial court erred when it denied his motion to suppress, is without merit.
II. WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO GIVE JURY INSTRUCTION
D-2.
¶11.
It is the trial judge's responsibility, not the jury, to determine the admissibility of the fruits of the
search. Holt v. State, 348 So. 2d 434, 439 (Miss. 1977). It is also a question of law for the trial judge
and not the jury to determine whether or not a search warrant was properly issued. Salisbury v. State,
293 So. 2d 434, 438 (Miss. 1974). "It is admissible in the record only to show that there was probable
cause for the issuance of the writ. The evidence before the trial judge is not to be again offered before the
jury." Id. See Sisk v. State, 290 So.2d 608 (Miss. 1974). In the case of Heidel v. State, 587 So. 2d
835, 842 (Miss. 1991), the court stated:
A defendant is entitled to have jury instructions given which present his theory of the case,
Murphy v. State, 566 So.2d 1201, 1206 (Miss. 1990); Young v. State, 451 So.2d 208,
210 (Miss.1984); however, this entitlement is limited in that the court may refuse an
instruction which incorrectly states the law, is covered fairly elsewhere in the instructions,
or is without foundation in the evidence. Murphy, 566 So.2d at 1206.
¶12.
Instruction D-2 accurately states the law, in as much it tells the jury that evidence obtained through
an illegal search cannot be considered evidence and that a search must be reasonable and limited in scope.
The inaccurate part of Jury Instruction D-2 charges the jury that it is its function to determine whether or
not the search was to find weapons on Cagler or to prevent Cagler from destroying evidence. The
instruction also inaccurately states that the jury must not consider the evidence if it finds that the search was
not for either one of those purposes. Again, as stated in Holt, it is not the responsibility of the jury, but the
trial judge, to determine whether or not the search was supported by probable cause. Holt, 587 So. 2d
at 842.
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¶13.
Cagler was not entitled to an instruction that did not accurately state the law. Therefore, the trial
judge was correct in denying Jury Instruction D-2 and Cagler's claim is without merit.
III. WHETHER THE TRIAL JUDGE ERRED WHEN HE GRANTED THE STATE'S MOTION TO
AMEND THE INDICTMENT.
¶14.
Cagler argues that he was not served a copy of the amended indictment, and he did not have time
to prepare to argue against amending the indictment. He also alleges that he was pardoned for the prior
conviction, and had he more time to prepare , he could have proven the pardon.
¶15.
In the case of Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929), the court said: "Every
court of record has general authority over its own records. The power of such a court to correct its records
so as to make them speak the truth is inherent. The records of a court can be corrected or altered only by
the court itself; and another court has no authority to make such corrections, even though it has appellate
jurisdiction over the court whose records are sought to be corrected."
¶16.
Getting to the amendment itself, an indictment can be amended when the amendment goes to form
and not to substance. Burson v. State, 756 So. 2d 830 (¶ 14) (Miss. Ct. App. 2000). When deciding
whether an amendment goes to form or substance, this Court looks to see if the defenses the defendant had
originally are equally available to the defendant after the amendment is made. Eakes v. State, 665 So.
2d 852, 859-60 (Miss. 1995). After looking at the record in this case it becomes clear the same defenses
were available to Cagler after the indictment was amended as were available before the amendment.
Cagler would have the same defenses available to him in this case whether he was a repeat offender or not.
For this reason, the amendment in this case goes to form and not to substance, and thus would be allowed
under Mississippi law.
¶17.
Rule 7.09 of the URCCC reads as follows:
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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 fairly surprised.
Therefore, the trial court was not in error in allowing Cagler's indictment to be amended to reflect his repeat
offender status.
¶18.
In addition, the State's motion to amend the indictment was filed six months prior to trial. On
October 16, 2001, a notice was prepared and served by the State noticing a hearing on the motion to
Amend Indictment for October 18, 2001, the day of the trial of Cagler. On the day of the trial, defense
counsel asked for and received a continuance until 11:00 a.m. the next morning. Cagler's claim that he did
not have time to prepare therefore fails. The court granted defense counsel a generous amount of time to
prepare for the hearing concerning the motion for an amended indictment. At the sentencing hearing, it was
proven that Cagler had been previously convicted of distributing a controlled substance. Defense counsel
did not even object to the admission of proof of the prior conviction.
¶19.
Defense counsel claims that had he been given adequate notice of the amended indictment and time
to prepare he would have discovered that Cagler had been pardoned for the prior offense. Cagler could
have told his counsel that Louisiana had given him a pardon for his conviction, but he did not. Cagler had
sufficient time to confer with his attorney. Cagler did not assert that he had received a pardon when he filed
a motion for a new trial. Even at his sentencing hearing, Cagler was asked by the court if he wished to say
anything before sentencing was imposed. Cagler responded, "No, sir." At that moment, Cagler could have
mentioned his pardon, but he did not.
¶20.
Cagler has clearly failed to demonstrate an error by the trial court when it allowed the indictment
to be amended.
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IV. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR
A MISTRIAL.
¶21.
Cagler alleges that the trial judge erred when he overruled Cagler's motion for a mistrial. He claims
that a person on the venire gave answers to a question that "poisoned the entire jury pool.
¶22.
In Grayson v State, 806 So. 2d 241, 253 (Miss. 2001), the court held that the standard of review
applicable to decisions of whether to grant a mistrial based upon voir dire statements of potential jurors is
abuse of discretion. The court stated in Hoops v. State, 681 So. 2d 521, 528 (Miss. 1996), that generally
speaking, a defendant can not complain when damaging and inappropriate testimony is given in response
to his question. The Mississippi Supreme Court stated in Perkins v. State, 600 So.2d 938 (Miss.1992),
that the trial judge "is in the best position for determining the prejudicial effect" of an objectionable remark.
The determination of whether or not a juror is fair and impartial is a judicial question and will not be set
aside unless it is clearly wrong. Taylor v. State, 672 So. 2d 1246, 1246 (Miss. 1996).
¶23.
In Grayson, the defendant made no objection when the comment was made. Grayson, 806 So.
2d at 253. Only after voir dire was concluded did the defendant make a motion for a mistrial claiming the
comment was inflammatory. Id. The court in Grayson neither admonished the jury to disregard the
statement nor did the court ask the prospective jury members at the time whether they would be able to
disregard the statement. Id. This decision was later affirmed by the Mississippi Supreme Court. In
Saucier v. State, 328 So. 2d 355, 357-58 (Miss. 1976), the Mississippi Supreme Court also held that
a motion for a mistrial came too late when the party waited until a jury had been impaneled.
¶24.
In accordance with the aforementioned caselaw, the judge did not abuse his discretion when he
overruled Cagler's motion for a mistrial. The comments made by the potential juror, Brasington, were
apparently honest responses to the question asked by defense counsel. The response given was not such
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that the entire jury panel was "poisoned" so they could not decide fairly and impartially the case evidence
before them. Defense counsel did not even make an objection to Brasington's statement at the time it was
made. After the response was given, the trial judge suggested defense counsel ask Brasington if the
information given would destroy her impartiality to judge the case. Additionally, Cagler waited until voir
dire was concluded, the challenges for cause and peremptory strikes had been made, and the jury selected
before he made his motion for a mistrial. According to Saucier, this just is not allowed. Cagler could have
easily made his motion for a mistrial during voir dire while the court and the parties could still ask questions
in order to determine the feelings and beliefs of the potential jurors. That fact, combined with the brief
nature of the comment, suggests that it was not so prejudicial as to warrant a mistrial, and the trial court did
not abuse its discretion in denying that motion.
V. WHETHER THE TRIAL JUDGE ERRED DURING VOIR DIRE TO THE EXTENT THAT
CAGLER WAS DENIED A FAIR TRIAL.
¶25.
Cagler alleges that numerous acts by the trial judge during voir dire denied him a fair trial. His
arguments include: (1) the judge did not give counsel ample opportunity to determine the identity and
background of two jurors, Karen Jackson and Ruby Twillie, who were absent during voir dire; (2) the
judge improperly interrupted defense counsel when he asked questions during voir dire about family
members and friends who had been charged with drug problems; (3) the judge again interrupted defense
counsel's questioning of Doreen Wallace; and (4) Cagler alleges but never discusses reversible error due
to the racial content of the jury pool.
¶26.
As to Cagler's first and final claims of this issue, that he was denied opportunity to investigate the
identity and background of two African Americans absent from jury service and that there was reversible
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error due to the racial content of the jury pool, the Mississippi Supreme Court has held and still holds today
that "a party who fails to object to the jury's composition before it is empaneled waives any right to
complain thereafter." Bell v. State, 725 So. 2d 836, 844 (Miss. 1998); Hunter v. State, 684 So. 2d 625,
631 (Miss. 1996); Myers v. State, 565 So. 2d 554, 557 (Miss. 1990); Pickett v. State, 443 So. 2d 796,
799 (Miss. 1983). Objections to these two claims were not timely raised by the defense counsel, and as
such, the objections are considered waived.
¶27.
In dealing with Cagler's second and third claim, concerning the trial judge's interruptions during
questioning, the Mississippi Supreme Court in Evans v. State, 725 So. 2d 613, 651 (Miss. 1998), stated
that trial courts have the responsibility to control voir dire, but in doing so must take care not to hinder full
exploration of juror's predispositions. In addition, "the line between a proper and improper question is not
always easily drawn; it is manifestly a process in which the trial judge must be given a considerable
discretion." Harris v State, 532 So. 2d 602, 606 (Miss. 1988); Murphy v. State, 246 So. 2d 920, 922
(Miss. 1977). This discretion includes passing upon the extent and propriety of questions addressed to the
prospective jurors. Rigby v. State, 826 So. 2d 694,( ¶43) (Miss. 2002); Jones v. State, 381 So. 2d 983,
990 (Miss. 1980).
¶28.
However, this discretion is not unlimited, and an abuse will be found where "clear prejudice to the
accused results from undue constraint on the defense or undue lack of constraint on the prosecution."
Jones, 381 So. 2d at 990. In conclusion, one of the purposes of voir dire examination is "to enable counsel
to ascertain whether there is ground for a challenge of a juror for cause, or for a peremptory challenge."
Jackson v. State, 791 So. 2d 830, 836 (¶24) (Miss. 2001).
¶29.
In claiming that the court unfairly limited his questioning, Cagler has failed to demonstrate that the
trial judge denied him a fair trial. The judge noted that many of the potential jurors raised their hands when
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asked if any had family members or close friends who had ever been charged with a drug crime. It was
clearly reasonable to ask counsel to narrow his question. Therefore, there was no abuse of discretion to
consider.
¶30.
In regards to the interruptions in the questioning of Doreen Wallace, the trial judge was responding
to Wallace saying she would have a problem being impartial knowing people were out there giving drugs
to children and students. The questions asked by the judge appeared to be seeking information that would
allow the court and counsel to determine whether or not they should strike her as a juror. Nothing was said
regarding the thoughts of the judge on whether he regarded Cagler as guilty. The record is clear that the
judge was trying to ensure the defendant received a fair and impartial jury and not the other way around.
¶31. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE, SECOND AND
SUBSEQUENT OFFENDER, AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SIX YEARS SUSPENDED
ON POST-RELEASE SUPERVISION FOR FIVE YEARS, AND PAY $340.63 IN
RESTITUTION IS AFFIRMED. ALL COSTS TO THIS APPEAL ARE ASSESSED TO PEARL
RIVER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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