Ronald Scott Westbrook v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-01209-COA
RONALD SCOTT WESTBROOK
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
5/21/2004
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
MOSE LEE SUDDUTH, JR.
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CRIMINAL - FELONY
GUILTY OF COUNT I, SALE OF
HYDROCODONE, AND COUNT II SALE OF LESS
THAN ONE OUNCE OF MARIJUANA AND
SENTENCED TO CONSECUTIVE TERMS OF
TWENTY-TWO YEARS AND THREE YEARS AND
ORDERED TO PAY COURT COSTS AND A FINE
OF $5000..
AFFIRMED: 10/4/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Ronald Scott Westbrook was convicted of the sale of hydrocodone (count I) and the sale or
delivery of less than one ounce of marijuana (count II). For count I, Westbrook was sentenced to serve
twenty-two years in the custody of the Mississippi Department of Corrections and ordered to pay a fine
of $5,000 plus all court costs. For count II, Westbrook was sentenced to serve three years. The
sentences were to run consecutively, for a total of twenty-five years to serve. On appeal, Westbrook
asserts that: (1) he received ineffective assistance of counsel, (2) the district attorney committed
prosecutorial misconduct during closing arguments, and (3) his sentence was improper and excessive. We
find no error and affirm.
FACTS
¶2.
On March 4, 2003, a confidential informant (“CI”) met with Officer Steve Hatcher and two other
officers with the Lowndes County Sheriff’s Office Narcotics Unit to arrange for the CI to make three drug
buys. One of the buys included Westbrook. Officer Hatcher searched the CI and his truck, provided him
with purchase money, and fitted him with audio/visual equipment. The CI had known Westbrook for
approximately one year. He drove to Westbrook’s trailer to “make the deal.” ¶3.
While inside
Westbrook’s trailer, the CI asked Westbrook if he had any Lortabs for sale. Westbrook responded that
he did and offered to sell three tablets for $6.00 each. The CI gave Westbrook $20 for three tablets, and
Westbrook handed him the pills. Westbrook then pulled out a sack of a “green leafy material” and gave
the CI several joints. The CI then left Westbrook’s trailer.
¶4.
At a post-buy meeting, the CI gave Officer Hatcher the drugs he had purchased from Westbrook.
Officer Hatcher took the audio/visual equipment and again searched the CI and his truck before allowing
him to leave. The audio/visual equipment was entered into evidence and played for the jury. The State’s
expert witness identified the pills as hydrocodone and the “green leafy material” as marijuana.
¶5.
A jury found Westbrook guilty of sale of hydrocodone and sale or delivery of marijuana.
Westbrook filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which
was denied by the trial court.
ANALYSIS
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I.
¶6.
Did Westbrook receive ineffective assistance of counsel?
Ineffective assistance of counsel claims must meet the standard of Strickland v. Washington, 466
U.S. 668 (1984). To prevail, Westbrook must demonstrate that his counsel's performance was deficient
and that this deficiency prejudiced his defense. Id. at 687. The burden of proof rests with Westbrook.
McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990).
¶7.
Westbrook lists several deficiencies in his trial counsel’s performance. He specifically points us
to his counsel’s failure to: object during voir dire, demand that the video tape from the drug buy be shown
in full, and object to the denial of his jury instructions. He claims these deficiencies prejudiced his defense.
However, as circuit court judge James T. Kitchens, Jr. noted during the hearing on the motion for judgment
notwithstanding the verdict or, in the alternative, a new trial,
Mr. Westbrook was convicted . . . on the strength of a videotape and a confidential
informant who testified that he had, in fact, purchased hydrocodone and had received or
the marijuana had been delivered to him by Mr. Westbrook. There was video evidence.
While the picture evidence on video may not have been the best in the world, the sound
on the video was quite damming [sic], quite honestly. It was clear that it was Mr.
Westbrook’s voice.
¶8.
Upon review, we find that Westbrook failed to show that his counsel’s alleged deficiencies
prejudiced the outcome of his trial. Thus, we conclude that this issue lacks merit.
II.
¶9.
Did the district attorney commit prosecutorial misconduct during closing
arguments?
During closing arguments, Westbrook’s counsel told the jurors that they were “the last defense of
a defendant.” In his final summation, the district attorney countered with the following:
Ladies and gentlemen, likewise, you’re told that, well, in this particular case, it comes
down to the jury being the last defense of the criminal defendant, the jury being the last
thing that stands between him and the power of the State. Ladies and gentlemen, that’s
not your job. Your job when you took the oath and got impaneled as a juror was to
render a true verdict based on the evidence. It’s not your job to protect the defendant.
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It’s the Judge’s job to make sure that his rights are protected. If you want to say it’s your
job to protect the defendant, ladies and gentlemen, it’s equally your job to protect the
communities from people who are selling drugs. Your job, ladies and gentlemen, is to
render a true verdict based on the evidence, the whole of the evidence. No matter what
effect, no matter what consequences, that’s your job.
¶10.
Westbrook characterizes the prosecutor’s comments as a “send the message” argument, which he
contends constitutes prosecutorial misconduct. Williams v. State, 522 So. 2d 201 (Miss. 1988). Initially,
we note that Westbrook failed to object to the district attorney’s comments during closing arguments.
Further, Westbrook failed to include this issue in his post-trial motion as a ground for a judgment
notwithstanding the verdict or, in the alternative, a new trial. This Court has held that error not raised at
trial or in post-trial motions may not be reviewed on appeal. Davis v. State, 660 So. 2d 1228, 1245-46
(Miss. 1995); Foster v. State, 639 So. 2d 1263, 1288-89 (Miss. 1994). Thus, we find that this issue is
procedurally barred.
¶11.
Procedural bar notwithstanding, “any allegedly improper prosecutorial comment must be evaluated
in context, taking into consideration the circumstances of the case when deciding the comment’s propriety.”
Brooks v. State, 763 So. 2d 859, 864 (¶12) (Miss. 2000) (citing Davis, 660 So. 2d at 1248). The
district attorney did not tell the jurors that their sole function was to protect the community. Rather, the
district attorney argued that if the defendant could argue that the jury had a duty to protect the defendant,
then the State could argue that the jury also had a duty to protect the community. The district attorney
further clarified his statement by telling the jury that their ultimate job was “to render a true verdict based
on the evidence, the whole of the evidence.” The district attorney’s comments did not constitute
prosecutorial misconduct. Therefore, we find no error.
III.
Was Westbrook’s sentence improper and excessive?
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¶12.
Westbrook contends that his sentence was improper and excessive. It is well settled law that
sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within
the limits prescribed by statute. Wall v. State, 718 So. 2d 1107, 1114 (¶29) (Miss. 1998).
¶13.
Mississippi Code Annotated Section 41-29-139 (Rev. 2001) states that any person who
knowingly and intentionally sells, barters, transfers, manufactures, distributes, dispenses or possesses with
the intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance “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.” It further states that
“[i]n the case of one (1) ounce or less of marihuana, such person may, upon conviction, be imprisoned for
not more than three (3) years or fined not more than Three Thousand Dollars ($3,000.00), or both.” Miss.
Code Ann. § 41-29-139 (Rev. 2001).
¶14.
Westbrook’s sentence of twenty-two years for the sale of hydrocodone and three years for the sale
or delivery of marijuana is within the statutory guidelines.
A sentence consistent with the statutory
parameters will not be disturbed. Corley v. State, 536 So. 2d 1314, 1319 (Miss. 1988). Westbrook’s
sentence was neither improper nor excessive. We find this issue to lack merit.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF COUNT 1, SALE OF HYDROCODONE: SENTENCED TO SERVE A
TERM OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY A FINE OF $5000, AND
COUNT 2, SALE OF MARIJUANA LESS THAN ONE OUNCE: SENTENCED TO SERVE A
TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, SAID SENTENCE TO RUN CONSECUTIVELY WITH THE SENTENCE
IMPOSED IN COUNT 1, FOR A TOTAL OF 25 YEARS, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES
AND ISHEE, JJ., CONCUR.
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