Terry Dora v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KP-00487-COA
TERRY DORA
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
11/23/2004
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
TERRY DORA (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF COCAINE
MORE THAN THIRTY GRAMS AND
SENTENCED AS AN HABITUAL OFFENDER
AND SUBSEQUENT DRUG OFFENDER TO
SERVE A TERM OF SIXTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS. THE
SENTENCE SHALL NOT BE REDUCED OR
SUSPENDED NOR SHALL THE DEFENDANT
BE ELIGIBLE FOR PAROLE OR PROBATION.
FURTHER, THE DEFENDANT IS FINED IN
THE AMOUNT OF $2,000,000.
REVERSED AND REMANDED: 05/15/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE MYERS, P.J., CHANDLER AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Terry Dora (“Dora”) was convicted of possession of more than thirty grams of cocaine. He
was sentenced, as an habitual offender, to serve a term of sixty years, without probation, parole,
reduction, or suspension in the custody of the Mississippi Department of Corrections. The trial court
also fined Dora the sum of $2,000,000. On appeal, Dora argues that: (1) the verdict was against the
overwhelming weight of the evidence, (2) prosecutorial misconduct warranted a mistrial, (3) the
court erred in denying jury instructions D-12 and 13, (4) one of the State’s jury instructions
misstated the law, (5) the indictment should have been quashed, (6) the indictment should not have
been amended, (7) he was denied a speedy trial, (8) the trial court should have suppressed evidence
seized pursuant to a warrant, (9) the trial court should have suppressed Rebecca Dora’s statement
due to State discovery violation, (10) there is newly discovered evidence, (11) instruction D-16
should have been granted, (12) Dora received ineffective assistance of counsel, and (13) the
cumulative effect of these errors deprived Dora of a fair trial. We find error and reverse and remand
for a new trial.
FACTS
¶2.
On August 3, 2001, at about 12:30 p.m., the Columbus Police Department executed a search
warrant for a home where suspected drug sales had occurred. The home was owned and occupied
by Rebecca Dora, Dora’s aunt. When the warrant was executed, Rebecca and her seventeen-yearold daughter were found in the living room on the couch. Officer Oscar Lewis testified he found
Dora exiting the bathroom. Lewis ordered Dora on the ground. Lewis found 35.6 grams of crack
cocaine hidden underneath tissue paper in the bathroom garbage can. He also found $1,050 hidden
under towels in the bathroom shelves. A plastic bag of coffee grounds were in Dora’s pockets. A
set of digital scales was found on the table in the adjoining kitchen. Two grams of cocaine, some
marijuana and $2,500 in cash were also found in Rebecca’s bedroom. A mirror with suspected
cocaine residue was found in the living room.
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¶3.
Dora, Rebecca and her daughter were all arrested for possession. The charges against
Rebecca’s daughter were soon dropped. Initially, Rebecca took responsibility for all the drugs
found. At trial, she only took responsibility for what was found in her bedroom. She said that Dora
had offered her $5,000 to “take the rap” for the cocaine. She said she did not know anything about
the cash in the bathroom, but the $2,500 in her bedroom was Dora’s money that he had asked her
to hold for him.
¶4.
Dora was indicted on November 7, 2001, for possession of cocaine more than thirty grams.
After trial, the jury found Dora guilty. His appeal has been deflected to this Court for review.
ANALYSIS
I.
¶5.
Did the prosecutor’s comment on Dora’s failure to testify warrant a mistrial?
Of the thirteen issues argued by Dora, we find merit in Dora’s argument that the prosecutor’s
comment on his failure to testify warranted a mistrial. Dora argues that the trial court erred in
denying his motion for mistrial. The State argues that these comments were not about Dora’s failure
to testify.
¶6.
The standard of review for denial of a motion for mistrial is abuse of discretion. Caston v.
State, 823 So. 2d 473, 492 (¶54) (Miss. 2002). “A mistrial is reserved for those instances where the
trial court cannot take any action which would correct improper occurrences.” Easter v. State, 878
So. 2d 10, 21 (¶34) (Miss. 2004).
¶7.
The determination appellate courts must apply to lawyer misconduct during opening
statements or closing arguments is whether the natural and probable effect of the improper argument
is to create unjust prejudice against the accused so as to result in a decision influenced by that
prejudice. Caston, 823 So. 2d at 495 (¶71). During closing, a lawyer is entitled to argue her case,
drawing all rational inferences which come from the evidence presented in the courtroom. Id. at
495-96 (¶72). Attorneys are allowed wide latitude in arguing cases to the jury; however, prosecutors
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are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated
to unduly influence the jury. Sheppard v. State, 777 So. 2d 659, 661 (¶7) (Miss. 2000).
¶8.
The right not to testify against one’s self is secured by the Fifth Amendment to the United
States Constitution as well as in Article 3, section 26 of the Mississippi Constitution. This includes
the right not to have the State comment on the exercise of this right. Whigham v. State, 611 So. 2d
988, 995 (Miss. 1992). “The right would be eviscerated if the government were free to make
invidious reference when an accused chose not to testify.” Id. The prosecutor is prohibited from
making both direct comments and those “which could be reasonably construed by a jury as a
comment on the defendant’s failure to testify.” Griffin v. State, 557 So. 2d 542, 556 (Miss. 1990).
“[O]nce such improper comments are made the defendant is entitled to a mistrial. The error is
incurable.” Livingston v. State, 525 So. 2d 1300, 1307 (Miss. 1988). This is regardless of the
overwhelming weight of the evidence. Id. at 1306.
¶9.
For example, in Whigham, it was reversible error for the prosecutor to comment that the
State’s witnesses were unrebutted and unopposed, where the only one who could have rebutted the
witnesses was the defendant. Whigham, 611 So. 2d at 996. Whigham was convicted of sexually
assaulting Norma Pratt. Id. at 990. Her brother Stewart was an eyewitness. Id. Both testified that
Whigham had fondled her breasts. Id. at 990-92. The court held:
when the defendant is the only person who can rebut the testimony of a State
witness, the prosecuting attorney is not free in his argument to also inform the jury
that if what the State’s witness said was not true, the defendant would, or could have
taken the stand and defied it. . . . [I]t follows that the prosecution is equally
prohibited from doing so indirectly or by implication. While the jury . . . may make
such a deduction . . . it must have been entirely on its own, unassisted by any
affirmative comment whatsoever from the State.
Id. at 995. The court found that Norma, Stewart, and Whigham were the only three eyewitnesses
to this assault. Id. “The prosecution knew this, the jury knew it. The only living person capable
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of denying the positive testimony of Norma and Stewart . . . was Whigham.” Id. From the
prosecutor’s remarks about these witnesses being unopposed, “the jury could reach no other
conclusion except that the prosecuting attorneys telling them, ‘Look, if [the State’s eyewitnesses]
were not telling you the truth, [the defendant] would have taken this witness stand and denied it.’”
Id. at 996. The court reversed and remanded the case for a new trial, despite the fact that Whigham
did not object to these comments at trial. Id. This was also despite the fact that the court, too, found
the evidence undisputed. Id. at 992.
¶10.
In this case, during rebuttal closing arguments, the prosecutor argued:
You also heard the fact that it is undisputed, ladies and gentlemen, that this defendant
told Rebecca Dora, I will give you $5,000; I’m sorry I got you into this trouble, but
I will give you $5,000 to go in there and take the rap for me. That is also undisputed.
Nobody came forward and said that didn’t happen. I submit to you, Ladies and
Gentlemen, that that is strong evidence that –
Dora objected and moved for a mistrial. The court overruled the objection and denied the motion.
¶11.
During the trial, both Rebecca and her daughter testified that at one point they were in the
back of a police car with Dora. No one else was present. This is when they say Dora made this
statement. Only Dora, Rebecca and her daughter heard the conversation. The prosecution knew it,
and the jury knew it. The only living person who could “come forward and say that didn’t happen”
was Dora. The jury could reach no other conclusion except that the prosecutor was telling them,
“Look, if Rebecca and her daughter were not telling the truth, Dora would have taken this witness
stand and denied it.”
¶12.
Additionally, the prosecutor commented that two other pieces of evidence were
“undisputed.” First, he claimed it was undisputed that Dora placed the cocaine in the trash can. As
Dora, Rebecca and her daughter were the only occupants in the house at the time, he was the only
one who could have said differently. Second, the prosecutor told the jury that Officer Lewis’s
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testimony that Dora was exiting the bathroom was undisputed. As Dora and Lewis were the only
people present at the time, Dora was the only person who could have come forward and denied it.
¶13.
Whigham instructs that these comments were impermissible. Therefore, based on Whigham
and Livingston, we find that the trial court abused its discretion in not granting the mistrial. We
reverse and remand for a new trial consistent with this opinion.
¶14.
We now reach those issues that could require us to dismiss the indictment or that would be
helpful to the trial court on remand.
II.
¶15.
Was Dora denied a speedy trial?
Dora argues that both his statutory constitutional rights to speedy trial have been violated.
The State counters that Dora waived these rights, because they are asserted for the first time on
appeal.
A.
¶16.
Statutory right to a speedy trial
By statute, criminal defendants must be tried within 270 days of arraignment, unless good
cause is shown by the State. Miss. Code Ann. § 99-17-1 (Rev. 2000). Explicit waiver of
arraignment may also be used to trigger the state right. Felder v. State, 831 So. 2d 562, 570 (¶22)
(Miss. Ct. App. 2002).
¶17.
Dora waived arraignment on May 21, 2002. This began the statutory clock. Trial did not
commence until over two years later, November 9, 2004. We need not examine whether any of this
delay was attributable to Dora, or whether there was no good cause. Dora waited to raise this issue
for the first time on appeal, June 13, 2006. Because he did not raise it within the 270 day period,
he has acquiesced to any violation of his statutory speedy trial rights. Little v. State, 744 So. 2d 339,
345 (¶24) (Miss. Ct. App. 1999).
B.
Constitutional right to a speedy trial
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¶18.
Three years, three months, and six days elapsed between Dora’s arrest and trial. Dora argues
but for this delay, he would not have been sentenced as an habitual offender, and Rebecca would not
have testified against him. He maintains that for the three years prior to his trial, she claimed full
responsibility for the drugs.
¶19.
Unlike the statutory right, failure to assert the constitutional right is not fatal to the claim.
State v. Woodall, 801 So. 2d 678, 685 (¶22) (Miss. 2001) (quoting Barker, 407 U.S. at 528); Smith
v. State, 550 So. 2d 406, 409 (Miss. 1989). When the constitutional right to a speedy trial violation
is raised for the first time on appeal, the case is remanded to the lower court to consider reasons for
the delay. State v. Woodall, 744 So. 2d 747, 749-50 (¶11) (Miss. 1999). On remand, the court is
instructed to conduct a constitutional speedy trial hearing.
III.
¶20.
Was the jury properly instructed?
Dora next argues that he was not allowed to instruct the jury on his theory of the case with
instructions D-12, D-13, and D-16. He also complains that the jury was improperly instructed on
the law of possession in instruction S-4. The State responds that the jury was properly instructed.
¶21.
In reviewing the granting or refusal of a jury instruction, we read all the jury instructions
actually given as a whole. Whitten v. Cox, 799 So. 2d 1, 16 (¶39) (Miss. 2000). If they fairly
announce the law and create no injustice, no reversible error will be found. Id. A defendant is
entitled to jury instructions on his theory of the case if there is evidence that would support a jury's
finding on that theory. Montana v. State, 822 So. 2d 954, 962 (¶29) (Miss. 2002).
A.
Theory of the case
1.
¶22.
Instructions D-12 and D-13
First, Dora complains that instructions D-12 and D-13 were required because they presented
his theory that Rebecca was an accomplice.
¶23.
Proffered instruction D-12 stated:
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Rebecca Dora is alleged to be an accomplice in this case and the testimony of an
accomplice is to be considered with great care and caution and you may give it such
weight and credit as you deem it is entitled.
Further that the evidence of an accomplice should be weighed with great caution,
jealousy, and distrust, and the jury may disbelieve such testimony altogether.
The trial court refused this instruction on the basis that there was no evidence to support it.
Likewise, proffered instruction D-13, which defined “accomplice,” was refused.
¶24.
We hold the trial court properly refused these instructions. As Dora recognizes elsewhere
in his brief, his theory at trial was actual innocence. Indeed, this is what his counsel ably presented
and argued to the jury. Furthermore, there was no evidence that Rebecca and Dora were
accomplices. The competing evidence at trial linked either Dora alone with the cocaine, or Rebecca
and her boyfriend to the cocaine. This issue has no merit.
2.
¶25.
Instruction D-16
Next, Dora argues that the trial court should have granted D-16 because it presented his
theory of actual innocence. The State objected on the basis that the instruction was asking the court
to comment on the evidence. The trial court refused it, because it operated as a directed verdict. We
agree.
¶26.
Proffered instruction, D-16 stated:
The owner of the house at 1802 Washington Avenue in Columbus,
Mississippi, Rebecca Dora and her long time live-in boyfriend, Willie Henley, were
dealing in crack cocaine.
In order to save Rebecca Dora and Willie Henley from prosecution, Rebecca
Dora and [her daughter] are trying to put the possession of cocaine on Terry Dora.
While there certainly was evidence for the jury to conclude these facts, the instruction, as written,
compelled the jury to find these facts. The prosecution had presented sufficient evidence to support
a conviction. Weighing credibility of witnesses and resolving disputed issues of fact are for the jury
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alone. Groseclose v. State, 440 So. 2d 297, 300-01 (Miss. 1983). The instruction was rightly
refused.
B.
¶27.
Instruction S-4
Finally, Dora complains that Instructions S-4 incorrectly states the law of possession. In
particular, he takes issue with the final sentence in the instruction. The State maintains that the jury
was properly instructed on the law.
¶28.
Instruction S-4 reads:
The court instructs the Jury that to constitute a possession, there must be sufficient
facts to warrant a finding that the Defendant was aware of the presence of the
particular item, and was intentionally and consciously in possession of it. It need not
be actual, physical possession; constructive possession may be shown by establishing
that the item involved was subject to the Defendant’s dominion or control. The
Defendant need not own the item in order to be in “possession” of it; and one can
be in “possession” of an item that one does not own.
(emphasis added). The final sentence is a true statement of the law. Ownership is not an essential
element of possession of a controlled substance. Miss. Code Ann. § 41-29-139 (c) (Rev. 2005).
Ownership is also not an element of constructive possession. Kerns v. State, 923 So. 2d 196, 199
(¶11) (Miss. 2005). All that is required is “dominion or control.” Id. “Dominion” does not
necessarily mean “ownership,” but even if it did, control will suffice.
¶29.
However, we note that the jury was not instructed on the complete law of possession for
another reason. Nowhere in the cumulative instructions was the jury asked to find whether or not
Dora was also aware of the character of the substance, i.e., that it was cocaine. This is an additional,
essential element to possession of a controlled substance. Campbell v. State, 556 So. 2d 475, 477
(Miss. 1990); Sumrall v. State, 758 So. 2d 1091, 1096 (¶17) (Miss. Ct. App. 2000). Since we are
already remanding this case for a new trial, we caution that this defect should not be repeated on
remand.
IV.
Was the verdict against the overwhelming weight of the evidence?
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V.
¶30.
Should the indictment have been quashed?
Under both of these issues, Dora argues there was insufficient evidence to support his
conviction. Because we remand for a new trial, we determine that it is not necessary for this Court
to address these issues.
VI.
¶31.
Was the indictment properly amended to include habitual offender status?
Dora argues that the amendment was (1) untimely, (2) prejudicial, and (3) violates Blakely
v. Washington, 542 U.S. 296 (2004). The State argues only that Dora was an habitual offender and
was not surprised or prejudiced by the amendment.
¶32.
To be sentenced as an habitual offender, the accused must be properly indicted as such.
Crouch v. State, 826 So. 2d 772, 775 (¶4) (Miss. Ct. App. 2002). Indictments may be amended to
include habitual offender status, “if the defendant is afforded a fair opportunity to present a defense
and is not unfairly surprised.” URCCC 7.09.
¶33.
First, we examine Dora’s argument that the amendment was untimely. In Wilson v. State,
935 So. 2d 945, 948 (¶10) (Miss. 2006), the motion to amend the indictment to include habitual
offender status was made months before trial, and the amendment was allowed before trial. The
court noted that it is permissible to amend an indictment to charge habitual offender status even after
the jury has returned a guilty verdict. Id. The court held that this was a timely amendment. Id.
¶34.
We likewise find Dora’s amendment is timely. Dora was put on notice over a year before
trial that the State sought to amend the indictment to charge him as an habitual offender. The trial
court held the status hearing outside the presence of the jury, after the verdict and before sentencing.
¶35.
Next, Dora states that he was unfairly surprised by the amendment. He claims that when he
was originally indicted he was not yet an habitual offender. However, unfair surprise occurs when
the amendment affects the defendant’s ability to defend against the substantive offense. Id. at 949
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(¶12) (quoting Swington v. State, 742 So. 2d 1106, 1118 (¶44) (Miss. 1999)). Habitual offender
status affects sentencing status only. Id. It does not affect the substance of the offense charged. Id.
Given this, and the fact that Dora was aware for over one year that the State would seek this
enhancement, we hold he was not unfairly surprised.
¶36.
Finally, Dora maintains that the habitual offender amendment violated his right to a jury as
set forth in Blakely. We disagree. The United States Supreme Court has held, “Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (emphasis added). Blakely, in fact, quotes this very language.
Blakely, 542 U.S. at 301. This issue has no merit.
VII.
¶37.
Should the seized evidence have been suppressed?
Dora wishes to suppress the evidence obtained during the search of Rebecca’s house and the
later search of his truck.
¶38.
The trial court found he had no standing to challenge the search of a house he neither resided
in nor owned. We agree. The Fourth Amendment protection against unlawful searches is a personal
right and cannot be asserted vicariously. Ware v. State, 410 So. 2d 1330, 1331 (Miss. 1982). The
United States Supreme Court has explained:
A person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person’s premises
or property has not had any of his Fourth Amendment rights infringed. And since the
exclusionary rule is an attempt to effectuate the guarantees of the Fourth
Amendment, it is proper to permit only defendants whose Fourth Amendment rights
have been violated to benefit from the rule's protections.
Rakas v. Illinois, 439 U.S. 128, 134 (1978). It is undisputed that Dora did not own the home nor did
he reside there. As such, he cannot complain of the search of Rebecca’s home.
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¶39.
As for the truck, there was no evidence found in it, retrieved from it, or used against him.
This issue has no merit.
VIII.
IX.
Does Rebecca’s guilty plea constitute newly discovered evidence?
X.
Was Dora denied effective assistance of counsel?
XI.
¶40.
Did a discovery violation warrant the suppression of Rebecca’s statement?
Did cumulative error deprive Dora of a fair trial?
Because we remand the case for a new trial and a speedy trial hearing, we need not reach
these issues.
¶41. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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