Lorenzo Tarver v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01260-COA
LORENZO TARVER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/15/2006
HON. W. ASHLEY HINES
LEFLORE COUNTY CIRCUIT COURT
IMHOTEP ALKEBU-LAN
CHOKWE LUMUMBA
ALI SHAMSIDDEEN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
WILLIE DEWAYNE RICHARDSON
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF
MARIJUANA WITH INTENT TO SELL,
TRANSFER, OR DISTRIBUTE AND
SENTENCED TO SIXTY YEARS IN THE
CUSTODY OF MISSISSIPPI DEPARTMENT
OF CORRECTIONS AND TO PAY A FINE
OF $100,000
AFFIRMED-01/27/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
In March 2005, Lorenzo Tarver was indicted in a two-count indictment by the grand
jury of Leflore County for (1) possession of marijuana with the intent to sell, transfer, or
distribute and (2) possession of a deadly weapon by a convicted felon. Following a jury trial
in June 2006, Tarver was convicted of the crime in Count I, which was possession of
marijuana with intent to sell, transfer, or distribute. In addition, the sentence was enhanced
pursuant to Mississippi Code Annotated section 41-29-142 (Rev. 2005) for possession of a
controlled substance with the intent to sell, transfer, or distribute within 1,500 feet of a day
care center. As a result, Tarver was ordered to serve a term of sixty years in the custody of
the Mississippi Department of Corrections and to pay a fine in the amount of $100,000.
Aggrieved, Tarver appeals assigning the following issues for review:
I.
Whether the State’s closing argument deprived Tarver of a fair trial.
II.
Whether it was error to (1) exclude for cause jurors who expressed
concern about missing evidence, (2) permit the prosecutor to talk about
two trials, and (3) strike an impaneled juror.
III.
Whether the gun count of the indictment should have been severed.
IV.
Whether Tarver’s motion for continuance was properly denied.
V.
Whether Tarver’s motion to suppress his criminal record was properly
denied.
VI.
Whether the indictment was properly amended.
VII.
Whether Tarver received effective assistance of counsel.
VIII. Whether Tarver is entitled to a new trial because of lost evidence.
IX.
Whether Tarver’s right to a speedy trial was denied.
X.
Whether Tarver’s motion for recusal was properly denied.
XI.
Whether Tarver’s sentence is excessive and constitutes cruel and
unusual punishment.
XII.
Whether Tarver’s motion to suppress the evidence from the search
warrant was properly denied.
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XIII. Whether Tarver received a fundamentally fair and impartial trial.
¶2.
Finding no error, we affirm the judgment of the circuit court.
FACTS
¶3.
On June 18, 2004, officers from the Greenwood Police Department executed a search
warrant after obtaining information from a confidential informant that there was a large
amount of marijuana, money, and a gun in the house located at 506 Cypress Street,
Greenwood, Mississippi. The officers searched the home and found 31.8 kilograms (69.9
pounds) of marijuana; more than $18,000 in cash; and a number of firearms, including a .40caliber pistol. Tarver’s mother, step-father, and niece lived in the house; however, only
Tarver was present at the time of the search. When it came time for the trial, the marijuana
was missing from the evidence vault.
DISCUSSION
I.
¶4.
State’s Closing Argument
Tarver’s first complaint is that the State’s closing argument included remarks
appealing to the juror’s emotions and insinuating criminal conduct by Tarver’s attorneys.
Tarver alleges that the State made comments implying that Tarver’s attorneys thought people
from Greenwood were ignorant, and that those comments were intended to appeal to the
jury’s prejudice. Tarver also contends that the State’s comments referencing the missing
marijuana were highly prejudicial and suggested that Tarver’s attorneys were responsible for
the disappearance of the evidence. Tarver requests that this Court vacate his conviction
based on prosecutorial misconduct and enter an order of dismissal or, in the alternative,
remand this cause for a new trial.
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¶5.
It is well established that attorneys are granted wide latitude when making their
closing arguments. Stubbs v. State, 878 So. 2d 130, 136 (¶17) (Miss. Ct. App. 2004). The
standard of review used to determine if improper remarks warrant reversal is “whether the
natural and probable effect of the prosecuting attorney’s improper argument created unjust
prejudice against the accused resulting in a decision influenced by prejudice.” Taylor v.
State, 672 So. 2d 1246, 1270 (Miss. 1996) (citation omitted). The comments are evaluated
by taking into consideration the complete context in which they were made. Sanders v. State,
939 So. 2d 842, 846 (¶9) (Miss. Ct. App. 2006).
¶6.
Tarver complains that during the State’s closing argument the prosecutor implied that
Tarver’s attorneys were somehow involved in the disappearance of the marijuana from the
evidence vault. Specifically, Tarver believes that the following comments were improper:
[By the Prosecution]: But you got a guy who admits to that kind of marijuana,
has this kind of money, 18,000 dollars, knowing - - we know that he’s going
to have a [.]40 - caliber [Beretta] [in] his house. And [the] defense lawyer
talking about the missing evidence when they know good and well that that
evidence was seen at a hearing where his co-attorneys were, and his
investigator was, and his client was. Then all the sudden the first time it’s set
for trial, it’s gone. They wanted to see the evidence vault. Shown where the
vault is. Now I don’t know who showed them, but it was shown to them. The
evidence vault. Now, you think this kind of stuff only happens on T.V. No.
That’s for real. That’s why the FBI is investigating, and when we find out
who did it - - and you heard Lawrence Williams. Lawrence Williams said,
may have been a police officer involved. And if it was - - if it was, that police
officer is going to be sitting right where that guy is sitting. And if we find out
[Ali] ShamsidDeen and his cohorts down in Jackson were involved, they are
going to be sitting right there.
[By the Defense]: Objection. Objection.
The Court: The objection is sustained.
[By the Prosecution]: Ladies and gentlemen of the jury, the people come up
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here from Jackson, big shot lawyers, I guess, I guess thinking Greenwood,
Mississippi, bunch of ignoramuses. We don’t have any sense up here. You
can just talk about - - I mean, how long you going to talk about the prints?
They said, we didn’t do the prints. How many hours of question did you hear
about it? Talking about the constitution is made for the people, the people of
the United States. That’s you. That’s all of us. It’s not just for Lorenzo
Tarver, a drug dealer. It’s for all the people. And when we let somebody like
this sell this kind of marijuana or possess with the intent to sell, have in their
possession - - and if you read the instruction, doesn’t have to be actual - doesn’t have to be holding it, possession. When we find that, I hope we
convict, because this is a big fish, and there is a duty that all of us have as
Americans, if he wants to talk about America.
¶7.
We will first address Tarver’s assertion that the prosecutor appealed to the juror’s
prejudice by stating that ShamsidDeen thinks people from Greenwood are ignorant. The
record shows that Tarver failed to make a contemporaneous objection to that argument at
trial.
Although his comments almost certainly would have constituted prosecutorial
misconduct, the law is clear that there must be a timely objection, and “a party who fails to
make a contemporaneous objection at trial must rely on plain error to raise the issue on
appeal, because it is otherwise procedurally barred.” Sims v. State, 919 So. 2d 264, 266 (¶7)
(Miss. Ct. App. 2005) (quoting Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001)
(overruled on other grounds)). Only when a defendant’s substantive rights are affected will
the plain-error rule be applied. Dobbins v. State, 766 So. 2d 29, 32 (¶5) (Miss. Ct. App.
2000). “The plain-error doctrine requires that there be an error and that the error must have
resulted in a manifest miscarriage of justice.” Sims, 919 So. 2d at 266 (¶7) (citation omitted).
Given the facts of this case and the evidence presented at trial, we do not find that there was
a manifest miscarriage of justice. This issue is without merit.
¶8.
Next, we address Tarver’s contention that the State’s comments insinuated criminal
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conduct by Tarver’s Jackson lawyers. The prosecutor also mentioned during his closing
argument, however, that there was the possibility of the evidence being taken by a police
officer.
Due to the fact that the State had relied heavily on the Greenwood Police
Department in building the prosecution’s case against Tarver, we also find that this comment
did not affect the outcome. Although it was highly inappropriate for the prosecutor to make
the disparaging comments about Tarver’s defense counsel, the fact that the State also implied
that a police officer might have acted unlawfully in removing the marijuana from the
evidence vault partly canceled out the prejudicial effect toward the defense. Accordingly,
this issue is without merit.
II.
¶9.
Whether it was error to (1) exclude for cause jurors who expressed concern
about missing evidence, (2) permit the prosecutor to talk about two trials, and
(3) strike an impaneled juror.
Tarver’s second assignment of error contains three issues. We will address each one
individually.
A.
¶10.
Excluding Jurors for Cause
Tarver claims that the circuit court abused its discretion in excluding for cause jurors
who expressed concern over the fact that the marijuana was missing from the evidence vault
and would not be presented at trial. He accuses the State of questioning jurors in such a
manner that attempted “to elicit a pledge to vote a certain way if a certain set of
circumstances [were] shown.” The State asked the prospective jurors if there was “anybody
who would say that they’re automatically going to vote not guilty because the State [would
not] be able to bring in [the] big bales of marijuana[.]” Several jurors raised their hands in
reply, and as a result, they were struck for cause. Tarver concedes that his defense counsel
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did not object to the State’s allegedly impermissible challenges for cause, and he even agreed
with the State’s challenges for two of the jurors; however, Tarver maintains that his counsel’s
behavior “did not relieve the trial court from denying [the] same where they are judicially
prohibitive.”
¶11.
The circuit court has “wide discretion in determining whether to excuse any
prospective juror.” Stigall v. State, 869 So. 2d 410, 413 (¶7) (Miss. Ct. App. 2003). “The
circuit judge has an absolute duty . . . to see that the jury selected to try any case is fair,
impartial and competent.” Id. (citation omitted). In addition, the Mississippi Supreme Court
has consistently held that “a party who fails to object to the jury’s composition before it is
empaneled waives any right to complain thereafter.” Thorson v. State, 895 So. 2d 85, 118
(¶81) (Miss. 2004).
¶12.
We do not find that the circuit court abused its discretion in excluding the jurors. The
jurors at issue answered in the affirmative when asked if they would automatically vote not
guilty if the marijuana was not produced at trial. Therefore, excluding those jurors was an
effort by the judge to select a fair and impartial jury. Furthermore, Tarver’s counsel failed
to object to the jury at the time it was selected. Accordingly, this issue is procedurally barred
and without merit.
B.
¶13.
Permitting Prosecutors to Discuss Two Trials
Tarver also claims that the circuit court abused its discretion by allowing the
prosecutor to discuss two trials during voir dire: (1) Tarver’s trial and (2) the trial of
whomever stole the missing marijuana evidence. He claims he was prejudiced by the
introduction of another crime into his trial. Under Mississippi law, wide latitude is granted
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on voir dire to ensure that a party receives a fair trial and impartial jury. Tighe v. Crosthwait,
665 So. 2d 1337, 1339 (Miss. 1995). However, this does not mean that counsel is free of
limitations. Id. at 1340. “[T]he voir dire examination is largely a matter within the sound
discretion of the trial judge.” Woodward v. State, 533 So. 2d 418, 425 (Miss. 1988) (citation
omitted).
¶14.
We do not find that the circuit court judge abused his discretion in conducting voir
dire. The prosecutor explained to the prospective jurors that the marijuana was missing and
would not be presented as evidence. When he began to go into further detail, the defendant’s
attorney, ShamsidDeen, objected, and the judge sustained the objection. At no time during
voir dire did the prosecutor imply that Tarver was even remotely responsible for the missing
marijuana. Tarver fails to provide any evidence of how he was prejudiced by the State’s
comments; therefore, this issue is without merit.
C.
¶15.
Striking an Impaneled Juror
Tarver further claims that the court erred in striking an impaneled juror for allegedly
having contact with a spectator in violation of Rule 3.06 of the Uniform Rules of Circuit and
County Court. This occurred after a witness reported that Juror 11 was seen mingling in the
hallway with a spectator from the courtroom. The court replaced the juror with an alternate,
and Tarver argues that this was further evidence of the bias against him.
¶16.
Rule 3.06 prohibits jurors from “mix[ing] and mingl[ing] with the attorneys, parties,
witnesses and spectators in the courtroom, corridors, or restrooms in the courthouse.”
URCCC 3.06. The rule further states that “[t]he court must instruct jurors that they are to
avoid all contacts with the attorneys, parties, witnesses or spectators.” Id. Although the
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circuit court judge failed to so instruct the jurors in this case, Tarver sets forth no evidence
to show how replacing Juror 11 with the alternate juror showed bias against him or caused
him to suffer prejudice. The defense counsel had accepted the alternate juror without
objection when the jury was being chosen. Rule 3.06 clearly states that jurors are not to
mingle with spectators; therefore, the circuit court judge was simply enforcing the rule.
Accordingly, this issue is without merit.
III.
¶17.
Severing the Gun Count of the Indictment
Tarver’s third assignment of error is that the two counts of the indictment should have
been severed. Mississippi Code Annotated section 99-7-2(1) (Rev. 2007) allows two or more
offenses to be charged in the same indictment with a separate count for each offense and tried
in a single proceeding if: “(a) the offenses are based on the same act or transaction; or (b) the
offenses are based on two (2) or more acts or transactions connected together or constituting
parts of a common scheme or plan.”
¶18.
On appeal, a motion to sever is reviewed using the abuse of discretion standard.
Rushing v. State, 911 So. 2d 526, 532 (¶12) (Miss. 2005). Courts look to three factors when
determining whether a motion to sever should be granted or denied: “[1] the time period
between the offenses, [2] whether the evidence proving each offense would be admissible
to prove the other counts, and [3] whether the offenses are interwoven.” Id. at 534 (¶15).
There is “no authority limiting the applicability of . . . the multi-count indictment statute
simply because some element of the necessary proof as to one charge would be inadmissible
on the other charge were it being tried separately.” Wright v. State, 797 So. 2d 1028, 1030
(¶7) (Miss. Ct. App. 2001). When a case contains evidence that is admissible for one
9
purpose and inadmissible for another, “the answer is not to exclude the evidence altogether,
but to admit it subject to the jury being instructed as to the limited purpose for which the
information is admitted.” Id. at (¶8).
¶19.
We find no merit in Tarver’s argument that he was prejudiced by trying the two
offenses together in the same criminal proceeding. The circuit court properly instructed the
jury on the limited purpose for which the evidence of Tarver’s prior conviction was admitted.
Furthermore, the jury did not find that Tarver was guilty of the second count of the
indictment, in which he was charged with possession of a firearm by a convicted felon;
therefore, the jury was clearly able to separate and differentiate between the two crimes.
Accordingly, the circuit court did not abuse its discretion in denying Tarver’s motion to
sever.
IV.
¶20.
Motion for Continuance
Tarver’s fourth assignment of error is that his motion for continuance should have
been granted because his attorney, ShamsidDeen, was not prepared at the commencement
of trial to render effective assistance of counsel. Tarver argues that his originally retained
counsel, Chokwe Lumumba, had been suspended from the practice of law, and as a result,
ShamsidDeen had only stepped in to argue the pretrial motions. The circuit court denied
Tarver’s motion because it had been filed only two days before trial rather than the required
seven days.
¶21.
“The decision whether to grant or deny a continuance is a matter left to the sound
discretion of the trial court. Unless manifest injustice is evident from the denial of a
continuance, this Court will not reverse.” Strohm v. State, 845 So. 2d 691, 695 (¶8) (Miss.
10
Ct. App. 2003) (internal citations omitted). The defendant bears the burden of presenting
concrete facts that show how the denial of a continuance caused particular prejudice to his
case. Stack v. State, 860 So. 2d 687, 691-92 (¶7) (Miss. 2003). When a motion for
continuance is filed because an attorney has not had enough time to adequately prepare for
trial, it “is subject to proof and also as to facts as they may appear from that which is known
from the trial court.” McCormick v. State, 802 So. 2d 157, 160 (¶13) (Miss. Ct. App. 2001).
¶22.
Tarver contends that his “motion was not filed seven days before trial in part because
[ShamsidDeen] was not retained by Tarver nor paid to represent Tarver at trial.” He also
complains that ShamsidDeen had only two days to prepare for trial. However, the record
reveals that ShamsidDeen was granted an earlier motion for continuance, on which he was
listed as “Attorney for Defendant,” that was filed on March 28, 2006, due to a conflict with
his schedule. In addition, although the motion at issue, which ShamsidDeen also signed as
“Attorney for Defendant,” was not filed until June 12, 2006, the motion says it was
“[r]espectfully submitted, this the 24th day of May, 2006.”
¶23.
Based on the foregoing, we find that Tarver’s arguments lack merit. It was not as
though ShamsidDeen had been newly hired only two days before the trial without any
background knowledge of the case. To the contrary, ShamsidDeen had been acting as
Tarver’s attorney for several months before the trial began. Due to the circumstances
surrounding Lumumba’s suspension, it was foreseeable that ShamsidDeen would be expected
to step in as counsel, if not in March, certainly by May. This Court has upheld numerous
denials of motions for continuances where the defense counsel had a limited amount of time
to prepare for trial. See Stack, 860 So. 2d at 692 (¶9). We see no indication that the circuit
11
court abused its discretion in denying Tarver’s motion for continuance, and Tarver fails to
demonstrate how his case was prejudiced. Therefore, this issue is without merit.
V.
¶24.
Motion to Suppress Tarver’s Criminal Record
Tarver’s fifth assignment of error is that the circuit court erred in denying his motion
to exclude his prior criminal record, which contained a 1998 federal drug conviction. Tarver
was previously charged with possession of cocaine with intent to distribute. He contends that
because it is similar to the present charge of possession of marijuana with intent to distribute,
the prejudicial effect of its admission outweighed any probative value.
¶25.
Pursuant to Mississippi Rule of Evidence 404(b), evidence of prior convictions may
be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Swington v. State, 742 So. 2d 1106, 1112 (¶15) (Miss. 1999).
Such evidence may not be used, however, to imply that the defendant is more likely to be
guilty of the current charge. White v. State, 842 So. 2d 565, 573 (¶24) (Miss. 2003). The
Mississippi Supreme Court has held that evidence of prior drug transactions offered to show
the defendant’s intent to distribute “is not barred by M.R.E. 404 and is properly admissible
if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction.”
Swington, 742 So. 2d at 1112 (¶14). The purpose of Rule 403 is to ensure that the evidence
offered does not present a risk of undue prejudice that would substantially outweigh the
probative value if admitted. Palmer v. State, 939 So. 2d 792, 795 (¶10) (Miss. 2006).
¶26.
The circuit court admitted the prior conviction after hearing oral arguments and
considering the motion. The circuit court offered a limiting instruction in this case so that
the jury would only consider the evidence for the purpose of establishing Tarver’s intent to
12
sell, transfer, or distribute marijuana. We find that the prior conviction was properly
admitted to show intent and was accompanied by a proper limiting instruction. This issue
is without merit.
VI.
¶27.
Amendment to the Indictment
Tarver’s sixth assignment of error is that the circuit court committed reversible error
by allowing the State to amend the indictment to allege that the crime was committed within
1,500 feet of a day care center instead of a park. He alleges that it caused him to be
prejudiced because “before the amendment of the indictment[,] the State could not prove
beyond a reasonable doubt that a park was within 1[,]500 feet from the house. After the
amendment, his defense that the location was not a park was no longer available.”
¶28.
“The purpose of an indictment is to furnish the defendants notice and a reasonable
description of the charges against them. . . . Therefore, an indictment is only required to have
a clear and concise statement of the elements of the crime the defendant is charged with.”
Spicer v. State, 921 So. 2d 292, 319 (¶58) (Miss. 2006). It may be amended to correct
defects of form, but not defects of substance. Leonard v. State, 972 So. 2d 24, 28 (¶12)
(Miss. Ct. App. 2008). An amendment of substance is one which “changes the charge made
in the indictment to another crime.” Cridiso v. State, 956 So. 2d 281, 285 (¶9) (Miss. Ct.
App. 2006). A permissible change in the indictment is one that “does not materially alter
facts which are the essence of the offense on the face of the indictment as it originally stood
or materially alter a defense to the indictment as it originally stood so as to prejudice the
defendant’s case.” Spears v. State, 942 So. 2d 772, 774 (¶6) (Miss. 2006). Specifically, with
regard to changing a location, Mississippi Code Annotated section 99-17-13 (Rev. 2007)
13
expressly allows for a court to amend an indictment when there “appear[s] to be any variance
between the statement in the indictment and the evidence offered in proof thereof, in the
name of any county, city, town, village, division, or any other place mentioned in such
indictment.”
¶29.
We find that the indictment fulfilled its purpose of furnishing Tarver with notice and
a reasonable description of the charges against him, and that it contained a clear and concise
statement of the elements of the crime with which he was charged. It stated that Tarver was
being charged with the crimes of possession of marijuana with the intent to sell, transfer, or
distribute pursuant to Mississippi Code Annotated section 41-29-139 (Rev. 2005) and
possession of a firearm by a previously convicted felon at “said location 506 Cypress Street
being within one thousand five hundred (1[,]500) feet of a park, in violation of [s]ection
41-29-142(1), of the Mississippi Code of 1972.”
¶30.
Mississippi Code Annotated section 41-29-142 enhances the sentence of any person
who violates section 41-29-139(a)(1) by the following actions:
possessing with intent to sell, barter, transfer, manufacture, distribute or
dispense, a controlled substance, in or on, or within one thousand five hundred
(1,500) feet of, a building or outbuilding which is all or part of a public or
private elementary, vocational or secondary school, or any church, public park,
ballpark, public gymnasium, youth center or movie theater[.]1
The statute does not make any distinction between parks or schools with regard to a
violation; therefore, the amendment did not change the crime with which Tarver was
charged. Finally, the indictment was amended six months before the trial commenced, so the
1
Although the statute does not specifically include “day care,” this Court has
previously held that the enhanced sentence also applied to a day care. See Hodges v.
State, 906 So. 2d 23, 26 (¶14) (Miss. Ct. App. 2004).
14
defense was given sufficient notice to prepare and adjust their defense accordingly. Based
on the foregoing, we find that the indictment was properly amended.
VII.
¶31.
Effective Assistance of Counsel
Tarver’s seventh assignment of error is that he received ineffective assistance of
counsel. He claims that ShamsidDeen was not given enough time to prepare for trial and that
this led to him committing multiple errors, such as not having seen photographic evidence
that the State intended to use against Tarver, using the wrong jury list to exercise peremptory
challenges, and failing to make all of the objections that Tarver asserts would have been
appropriate throughout the trial.
¶32.
On direct appeal, the record is typically not sufficient to support a claim of ineffective
assistance of counsel; therefore, these claims are best brought when seeking post-conviction
relief. Lyle v. State, 908 So. 2d 189, 196 (¶35) (Miss. Ct. App. 2005) (citing Read v. State,
430 So. 2d 832, 837 (Miss. 1983)). The proper resolution of an ineffective assistance claim
made on direct appeal is to “deny relief without prejudice to the defendant’s right to assert
ineffective assistance of counsel in a post-conviction relief proceeding.” Id. The merits of
such a claim may be addressed on direct appeal if the reviewing court finds that the record
is adequate to determine whether counsel was ineffective without consideration of the trial
judge’s findings of fact. Id. at (¶36).
¶33.
To establish a claim for ineffective assistance of counsel, the defendant must prove
that: (1) his counsel’s performance was deficient, and (2) that deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A counsel’s performance will
be deemed ineffective if the reviewing court finds that counsel’s conduct “so undermined the
15
proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Davis v. State, 897 So. 2d 960, 964 (¶10) (Miss. 2004).
¶34.
Although Tarver lists a number of complaints related to ShamsidDeen’s
representation, he has “not demonstrated prejudice where, as here, he has not alleged
anything that would have led to a different result.” Miller v. State, 914 So. 2d 800, 803 (¶11)
(Miss. Ct. App. 2005) (citation omitted). Based on our review of the record, we find that
ShamsidDeen participated extensively in voir dire and in the direct and cross-examination
of the witnesses. In addition, the record reveals multiple occasions where he did object at
trial. As a result, we find that ShamsidDeen’s representation was competent and successful
to the extent that Tarver was found “not guilty” of one of the charges he faced. We hereby
deny relief without prejudice to the defendant’s right to assert ineffective assistance of
counsel in a post-conviction relief proceeding.
VIII.
¶35.
Lost Evidence
Tarver’s eighth assignment of error is that he should be entitled to a new trial based
on the fact that the evidence had been lost by the time of trial. The evidence in question
included 31.8 kilograms, or 69.6 pounds, of marijuana that was allegedly confiscated from
his home by law enforcement and later found to be missing from the evidence vault. Before
the evidence disappeared, however, it had been tested by the Mississippi Crime Laboratory,
which confirmed that the substance was, in fact, marijuana. Tarver argues that he did not
have the opportunity to have it independently tested to determine its exculpatory value.
¶36.
“[T]he State has the duty to preserve evidence, but that duty is limited to the evidence
which ‘might be expected to play a significant role in the suspect’s defense.’” Russell v.
16
State, 849 So. 2d 95, 114 (¶58) (Miss. 2003) (citation omitted). In order to determine
whether a defendant is entitled to a new trial when evidence is lost or destroyed, the evidence
must meet the following two-part test: (1) the evidence must have exculpatory value or
nature that that was apparent before it was lost, and (2) the evidence must be of a nature that
the defendant would not have the ability to obtain comparable evidence by other means. Id.
¶37.
Tarver does not present any evidence to support his theory that the missing evidence
might be of an exculpatory nature. When the police officers first arrived at Tarver’s home,
he admitted that the three pounds of marijuana in his bedroom belonged to him. The officers
also found a large scale under Tarver’s bed and over $18,000 in cash during their search. In
addition, the garbage bags found at Tarver’s home containing the marijuana were confiscated
by law enforcement and were presented into evidence at trial and still contained “marijuana
residue.”
¶38.
At trial, Adrian Hall, a forensic scientist who had been employed by the Mississippi
Crime Laboratory for seven and a half years, testified as an expert witness. He informed the
court that “[his] duties include[d] the analysis for the presence or absence of a controlled
substance,” and that he had “performed well over four thousand different sample analys[es]”
to determine whether a substance contained narcotics. Hall explained that a law enforcement
officer had delivered the marijuana at issue to him on June 23, 2004. The Mississippi Crime
Laboratory’s policy is that it does not accept evidence that weighs over a kilogram, but
instead a core sample is taken, and the evidence is returned to the officer. The lab followed
this procedure in the present case, and each of the three samples tested positively as
marijuana.
17
¶39.
Based on the foregoing, we find that Tarver fails to meet the first prong of the analysis
in demonstrating that the evidence could have been of an exculpatory nature. Tarver does
not set forth any evidence to indicate that there was an error in the crime lab’s testing. In
addition, Tarver and Lumumba saw the evidence before it was stolen, when it was presented
at an earlier hearing. If Tarver had desired to have the evidence independently tested before
it went missing, he could have done so; however, he never made such a request.
Accordingly, Tarver’s argument is without merit.
IX.
¶40.
Speedy Trial
Tarver’s ninth assignment of error is that his state and federal constitutional rights to
a speedy trial were violated. He points out that his arrest occurred on June 18, 2004, his
indictment was recorded on March 7, 2005, his arraignment was held on April 1, 2005, and
his trial commenced on June 14, 2006. Tarver filed a Motion to Dismiss for Violation of
Defendant’s Speedy Trial Rights on May 31, 2005. The State, on the other hand, points to
the complex evidence that was presented, the lengthy fingerprint analysis, the drug analysis,
and the time needed by the crime lab to support its argument that there was good cause for
the delay.
¶41.
This Court reviews a circuit court’s decision to deny a motion to dismiss for violation
of a defendant’s right to a speedy trial to determine whether the delay was due to good cause.
Jenkins v. State, 947 So. 2d 270, 275 (¶8) (Miss. 2006) (citing Manix v. State, 895 So. 2d
167, 173 (¶7) (Miss. 2005)). A finding of good cause is a question of fact; therefore, we will
uphold those decisions on appeal which are based on substantial, credible evidence and will
only reverse if we find the circuit court’s decision to be clearly erroneous. Walton v. State,
18
678 So. 2d 645, 648-49 (Miss. 1996).
A.
¶42.
The Statutory Right
Mississippi law requires that all offenses for which an indictment is presented shall
be tried within 270 days after the accused is arraigned, unless good cause is shown and the
court has entered a continuance. Miss. Code Ann. § 99-17-1 (Rev. 2007). The 270-day
statutory limit applies only to the length of time between the arraignment and the trial; it does
not include the time between the occurrence of the crime and the indictment. Jenkins, 947
So. 2d at 275 (¶9). The State bears the burden of establishing good cause for the delay since
the defendant has no duty to bring himself to trial. Herring v. State, 691 So. 2d 948, 953
(Miss. 1997).
¶43.
Tarver was arraigned on April 1, 2005. The trial was originally scheduled for June
22, 2005; however, it was continued so that Tarver’s motions could be heard in a two-day
hearing. The circuit court’s order states that the trial had been scheduled and would have
taken place had it not been for “defense counsel’s failure to follow established procedures
of the court and defense counsel’s unavailability,” so the trial was rescheduled for December
1, 2005. The circuit court judge then granted the defendant’s motions for continuance on
November 28, 2005, and on April 6, 2006, due to defense counsel’s unavailability.
¶44.
Accordingly, we find that Tarver’s right to a speedy trial under section 99-17-1 was
not violated. Although the 439 days between the arraignment and trial did exceed the 270day limit, we do not find this to be the fault of the State or the circuit court. Continuances
were filed and granted based upon showings of good cause in compliance with the statute,
and “[c]ontinuances granted to the defendant toll the running of our speedy trial statute and
19
should not be counted against the State.” State v. Magnusen, 646 So. 2d 1275, 1282 (Miss.
1994) (citation omitted). Therefore, this issue is without merit.
B.
¶45.
The Constitutional Right
The right to a speedy trial is set forth in the Sixth Amendment of the United States
Constitution. Guice v. State, 952 So. 2d 129, 139 (¶21) (Miss. 2007). Violation of a
defendant’s constitutional right to a speedy trial is not automatic grounds for dismissal. Id.
at (¶22). Rather, a balancing test is performed, which requires that courts approach such
cases on an ad hoc basis. Id. The test is derived from the United States Supreme Court case
of Barker v. Wingo, 407 U.S. 514, 530 (1972), and it evaluates four factors: (1) length of the
delay, (2) reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to
the defendant. Guice, 952 So. 2d at 139 (¶22) (citing Barker, 407 U.S. at 530).
(1)
¶46.
Length of the Delay
If the length of time between the arrest and trial exceeds eight months, the delay is
sufficient to trigger a Barker analysis. Jenkins, 947 So. 2d at 276 (¶14). Only if the length
of the delay is “presumptively prejudicial” to the defendant will the remaining factors be
considered. Id. The constitutional right, unlike the statutory right, attaches at the time that
a person is effectively accused of a crime. Id. Because twenty-four months passed from the
time of Tarver’s arrest until his trial, we will continue the Barker analysis under the
assumption that it was presumptively prejudicial.
(2)
¶47.
Reason for the Delay
Next, the State bears the burden of proof in providing justification for the delay.
Herring, 691 So. 2d at 955-56. The State called Lawrence Williams, a detective sergeant
20
with the Greenwood Police Department, to testify to the cause of the delay in bringing Tarver
to trial. Sergeant Williams pointed to the complex nature of Tarver’s case, the large quantity
of evidence with which they were dealing, and the fact that Greenwood had an
uncharacteristically high crime rate that summer, which required that they “pretty much had
every investigator working overtime. . . . It was just kind of pandemonium.”
¶48.
Williams explained the routine procedure that the State follows in preparing a case
to present it to the grand jury, including the investigation process, paperwork, documentation,
and crime lab results. The first grand jury meeting following Tarver’s arrest was in
September 2004. At that time, the results were not back from the crime lab, and the
investigation was not complete. As a result, Tarver’s case was presented to the next available
grand jury, which met in January 2005. The indictment was filed on March 7, 2005, and the
arraignment date was April 1, 2005. As previously stated, the trial was originally scheduled
for June 2005; however, it was delayed due to the defense counsel’s actions and motions for
continuances.
¶49.
Our supreme court has held that delays due to a crime lab’s backlog, overcrowded
dockets, and understaffed prosecutors will not be heavily weighed against the State. See
Jenkins, 947 So. 2d at 275-76 (¶10); McGhee v. State, 657 So. 2d 799, 802 (Miss. 1995). In
Diddlemeyer v. State, 398 So. 2d 1343, 1344-45 (Miss. 1981), the supreme court found that
a one-year delay was not unreasonable when the appellant had not shown prejudice, and the
delay was due to court congestion and the fact that a grand jury was not in session when the
crime was committed. Similarly, we do not find the current delay to have been unreasonable
given the circumstances in this case. This factor weighs in the State’s favor.
21
(3)
¶50.
Assertion of Right
The State is responsible for bringing the defendant to trial in a timely manner.
Magnusen, 646 So. 2d at 1283. “Although the defendant has neither a duty nor an obligation
to bring himself to trial, points are placed on his side of the ledger when . . . he has made a
demand for a speedy trial.” Id. The circuit court states in its order that Tarver asserted his
right to a speedy trial; therefore, this factor weighs in his favor.
(4)
¶51.
Prejudice
A defendant may be prejudiced in two ways by a delay. Skaggs v. State, 676 So. 2d
897, 901 (Miss. 1996). First, it may impair the accused’s ability to defend himself due to lost
evidence, fading memories, and difficulty in locating witnesses. Id. Second, the restraints
of the defendant’s liberty may cause additional suffering. Id. Tarver complains that the
delay contributed to the hardships he faced in locating two of his witnesses. However, he
does not provide any evidence of how those two witnesses could have affected the outcome
of his case. Therefore, this factor weighs in favor of the State.
¶52.
After reviewing the Barker factors in light of the facts of this case and considering the
totality of the circumstances, we find that the factors do not weigh in Tarver’s favor.
Accordingly, we find that Tarver’s argument that he was not afforded a speedy trial is
without merit.
X.
¶53.
Motion for Recusal
Tarver’s tenth assignment of error is that the circuit court judge had developed biases
against Tarver’s original counsel, Lumumba, and those biases had spilled over to Tarver. To
support his claim, he cites instances in which Lumumba had been late for court and had
22
disagreements with the prosecutor and court administrator, as well as motions that Tarver
filed that were denied.
¶54.
When reviewing a judge’s refusal to recuse, this Courts applies a manifest-error
standard. Dillard’s, Inc. v. Scott, 908 So. 2d 93, 98 (¶17) (Miss. 2005). The Code of Judicial
Conduct requires a judge to disqualify himself or herself when that judge’s “impartiality
might be questioned by a reasonable person knowing all the circumstances . . . including but
not limited to instances where: (a) the judge has a personal bias or prejudice concerning a
party.” Id. (quoting Code of Judicial Conduct, Canon 3(E)(1)). A judge is presumed to be
qualified and unbiased.
Collins v. Joshi, 611 So. 2d 898, 901 (Miss. 1992).
“This
presumption may only be overcome by evidence showing beyond a reasonable doubt that the
judge was biased or not qualified.” Id. A judge must recuse when a reasonable person aware
of all the circumstances doubts the judge’s impartiality. Id.
¶55.
Although Tarver complains that he believes the judge was biased against Lumumba,
Tarver was represented by ShamsidDeen at trial since Lumumba was suspended from the
practice of law. There has been no evidence presented that suggests the circuit court judge
was biased or not qualified. The motions that were denied were not based on biases against
Tarver, but they were denied for reasons discussed throughout this opinion. The circuit court
judge refused to recuse himself stating that he “[could] not find just cause to recuse himself.”
Accordingly, we find no reason to doubt the judge’s impartiality. This issue is without merit.
XI.
¶56.
Tarver’s Sentence
Tarver’s eleventh assignment of error is that the sentence and fines imposed by the
circuit court are excessive and constitute cruel and unusual punishment in violation of the
23
United States and Mississippi Constitutions. He does acknowledge, however, that they do
not exceed the maximum period allowed by statute. The State believes the court was
justified in imposing the maximum sentence, and it points out Tarver’s prior drug-related
conviction and the fact that his sentence was enhanced for public considerations as to
location.
¶57.
“Sentencing is generally within the sound discretion of the trial judge and the trial
judge’s decision will not be disturbed on appeal if the sentence is within the term provided
by statute.” Bell v. State, 769 So. 2d 247, 251 (¶9) (Miss. Ct. App. 2000). The Mississippi
Supreme Court has acknowledged that the Legislature has control of the length of sentences.
Id. The Legislature has provided a wide range of sentences to allow trial judges to assign
appropriate sentences using their discretion. White v. State, 742 So. 2d 1126, 1137 (¶45)
(Miss. 1999). This Court will, however, review a sentence on Eighth Amendment grounds
that is grossly disproportionate to the crime committed. Ford v. State, 975 So. 2d 859, 869
(¶39) (Miss. 2008). If a “threshold comparison of the crime committed to the sentence
imposed leads to an inference of ‘gross disproportionality,’” this Court will engage in the
analysis provided in Solem v. Helm, 463 U.S. 277, 292 (1983). Id. (citation omitted).
¶58.
We do not find that the sentence imposed was grossly disproportionate to the crime
committed. Tarver was charged with possession of a large amount of marijuana with intent
to sell or distribute within 1,500 feet of a day care center. Although he did receive the
maximum possible sentence, it was within the statutory guidelines. Accordingly, we find
that the circuit court did not abuse its discretion, and this issue is without merit.
XII.
Tarver’s Motion to Suppress the Evidence from the Search Warrant
24
¶59.
Tarver’s twelfth assignment of error is that the circuit court abused its discretion in
denying his motion to suppress evidence. Tarver alleges that Chris Davis, the confidential
informant, provided false information to Greenwood law enforcement officials, and it was
that false information upon which the search warrant was granted. Davis’s original statement
was recorded and served as the basis for the search warrant; however, he later changed his
story and informed the circuit court that his statement had been false. Tarver also complains
that the circuit court erred by not informing the defense that Davis was the informant.
¶60.
This Court will only reverse a trial court’s ruling on the admission or suppression of
evidence if the trial court abused its discretion in making its decision. Culp v. State, 933 So.
2d 264, 274 (¶26) (Miss. 2005). On appeal, we look to determine whether there was
“substantial credible evidence to support the trial court’s findings.” Id. With regard to
disclosure of an informant’s identity, disclosure is not required “unless the confidential
informant is to be produced at a hearing or trial or a failure to disclose his/her identity will
infringe upon the constitutional rights of the accused or unless the informant was [an
eyewitness] or depicts himself/herself as an eyewitness to the event or events constituting the
charge” against the accused. Graves v. State, 767 So. 2d 1049, 1052 (¶9) (Miss. Ct. App.
2000).
¶61.
Tarver filed a motion to suppress to prevent the evidence that was seized from 506
Cypress Street from being presented at trial, but the motion was denied by the circuit court.
Davis alleged that an investigator with the Greenwood Police Department, Jerome
McCaskill, would tell him what to say, start the tape recorder, and then stop it in order to tell
Davis what to say next; however, the court rejected his story for three reasons. First, the
25
circuit court reviewed the tape and noted that it was only stopped one time, not repeatedly
as Davis contended. Second, the circuit court noted that “Davis related his information in
a detailed, unbroken narrative[,]” and “it would have been impossible for Mr. Davis to
remember that many facts, unless they were based on his personal knowledge.” Finally, the
court stated that “the veracity of [Davis’s] statement was borne out by the seizure of drugs
and guns at the address. The record is devoid of any fact which would indicate how Sgt.
McCaskill could possibly have known about the drugs and guns at the residence unless he
learned it from [Davis].”
¶62.
We agree with the circuit court’s decision that Tarver’s motion to suppress evidence
obtained from the search warrant should be denied. The Greenwood Police Department
enlisted the use of a confidential informant in good faith. That informant had been used on
previous occasions, and in this situation, Davis provided information that proved to be
accurate. We find that any recanting that may have been done by Davis after he gave his
original statement is irrelevant. Accordingly, this issue is without merit.
XIII.
¶63.
Fundamentally Fair and Impartial Trial
Tarver’s final assignment of error is that the accumulation of the alleged errors denied
him the right to a fundamentally fair and impartial trial. As a result, he claims that he should
be granted a new trial. We disagree.
¶64.
The Mississippi Supreme Court has held the following:
[u]pon appellate review of cases in which we find harmless error or any error
which is not specifically found to be reversible in and of itself, we shall have
the discretion to determine, on a case-by-case basis, as to whether such error
or errors, although not reversible when standing alone, may when considered
cumulatively require reversal because of the resulting cumulative prejudicial
26
effect.
Lynch v. State, 951 So. 2d 549, 555-56 (¶20) (Miss. 2007). In reviewing the record, we find
no evidence of any errors by the circuit court that interfered with Tarver’s right to a
fundamentally fair and impartial trial. We are mindful that “a criminal defendant is not
entitled to a perfect trial, only a fair trial.” Sykes v. State, 895 So. 2d 191, 196 (¶22) (Miss.
Ct. App. 2005) (quoting McGilberry v. State, 741 So. 2d 894, 924 (¶126) (Miss. 1999)).
Because we find that each of Tarver’s individual complaints is without merit, we find the
same to be true on this issue.
¶65. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF
CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO SELL,
TRANSFER, OR DISTRIBUTE AND SENTENCE OF SIXTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO
PAY A FINE OF $100,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS AND
CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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