James Lewis Fillyaw v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00542-COA
JAMES LEWIS FILLYAW
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:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/04/2008
HON. JAMES MCCLURE III
PANOLA COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF
PRECURSORS USED IN THE
MANUFACTURE OF A CONTROLLED
SUBSTANCE AND SENTENCED TO TEN
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE YEARS
SUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION
AFFIRMED: 05/05/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
James Lewis Fillyaw was convicted in Panola County Circuit Court of possession of
precursors used in the manufacture of a controlled substance. He was sentenced to a term
of ten years in the custody of the Mississippi Department of Corrections, with five years
suspended pursuant to five years of post-release supervision. On appeal, he claims that: (1)
the jury selection was improper, and (2) he received ineffective assistance of counsel at trial.
We find no error and affirm.
FACTS
¶2.
Craig Sheley, an off-duty police officer, observed Fillyaw and his cousin, Shannon
Looney, at the Walmart in Batesville, Mississippi buying what Officer Sheley believed to be
precursors used to make methamphetamine. Afterward, Officer Sheley left the Walmart and
called the sheriff, “Shot” Bright. Then Officer Sheley went to Murphy USA, a gas station,
and again saw the vehicle with Fillyaw and Looney. Meanwhile, the sheriff arrived at the
gas station along with a police officer.
¶3.
While Looney was in the gas station, a policeman approached Fillyaw’s vehicle and
asked to search it. Fillyaw gave the policeman permission to search the vehicle, whereupon
a number of items were taken into evidence. The items included two Walmart receipts that
showed purchases at 5:09 p.m. and 5:54 p.m. that day. Both receipts had purchases for pills
containing pseudoephedrine. Police also found a bottle of “Heat,” hydrogen peroxide,
lithium batteries, zip-lock bags, and plastic tubing in the vehicle. No methamphetamine was
found in the vehicle.
¶4.
The plastic tubing, lithium batteries, and pseudoephedrine were found in the glove box
where Looney was seated. The “Sudafed,” which contained pseudoephedrine, and the
hydrogen peroxide were found in the console. “Drain Out” was found in the back seat
behind the driver. Jason Chrestman commanded the Panola County narcotics task force and
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made a list of the items taken into evidence.
¶5.
At trial, Chrestman testified that pseudoephedrine, lithium, and “Drain Out” were
precursors and that the tubing could be used in the manufacturing process. Zabe Davis, an
agent with the “Narcotics Task Force,” testified to the use of sodium hydroxide and hydrogen
peroxide in the cooking process and to the purpose of pseudoephedrine.
¶6.
Teresa Hickman, a forensic scientist, was qualified as an expert for the State in the
identification of controlled substances. Hickman identified the pseudoephedrine and sodium
hydroxide as precursors and explained their role in the manufacture of methamphetamine.
¶7.
Looney testified that he and Fillyaw planned to cook methamphetamine that day.
They went to Walmart where Fillyaw bought the pseudoephedrine, and Looney bought the
drain crystals and hydrogen peroxide. On cross-examination, Fillyaw’s counsel attempted
to impeach Looney with his recent guilty plea in drug court, which potentially obviated the
significant time of imprisonment Looney was faced with. On redirect examination, Looney
testified that if he failed to complete drug court, then he would have to serve his full
sentence.
¶8.
Fillyaw took the stand in his own defense. He testified that he had planned to go
hunting when Looney came by and was “sniffing and draining.” So Fillyaw went to Walmart
to purchase “Sudafed,” hydrogen peroxide, and baby powder. When Fillyaw returned to his
truck, the other items were there. Fillyaw testified that he consented to the search because
he thought he had nothing to hide. Fillyaw admitted that he had used methamphetamine
before, but he denied that they were planning to manufacture methamphetamine on the day
that his vehicle was searched.
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¶9.
The jury returned a guilty verdict. Thereafter, Fillyaw appealed. Fillyaw’s counsel
filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005). Fillyaw’s counsel
stated that there were no arguable issues to support an appeal. In Lindsey, the Mississippi
Supreme Court proscribed the procedure to be followed when a defendant’s attorney does
not find any arguable issues to support an appeal. Id. at 748 (¶18). Following the Lindsey
procedure, Fillyaw filed a pro se supplemental brief. We find no error and affirm.
ANALYSIS
¶10.
Pursuant to Lindsey, 939 So. 2d at 748 (¶18), it is the appellate counsel’s
responsibility to determine that his client’s case presents no arguable issues on appeal; to file
a brief showing that counsel has thoroughly reviewed the record and has found nothing to
support an appeal; and, to send his client a copy of the brief, informing his client that he
found no arguable issue for an appeal and advising him of his right to file a pro se
supplemental brief. If the defendant raises any arguable issue in his pro se brief or if the
appellate court finds any arguable issues upon its independent review of the record, the
appellate court must, if circumstances warrant, require counsel to file a supplemental brief
of the issue. Id.
¶11.
Here, Fillyaw’s attorney filed a brief indicating that he diligently searched the
procedural and factual history of this action and scoured the record searching for any
arguable issues that could be presented in good faith, but he found none. Fillyaw’s attorney
asserts that he examined: (1) the reason for the arrest and the circumstances surrounding the
arrest of Fillyaw; (2) any possible violations of Fillyaw’s right to counsel; (3) the entire
transcript and content of the record; (4) all rulings of the trial court; (5) possible procedural
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misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not;
(8) possible misapplication of the law in sentencing; (9) the indictment and all the pleadings
in the record; and (10) any possible ineffective assistance of counsel issues.
¶12.
Fillyaw filed a supplemental brief. In his brief, he claims that the jury was not chosen
in a fair manner, and he appears to assert an ineffective assistance of counsel claim. After
a thorough review of the record, this Court found no arguable, non-frivolous issues.
1.
¶13.
Jury Selection
Fillyaw argues that the day before his hearing, “they went door to door and made
phone calls to round up seven” jury members. The essence of this argument is that Fillyaw
claims that the manner in which the jury members were chosen was not legal. We find
nothing in the record to support this claim.
¶14.
Additionally, we find no indication in the record that there was a Batson challenge
raised during the jury selection process. Hence, any such claim would be waived. Anderson
v. State, 2006-KP-00282-COA (¶18) (Miss. Ct. App. Sept. 9, 2008).1 Fillyaw’s appellate
attorney states that the transcript of the voir dire proceedings was not included in the record
because Fillyaw’s trial counsel saw no errors, made no objections, and neither raised nor
believed that there existed any reason to raise a Batson challenge.
¶15.
Finally, Fillyaw’s pro se brief on appeal cites no authority to support his challenge to
the jury selection process. Therefore, there is no merit to this issue.
2.
Ineffective Assistance of Counsel
1
The Mississippi Supreme Court denied writ of certiorari. Anderson v. State, 2006CT-00282-SCT (Miss. Feb. 5, 2009).
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¶16.
Fillyaw seems to argue that his attorney was ineffective by not having bond set for
Fillyaw. Fillyaw claims that his mother was putting up a deed to property to provide that
bond be set for Fillyaw, but Fillyaw’s attorney advised against having bond set since he
could not afford an attorney.
¶17.
To succeed on a claim for ineffective assistance of counsel, Fillyaw must show that
his counsel’s performance was deficient and that the deficiency prejudiced the defense of his
case.
Burns v. State, 813 So. 2d 668, 673 (¶14) (Miss. 2001) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Fillyaw fails to assert any facts or legal authority
to support his claim that his attorney’s actions were improper. Therefore, we find no merit
to this issue.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF
CONVICTION OF POSSESSION OF PRECURSORS USED IN THE
MANUFACTURE OF A CONTROLLED SUBSTANCE AND SENTENCE OF TEN
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO PANOLA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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