Rhonda Renea Simmons v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02255-COA
RHONDA RENEA SIMMONS
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
12/17/2007
HON. HENRY L. LACKEY
TIPPAH COUNTY CIRCUIT COURT
CATOUCHE JUDGE BODY
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
BENJAMIN F. CREEKMORE
CRIMINAL - FELONY
CONVICTED OF SALE OF COCAINE AND
SENTENCED TO TWENTY-FIVE YEARS,
WITH FIVE YEARS SUSPENDED, IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND
FIVE YEARS OF POST-RELEASE
SUPERVISION
AFFIRMED – 07/21/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Rhonda Renea Simmons was convicted by the Tippah County Circuit Court of the sale
of cocaine. She was sentenced to twenty-five years in the custody of the Mississippi
Department of Corrections, with five years suspended, and five years of post-release
supervision. Aggrieved, Simmons appeals and asserts: (1) that the trial court erred in
denying her motion for a change of venue, (2) that the trial court erred in allowing the trial
to proceed even though no African Americans were on the jury,1 and (3) that the trial court
erred in denying her motion to dismiss.
¶2.
Finding no reversible error, we affirm Simmons’s conviction and sentence.
FACTS
¶3.
On March 21, 2006, Simmons sold cocaine to Ronnie Rowland who, unbeknownst
to her, was working as a confidential informant for the Tippah County Sheriff’s Department.2
Rowland had known Simmons for several years. Immediately prior to making the buy,
Rowland met with Christopher McCallister, a narcotics investigator with the Tippah County
Sheriff’s Department, at a church parking lot near Simmons’s home. There, Rowland was
equipped with video and audio recording devices and issued a $100 bill. Rowland then
walked to Simmons’s home. According to Rowland, Simmons gave him five “pieces” of
crack cocaine in exchange for the $100 bill. Rowland stated that Simmons told him that she
had had a “good day” because she had sold “a bill,” or $100 worth of cocaine, to three other
people that day.
1
Actually, Simmons asserts in this issue that the trial court erred in allowing the trial
to go forward even though no African Americans were in the “jury pool.” Based on the
argument set forth in her brief, we conclude that Simmons is arguing that the trial judge
erred in allowing the trial to proceed even though there were no African Americans on the
petit jury, as Simmons concedes that there were African Americans in the venire.
2
Prior to becoming a confidential informant, Rowland, who was addicted to crack
cocaine, had been arrested and charged with selling cocaine to a confidential informant.
After his arrest, Rowland agreed to work with the sheriff’s department. The charge against
Rowland was still pending against him at the time of Simmons’s trial.
2
¶4.
Rowland then returned to the parking lot and gave the crack cocaine to Investigator
McCallister. It was then packaged, labeled, and placed in a safe at the Tippah County
Sheriff’s Department before being sent to the Mississippi Crime Laboratory in Jackson,
Mississippi, where it was determined to be cocaine.
¶5.
Simmons filed a motion for change of venue, a motion to suppress the videotape of
the buy, and a motion to dismiss. The Tippah County Circuit Court held a hearing on the
motions on November 13, 2007, and denied all of them. Simmons proceeded to trial, and the
jury convicted her, leading to this appeal.
¶6.
We find no reversible error; therefore, we affirm.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Motion for a Change of Venue
¶7.
In her first issue, Simmons contends that the trial court erred in denying her motion
for a change of venue. The law is clear in this State that “[t]he decision to grant [a] venue
change is in the sound discretion of the trial judge.” Gray v. State, 799 So. 2d 53, 62 (¶32)
(Miss. 2001) (citing Hoops v. State, 681 So. 2d 521, 526 (Miss. 1996)). Thus, an appellate
court “will not disturb the ruling of the [trial] court where the sound discretion of the trial
judge in denying change of venue was not abused.” Id. (quoting Harris v. State, 537 So. 2d
1325, 1328 (Miss. 1989)).
¶8.
In her motion, Simmons argued that she could not receive a fair trial in Tippah County
because “news of this incident has been widespread throughout this small county” and
because jurors may be prone to convict even in the face of weak evidence. She attached to
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her motion the affidavits of four residents of Tippah County who all stated that, based on
what they had “seen, heard, and observed” since Simmons’s arrest, they did not believe that
Simmons could receive a fair trial in Tippah County. We note at the outset that Simmons
failed to swear to her motion, as required by Mississippi Code Annotated section 99-15-35
(Rev. 2007), which provides:
On satisfactory showing, in writing, sworn to by the prisoner, made to the
court, or to the judge thereof in vacation, supported by the affidavits of two or
more credible persons, that, by reason of prejudgment of the case, or grudge
or ill will in the county where the offense is charged to have been committed,
the circuit court, or the judge thereof in vacation, may change the venue in any
criminal case to a convenient county, upon such terms, as to the costs in the
case, as may be proper.
(Emphasis added). Nevertheless, we briefly address this issue.
¶9.
During the hearing on Simmons’s motion, the State called two Tippah County
Supervisors, Dennis Grisham and Jimmy Gunn, as well as Tippah County tax collector, Joe
Larry Shackelford. All testified: (1) that they did not know Simmons, (2) that they had not
heard any publicity surrounding Simmons’s case, and (3) that they knew of no reason why
Simmons could not receive a fair trial in Tippah County. Thereafter, the trial judge denied
Simmons’s motion for a change of venue, and her case proceeded to trial.
¶10.
In her brief, Simmons relies on Hickson v. State, 707 So. 2d 536 (Miss. 1997) to
support her position that the trial judge erred in failing to grant her motion. In Hickson, our
supreme court held:
Where a defendant presents the court with an application for change of venue
accompanied by two affidavits which affirm the defendant’s inability to
receive a fair trial in a particular location, a presumption is created that it is
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impossible for a fair trial to be had in that place. This presumption may be
rebutted if the State proves from voir dire that the trial court impaneled an
impartial jury. If the State makes such a showing of impartiality, this Court
defers to the trial court’s denial of the change of venue request, even in the
face of adverse publicity, for the venue decision is, after all, within the
discretion of the lower court.
Hickson, 707 So. 2d at 541-42 (¶22) (citations omitted).
¶11.
During voir dire, the trial judge addressed Simmons’s concerns that she could not
receive a fair trial as follows:
BY THE COURT: Now, Ms. Simmons is charged with selling cocaine.
Simply because of the nature of the charge, is there any reason that you could
not be fair and impartial to her? Some people have had trouble in their
families and problems in their families because of that, and is there any reason
that you could not give her a fair and impartial trial?
****
BY THE COURT: Now, Ms. Simmons is an African-American. That must
not, cannot enter into your decision-making process. She’s represented by Mr.
Randolph Walker who is an African-American. That cannot, must not enter
into your decision-making process. What you will base your opinion upon and
your verdict, if one is reached, upon is the testimony of the witnesses that
come from the witness stand and the evidence that’s introduced. Is there any
reason because of Ms. Simmons’s race that it would make it more difficult or
would make it easier for you to find her guilty or not guilty? Would it weigh
on your mind one way or the other?
None of the venire persons indicated to the trial judge that they would have difficulty in
granting Simmons a fair trial. A jury was impaneled shortly thereafter.
¶12.
We defer to the trial judge’s decision to deny Simmons’s motion, as we find, based
on the questions asked by the trial judge and the lack of any affirmative responses thereto,
that an impartial jury was impaneled. There is no merit to this contention of error.
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2. Jury Selection
¶13.
Following jury selection, Simmons’s trial attorney filed a motion to quash the jury
panel, arguing that no African Americans were selected to serve on the jury even though
Tippah County has a twenty-percent minority population. Her attorney argued that Simmons
could not “get a fair trial unless there [was] some representation on the panel by a member
of her own race.” Simmons now argues that she was denied the right to an impartial jury
selected from a random cross-section of her community, as twenty-two minorities were
summoned for jury duty, but only six or seven reported for service.3
¶14.
The prosecutor responded that he did not know the number of African Americans who
had been summoned for jury duty. However, he noted that of the six African Americans who
had reported, only one was stricken for cause.4 The prosecutor argued that the trial judge
was not authorized to strike the jury panel, because a pattern of exclusion based on race was
not proven. The trial judge agreed.
3
Mississippi Code Annotated section 13-5-2 (Rev. 2002) provides:
It is the policy of this state that all persons selected for jury service be selected
at random from a fair cross section of the population of the area served by the
court, and that all qualified citizens have the opportunity in accordance with
this chapter to be considered for jury service in this state and an obligation to
serve as jurors when summoned for that purpose. A citizen shall not be
excluded from jury service in this state on account of race, color, religion, sex,
national origin, or economic status.
4
The prosecutor explained that the juror who was stricken for cause had previous
felony convictions for contributing to the delinquency of a minor, domestic violence, and
trespassing.
6
¶15. Simmons directs our attention to Duren v. Missouri, 439 U.S. 357, 364 (1979),
wherein the United States Supreme Court announced certain criteria that a defendant must
meet in order to establish a prima facie violation of the fair cross-section requirement:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
In Duren, the United States Supreme Court ruled unconstitutional a Missouri statute which
allowed for the exemption of all women from jury duty, if they so desired, because the
exemption unnecessarily diluted women from the jury pool in violation of the cross-section
requirement of the Sixth Amendment. Id. at 370.
¶16.
Clearly, African Americans are considered a “distinctive group in the community.”
However, Simmons failed to satisfy the remaining elements of the test: that “representation
of [African Americans] in venires from which juries are selected is not fair and reasonable
in relation to the number of such persons in the community; and . . . that this
underrepresentation is due to systematic exclusion of the group in the jury-selection process.”
A single venire wherein a distinctive group is under represented does not constitute
systematic exclusion of that group from the jury-selection process. This issue lacks merit.
3. Motion to Dismiss
¶17.
A motion to dismiss challenges the sufficiency of the evidence. Wright v. State, 958
So. 2d 158, 168 (¶27) (Miss. 2007) (citing Hawthorne v. State, 835 So. 2d 14, 21 (¶31)
(Miss. 2003)). “When reviewing the sufficiency of the evidence, [an appellate court] must
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ask whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (citing Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)).
¶18.
Simmons filed a motion to dismiss, asserting the affirmative defense of entrapment.
She argued that the State induced her to commit the crime and that she lacked predisposition.
She contends that the State orchestrated the crime and failed to show any predisposition on
her part. “Entrapment has been defined as ‘the act of inducing or leading a person to commit
a crime not originally contemplated by [the person], for the purpose of trapping [the person]
for the offense.’” Morgan v. State, 703 So. 2d 832, 835 (Miss. 1997) (quoting Walls v. State,
672 So. 2d 1227, 1230 (Miss. 1996)). Further, it has been established in our jurisprudence
that:
If the defendant already possesses the criminal intent, and the request . . .
merely gave the defendant the opportunity to commit what he or she was
already predisposed to do, entrapment is not a defense. Before a defendant can
raise the defense of entrapment, he or she is required to show evidence of
government inducement to commit the criminal act and a lack of
predisposition to engage in the criminal act prior to contact with government
agents.
Id. (citation omitted).
¶19.
Simmons failed to prove that the State induced or led her to sell crack cocaine to
Rowland. According to Rowland’s testimony, Simmons had been selling drugs earlier in the
day before he presented himself at her residence. Thus, it is clear that Simmons was already
predisposed to selling drugs; therefore, the defense of entrapment was not available to her.
We find no merit to this issue.
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¶20. THE JUDGMENT OF THE TIPPAH COUNTY CIRCUIT COURT OF
CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE
YEARS, WITH FIVE YEARS SUSPENDED, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POSTRELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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