Herbert Ernest Grayson v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01014-COA
HERBERT ERNEST GRAYSON
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
02/19/2008
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
MICHAEL W. CROSBY
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CONO A. CARANNA II
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF A
CONTROLLED SUBSTANCE WITH THE
INTENT TO DISTRIBUTE AND
SENTENCED TO TWENTY-FIVE YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED: 09/15/2009
BEFORE KING, C.J., GRIFFIS AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
Herbert Ernest Grayson was convicted in the Circuit Court of Harrison County of
possession of cocaine with the intent to distribute. He was sentenced to twenty-five years
in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Grayson
raises one issue on appeal, which we quote verbatim:
Does the Mississippi and United States Constitutions allow the defendant to
have the jury instructed that they should disregard the statement unless it was
free, voluntary, and not obtained through improper inducements?
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
The Gulfport Police Department received a tip from a confidential informant that
Grayson was storing and selling large amounts of drugs in his home. Thereafter, the police
department set up surveillance of Grayson’s home.
¶3.
On February 12, 2007, the police department obtained a search warrant for Grayson’s
home. On the same day, the surveillance team saw Grayson and Alfy Ray Adams (Alfy), a
friend of Grayson’s, leave Grayson’s home. Officer Windell Johnson conducted the traffic
stop. Officer Johnson asked Grayson if he had any illegal substances in the vehicle, and
Grayson said no. Grayson gave Officer Johnson consent to search his vehicle, and Officer
Johnson found four ounces of cocaine inside the vehicle.
¶4.
Thereafter, the police department searched Grayson’s home. Ashley Adams (Ashley),
Grayson’s pregnant girlfriend, and their two children were at the home when the police
officers arrived. During the search of Grayson’s home, the police found 187.4 grams of
cocaine, three bags containing a white powdery substance, a digital scale, and $14,600 in
cash. The police took Ashley, Alfy, and Grayson to the police department for questioning.
Grayson confessed to the crime.
¶5.
On August 27, 2007, Grayson was indicted for possession of cocaine with the intent
to distribute. Grayson’s trial commenced on February 19, 2008. During the trial, Grayson
made a motion to suppress his statement made to the police, arguing that his confession was
2
the product of duress and improper inducement.
¶6.
Outside of the presence of the jury, Officer Johnson testified that he read Grayson his
Miranda warnings, and Grayson signed a waiver. During the interrogation, Grayson initially
denied ownership of the drugs, claiming that the drugs belonged to Alfy. However, he
eventually confessed that the drugs belonged to him. Officer Johnson maintained that he did
not threaten Grayson or make any promises to him. Grayson testified that the drugs did not
belong to him. However, he testified that he only confessed to the crime because Officer
Johnson promised him that he would set Ashley free if he did so. Ashley was indeed
released from custody. Grayson testified that the promise was not documented on the
audiotape of his interrogation because Officer Johnson turned the tape off to discuss the deal
with him.
¶7.
The trial court found that the statement was made knowingly, intelligently, and
voluntarily. The statement was admitted into evidence, and Officer Johnson and Grayson
each testified regarding their version of events.
¶8.
Grayson submitted proposed jury instruction D-3 to the trial court, which charged the
jury to disregard his confession if the jury found that the confession was involuntary. The
trial court refused to give the instruction, stating that the admissibility of the statement was
a matter of law for the trial court’s consideration.
¶9.
The jury found Grayson guilty of possession of cocaine with the intent to distribute.
Grayson was sentenced to twenty-five years in the custody of the MDOC. Thereafter,
Grayson filed a motion for a judgment notwithstanding the verdict or, in the alternative, for
a new trial. The trial court denied the motion. Aggrieved, Grayson timely filed his notice
3
of appeal.
ANALYSIS
¶10.
Grayson argues that the jury should have been allowed to resolve the factual disputes
concerning the voluntariness of his statement. Thus, Grayson contends that the trial court
erred by refusing to give jury instruction D-3.
¶11.
This Court reviews the jury instructions given as a whole. Spicer v. State, 921 So. 2d
292, 313 (¶43) (Miss. 2006) (citing Parks v. State, 884 So. 2d 738, 746 (¶26) (Miss. 2004)).
A defendant is entitled to have jury instructions that present his theory of the case. Id.
However, the trial court may refuse to give any jury instruction which incorrectly states the
law, is duplicative, or where there is no evidentiary basis for giving the instruction. Id. If
the jury instructions given fairly announce the law and create no injustice, this Court will not
find any reversible error. See id.
¶12.
Grayson submitted jury instruction D-3, which reads as follows:
You are the sole judges of the facts in this case. You may consider the alleged
confession in light of the manner in which it was obtained and give it such
weight and credibility as you think it is entitled. Unless you believe from the
evidence beyond a reasonable doubt that the alleged confession was made by
the Defendant both truthfully and of his own free will, and was not the result
of any hope of regard or leniency, then you must disregard the alleged
confession to the extent that these facts tend to discredit it.
The trial court refused to give the jury instruction, finding that the admissibility of Grayson’s
confession was a matter for the trial court to decide.
¶13.
This Court addressed this issue in Moore v. State, 822 So. 2d 1100 (Miss. Ct. App.
2002). In Moore, the defendant argued that the trial court erred by refusing to give his
proposed jury instruction regarding the voluntariness of his confession, thereby denying him
4
a jury instruction on his theory of the case. Id. at 1107 (¶21). The proposed jury instruction
in Moore read as follows:
You may consider the alleged confession in the light of the manner by which
you find it was obtained and give it such weight and credibility as you think
it is entitled. Unless you believe from the evidence beyond a reasonable doubt
that the alleged confession was made by the Defendant, was truthful, was
accurately recorded, the Defendant understood what was said, and such
confession was made by the Defendant of his own free will and was not
extorted by threat of harm or promise of benefit, then you must disregard the
alleged confession to the extent that these facts tend to discredit it.
Id. at 1107-08 (¶22). This Court held that the voluntariness and admissibility of the
confession were questions for the trial court to decide, not the jury. Id. at 1108 (¶22) (citing
Ratliff v. State, 317 So. 2d 403, 404 (Miss. 1975)). The Court also found that “[a]lthough
[the defendant] is correct that he is entitled to an instruction on his theory of the case, he is
not entitled to an instruction that singles out particular pieces of evidence.” Id. (citing
Manuel v. State, 667 So. 2d 590, 592 (Miss. 1995)).
¶14.
Based on the foregoing, we find that the trial court did not err by refusing jury
instruction D-3 because the voluntariness and admissibility of Grayson’s confession were
issues for the trial court’s consideration. Additionally, like the proposed jury instruction in
Moore, jury instruction D-3 improperly singled out Grayson’s confession. The trial court
gave a jury instruction that charged the jury with its duty to weigh the credibility of all of the
evidence in the case; Grayson’s confession is naturally included in this charge to the jury.
We find that the jury instructions given fairly announced the law and created no injustice.
Grayson had the opportunity to present his theory of the case through the cross-examination
of Officer Johnson and during his own testimony. Based on the verdict, the jury simply did
5
not believe Grayson’s theory of the case. This issue is without merit.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH THE
INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY-FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.