Jamar Amin Moore v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01375-COA
JAMAR AMIN MOORE
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
07/27/2009
HON. CHARLES E. WEBSTER
COAHOMA COUNTY CIRCUIT COURT
IMHOTEP ALKEBU-LAN
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF COUNT I, POSSESSION
OF HYDROCODONE, AND SENTENCED
TO SIXTEEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AS A HABITUAL
OFFENDER WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION
AFFIRMED - 04/05/2011
BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.
BARNES, J., FOR THE COURT:
¶1.
Jamar Moore appeals the Circuit Court of Coahoma County’s judgment convicting
him of possession of hydrocodone and sentencing him to sixteen years in the custody of the
Mississippi Department of Corrections (MDOC) as a habitual offender. Moore contends that
the trial court erred in (1) denying him his theory-of-the-case jury instruction; (2) failing to
grant a mistrial when he testified he did not want to return to prison; and (3) subjecting him
to cumulative error. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
In the early afternoon of April 16, 2008, Officers Ricky Bridges, Joseph Wide, Myette
Dawson, and Vincent Ramirez, members of the narcotics division of the Clarksdale Police
Department, were patrolling Clarksdale, Mississippi, in their unmarked city-owned vehicle.
Officer Wide received a call from a reliable confidential informant (CI) stating that Moore
had approximately two ounces of marijuana in his vehicle. Both Moore and the CI worked
at Domino’s Pizza in Clarksdale. The CI informed Officer Wide that Moore was preparing
to leave the store to make a large pizza delivery to a school. The officers drove to the store
and observed Moore loading pizzas into his vehicle. As Moore drove toward the school, the
officers followed him and performed a traffic stop when Moore failed to signal a turn. Moore
was informed that, in addition to the traffic offense, he had been stopped because a reliable
source stated he had marijuana in his vehicle. Once stopped, Officer Bridges approached
Moore’s vehicle and noticed the strong odor of marijuana emanating from it. No illegal
substances were found in Moore’s vehicle, but two sandwich-like baggies with a green, leafy
substance and some pills were found in Moore’s pants. These items proved to be marijuana
and eleven tablets of hydrocodone.
¶3.
Officer Wide testified that Moore and the CI were the only individuals working at
Domino’s at the time; so Cedric Bolton, another Domino’s employee and a friend of the CI,
was instructed by the CI to come and pick up the pizzas in order to deliver them to the
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school. In the meantime, Moore was transported to the police department, where he offered
to work off his charges by becoming a confidential informant. Law enforcement ultimately
agreed, and Moore was released without arrest.
¶4.
Moore did not adequately assist law enforcement as a CI; thus, in November 2008,
the grand jury of Coahoma County returned a two-count indictment against Moore for
possession of hydrocodone and marijuana. The trial court later granted the State’s motion
to amend Moore’s indictment to include his status as a habitual offender under Mississippi
Code Annotated section 99-19-81 (Rev. 2007).
¶5.
At Moore’s trial, the CI testified that he became an informant because someone “put
the dope on [him]”; so he was working off a charge for possession of marijuana. The CI
testified that he set Moore up by telling him to bring an ounce of marijuana to work the next
day, and Moore complied. The CI called Office Wide to tell him that Moore had the
marijuana with him, and approximately fifteen minutes later, Moore was pulled over. The
CI denied planting any drugs in the glove box of Moore’s vehicle.
¶6.
The defense’s theory of the case was that the CI had planted the marijuana on Moore.
However, Officers Wide and Dawson testified they did not tell the CI to plant the marijuana
in Moore’s vehicle or pants. Moore testified in his own defense. He claimed that Bolton was
at the store helping the CI make the large order of pizzas. Returning from a delivery, Moore
briefly went to the restroom. When he came out, Bolton and the CI had already loaded most
of the pizzas into his vehicle. Moore then proceeded to the school. When law enforcement
pulled him over, Moore went to retrieve his insurance card from his glove box; he was
surprised to see a bag of marijuana fall out. He also noticed another bag of marijuana “barely
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pushed up under the passenger’s seat.” Moore claimed that he then put the drugs in his pants
in order to hide them from the police. Moore speculates that the CI put the marijuana in his
vehicle. Regarding the hydrocodone pills, Moore admitted possession of them, claiming he
would take them occasionally for a back injury due to an accident. However, Moore also
admitted that he did not have a prescription for the pills; instead, he obtained the pills from
“various places, people.”
¶7.
At the end of his trial, Moore submitted a jury instruction on his theory of the case.
The State objected, and the trial court denied the jury instruction because it improperly
commented on the evidence and stated a theory as a fact.
¶8.
The jury found Moore guilty of Count I, possession of hydrocodone, but it found him
not guilty of Count II, possession of marijuana. At the sentencing hearing, evidence was
presented of Moore’s two prior felonies. Accordingly, the trial court sentenced Moore as a
habitual offender under section 99-19-81 to the maximum sentence of sixteen years in the
custody of the MDOC under Mississippi Code Annotated section 41-29-139 (c)(1)(C) (Rev.
2009), without the possibility of parole or probation. Moore now appeals.
ANALYSIS OF THE ISSUES
1.
¶9.
Jury Instruction
Moore contends that the trial court erred in denying his theory-of-the-case jury
instruction, which reads: “Jamar Moore’s theory of the case is that he would not have been
stopped and charged with these offenses if [the CI] had not put the marijuana in his car and
called the police and if you so find you must find Jamar Moore not guilty.” The trial court
denied the instruction, finding it improperly commented on the evidence and presented a
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theory as a fact.
¶10.
The standard of review for jury instructions is well established:
Jury instructions are to be read together and taken as a whole with no one
instruction taken out of context. A defendant is entitled to have jury
instructions given which present his theory of the case, however, this
entitlement is limited in that the court may refuse an instruction which
incorrectly states the law, is covered fairly elsewhere in the instructions, or is
without foundation in the evidence.
Austin v. State, 784 So. 2d 186, 192 (¶18) (Miss. 2001). “[I]f the instructions fairly announce
the law of the case and create no injustice, no reversible error will be found.” Williams v.
State, 803 So. 2d 1159, 1161 (¶7) (Miss. 2001).
¶11.
Moore cites to Manuel v. State, 667 So. 2d 590 (Miss. 1995) in support of his
argument. In Manuel, the Mississippi Supreme Court found reversible error in a homicide
case, in part, because the defendant was entitled to a jury instruction on her theory of selfdefense; and the trial court improperly failed to put this instruction into proper form. Id. at
593. The crux of the issue in Manuel, however, was that the trial court denied a theory of the
defense instruction because it was peremptory in nature and was the only theory of the
defendant’s defense to the jury. Additionally, in Manuel, the trial court failed in its duty to
make sure the instructions were in the proper form for submission to the jury. Manuel also
states that while a defendant “is entitled to have an instruction on the theory of [his] defense,
that instruction should not single out certain parts of the evidence to the point that it amounts
to a comment on the weight of the evidence.” Id. (citing Keys v. State, 635 So. 2d 845,
848-49 (Miss. 1994)).
¶12.
Here, the jury instruction Moore offered on his theory of the case did not include any
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type of defense; thus, the theory of his case is not relevant. Speculating on whether or not
Moore may have been stopped by law enforcement if the CI had not called the police is not
a legal defense. Further, the instruction stresses the notion that the CI planted the marijuana
on Moore, thereby improperly commenting on the weight of the evidence.
¶13.
Moore also claims that if his theory-of-the-case instruction had been given, it would
be reasonable to assume he would have been found not guilty of possession of hydrocodone.
We disagree. Moore admitted at trial that he had illegally possessed the hydrocodone pills.
This admission was sufficient for the jury to find him guilty of possession of hydrocodone.
Therefore, the trial court did not err in denying this jury instruction.
2.
¶14.
Officer Wide’s Testimonial Remark on Moore’s Prior Conviction
At Moore’s trial, during the direct examination of Officer Wide by the prosecutor,
Officer Wide recounted what had happened on April 16. The following colloquy occurred:
Q.
What happened next?
A.
We transported Mr. Moore down to the police department.
Q.
After you transported Mr. Moore down to the police department, did he
say anything to you?
A.
Yes, sir. We . . . was talking with him, advising him what was going
on, and he told us that he had been in trouble and all that and he didn’t
want to go back to prison. . . .
Defense counsel promptly objected, requesting that the jury be instructed to disregard the last
statement, and moved for a mistrial. The trial judge sustained the objection, granted the
requested instruction to the jury, but denied the motion for a mistrial. At the close of
evidence, the trial judge also gave the following jury instruction (C-1), which stated: “You
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should not speculate as to possible answers to questions which the Court did not require to
be answered. Further, you should not draw any inference from the content of those
questions. You are to disregard all evidence which was excluded by the Court from
consideration during the course of the trial.”
¶15.
Moore now argues he was prejudiced by this mention of his prior criminal history and
should have been granted a mistrial. He also mentions that this “unjustified question” brings
up the issue of prosecutorial misconduct.
¶16.
“The standard of review for denial of a motion for mistrial is abuse of discretion.”
Dora v. State, 986 So. 2d 917, 921 (¶8) (Miss. 2008). The trial court has “the discretion to
determine whether the objectionable comment is so prejudicial that a mistrial should be
declared.” Hampton v. State, 910 So. 2d 651, 655 (¶9) (Miss. Ct. App. 2005) (citing Edmond
v. State, 312 So. 2d 702, 706 (Miss. 1975)). “Absent unusual circumstances, where objection
is sustained to improper questioning or testimony, and the jury is admonished to disregard
the question or testimony, we will not find error.” Hill v. State, 4 So. 3d 1063, 1065-66 (¶16)
(Miss. Ct. App. 2009) (quoting Wright v. State, 540 So. 2d 1, 4 (Miss. 1989)). Moreover,
when the trial court instructs the jury, it is presumed the jury follows the instructions. Id.
(citing Puckett v. State, 737 So. 2d 322 (¶72) (Miss. 1999)).
¶17.
Here, the trial court admonished the jury to disregard Officer Wide’s testimony and
was given a written jury instruction to the same effect. Further, we find no evidence of
prosecutorial misconduct. The question was not stated to elicit an objectionable answer;
instead, Officer Wide volunteered the information. Accordingly, the trial court did not abuse
its discretion in denying Moore’s motion for a mistrial.
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3.
¶18.
Cumulative Error
Finally, Moore argues that even if the above errors standing alone do not constitute
reversible error, their cumulative prejudicial effect deprived him of a fair trial; thus, his
conviction should be reversed. The Mississippi Supreme Court has held: “Where there is no
error in any one of the alleged assignment of errors, there can be no error cumulatively.”
Hughes v. State, 892 So. 2d 203, 213 (¶29) (Miss. 2004) (citing Davis v. State, 660 So. 2d
1228, 1261 (Miss. 1995)). Because there was no individual error here, there can be no
cumulative error. This issue is without merit.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF POSSESSION OF HYDROCODONE AND SENTENCE OF
SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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