BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Oct :47: KA COA Pages: 31 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MARVIN REROCUKUS DEMOND CARVER APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Hunter N. Aikens, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: Counsel for Marvin Carver

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MARVIN REROCUKUS DEMOND CARVER APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Marvin Carver, Appellant 3. Honorable Michael Guest, District Attorney 4. Honorable William E. Chapman, III, Circuit Court Judge This the 26 th day of October, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Hunter N. Aikens Hunter N. Aikens COUNSEL FOR APPELLANT i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF THE ISSUES I. The evidence was insufficient to support the verdict II. III. Carver s right to a fair trial was violated by the admission of evidence of his prior misdemeanor convictions, prior arrest for auto burglary, and the details of his prior convictions for sale of cocaine The trial court erred in sentencing Carver as a second or subsequent offender Mississippi Code Annotated Section STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. The evidence was insufficient to support the verdict II. III. Carver s right to a fair trial was violated by the admission of evidence of his prior misdemeanor convictions, prior arrest for auto burglary, and the details of his prior convictions for sale of cocaine The trial court erred in sentencing Carver as a second or subsequent offender Mississippi Code Annotated Section CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES FEDERAL CASES Jackson v. Virginia, 443 U.S. 307, 99 S.Ct (1979) Strickland v. Washington, 466 U.S. 668, 104 S.Ct (1984) STATE CASES Acevedo v. State, 467 So. 2d 220 (Miss. 1985) Anderson v. State, 724 So. 2d 475 (Miss. Ct. App. 1998) Berry v. State, 652 So. 2d 745 (Miss. 1995) , 12 Blackman v. State, 659 So. 2d 583 (Miss. 1995) Bounds v. State, 688 So. 2d 1362 (Miss. 1997) Bush v. State, 895 So. 2d 836 (Miss. 2005) Cox v. State, 849 So. 2d 1257 (Miss. 2003) Cunningham v. State, 583 So. 2d 960 (Miss. 1991) , 14, 15 Curry v. State, 249 So.2d 414 (Miss.1971) , 13 Davis v. State, 586 So. 2d 817 (Miss. 1991) Dixon v. State, 953 So. 2d 1108 (Miss. 2007) Ferrell v. State, 649 So. 2d 831 (Miss. 1995) , 15, 16 Flowers v. State, 773 So. 2d 309 (Miss. 2000) , 21 Floyd v. State, 166 Miss. 15, 148 So. 226 (1933) , 20 Floyd v. State, 155 So. 2d 883 (Miss. Ct. App. 2014) Fultz v. State, 573 So. 2d 689 (Miss. 1990) , 15, 16 iii

5 Gallion v. State, 469 So. 2d 1247 (Miss. 1985) Gilmore v. State, 119 So. 3d 278 (Miss. 2013) Griffin v. State, 293 So. 2d 810 (Miss. 1974) Hamm v. State, 735 So. 2d 1025 (Miss. 1999) , 15, 16 Hosey v. State, 77 So. 3d 507 (Miss. Ct. App. 2012) Jasper v. State, 759 So. 2d 1136 (Miss. 1999) Johnson v. State, 81 So. 3d 1020 (Miss. 2011) Jones v. State, 693 So. 2d 375 (Miss. 1997) , 14, 16 Mackbee v. State, 575 So. 2d 16 (Miss. 1990) Mitchell v. State, 110 So. 3d 732 (Miss. 2013) , 21 Quimby v. State, 604 So. 2d 741 (Miss. 1992) , 21 Ravencraft v. State, 989 So. 2d 437 (Miss. Ct. App. 2008) Robinson v. State, 35 So. 3d 501 (Miss. 2010) , 21 Sisk v. State, 290 So.2d 608 (Miss.1974) , 13 Skinner v. State, 790 So. 2d 218 (Miss. Ct. App. 2001) Taylor v. State, 167 So. 3d 1143 (Miss. 2015) Wells v. State, 160 So. 3d 1136 (Miss. 2015) , 23, 24 Vickery v. State, 535 So. 2d 1371 (Miss. 1988) , 13 Welch v. State, 566 So. 2d 680 (Miss. 1990) Welde v. State, 3 So. 3d 113 (Miss. 2009) Williams v. State, 54 So. 3d 212 (Miss. 2011) iv

6 FEDERAL STATUTES U.S. Const. amend. XIV STATE STATUTES Miss. Const. Art 3, Miss. Code Ann , 24 M.R.E M.R.E M.R.E. 404(b) , 20 M.R.E v

7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MARVIN REROCUKUS DEMOND CARVER APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES I. The evidence was insufficient to support the verdict. II. Carver s right to a fair trial was violated by the admission of evidence of his prior misdemeanor convictions, prior arrest for auto burglary, and the details of his prior convictions for sale of cocaine. III. The trial court erred in sentencing Carver as a second or subsequent offender Mississippi Code Annotated Section STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Madison County, Mississippi, and a judgment of conviction for one count of possession of more than 30 grams but less than 250 grams of marijuana entered against Marvin Rerocukus Demond Carver following a jury trial held on June 112-1

8 13, 2013, the Honorable William E. Chapmann, III, Circuit Judge, presiding. (C.P. 63, 68-70; R.E. 4, 8-10). Carver was represented at trial by Abraham Rowe, Esq. The trial court adjudged Carver a habitual offender under Mississippi Code Annotated Section and a second or subsequent offender under Mississippi Code Annotated Section and sentenced him to serve a term of six (6) years in the custody of the Mississippi Department of Corrections without the possibility of parole, probation or early release. (C.P , R.E. 8-10). Carver s trial attorney filed no post-trial motions and did not perfect Carver s appeal. Carver later filed with this Court a pro se motion for an out-of-time appeal and for appointment of appellate counsel, and this Court remanded the matter to the trial court for an evidentiary hearing. (C.P , R.E ). After the hearing, the trial court entered an order granting Carver s motion for an outof-time appeal and appointing the office of the undersigned to represent Carver on direct appeal. (C.P , R.E ). Carver is presently incarcerated in the custody of the Mississippi Department of Corrections and now appeals to this Honorable Court for relief. STATEMENT OF THE FACTS On November 23, 2011, Nicholas Ingram and Marvin Carver half-brothers who share the same father were traveling from Greneda, Mississippi, to the coast to visit Ingram s mother for Thanksgiving; Ingram s grandmother rented the vehicle for Ingram to take to the coast. (Tr ; ). Mississippi Highway Patrol Officer Wade Zimmerman pulled them over that night for speeding (88 miles per hour) on I-55 near Canton, Mississippi. (Tr ). Zimmerman requested identification from Ingram, who was driving, and Zimmerman noticed a strong odor of marijuana as he stood by the driver s side. (Tr. 59). Zimmerman asked Ingram to step out of the vehicle, 2

9 questioned him about whether he had been smoking marijuana, 1 and performed a field sobriety test on him. (Tr. 60). According to Zimmerman, Ingram consented to a search. (Tr. 60, 79). He searched the vehicle and found a.22 caliber pistol under the driver s seat, and he found a small bag containing a little stem of marijuana in the center console. (Tr. 60, 62, 67, 79, 143, Ex. S-1, S-4). Ingram told Zimmerman that the gun belonged to him. (Tr. 77). Zimmerman also got the key out of the ignition and searched the trunk where he found a digital scale and two larger bags of marijuana, one inside a manilla envelope and the other inside a white plastic bag. (Tr. 62, 71-72, 79, Ex. S-2, S-3, S-7). Zimmerman took Ingram and Carver into custody and put the marijuana in an evidence bag. (Tr ). He testified that $893 was recovered from Ingram s person at the jail. (Tr ). Zimmerman did not prepare a report of the incident. (Tr. 75). Candace Edwards of the Mississippi Bureau of Narcotics met Zimmerman at the Madison County Jail. (Tr ). Zimmerman turned the marijuana over to Edwards, and they obtained a signed waiver of rights form and a handwritten statement from Ingram. (Tr , 90-91, Ex. S-9, S-10). Ingram s statement read: I ve been smoking since a teenager. The weed that was with me was for my personal use and mine only. As well the firearm came into the situation because a dramatic event of a family member resulted in a death due to gun violence. So I felt like I should have one because we live in a unpredictable world. It was for my protection and it was a collectors it[em] so I was told. I didn t bother getting a firearm from the store because I felt that I already had one. I don t know everything that comes with obtaining a firearm and I thought that I was alright with keeping it with me. [] I work hard every day doing scrap ironing and landscaping. I have been saving my 1 Zimmerman testified that he told Ingram you have been [smoking marijuana] and Ingram admitted to smoking marijuana that day. (Tr. 60). 3

10 (Ex. S-10). funds for quite some time hoping to get good Christmas gifts from the Black Friday sale. I am a positive person and I have avoided negative environments to stay focused on the road to college. Edwards testified that Ingram also told her that he purchased two bags of marijuana for $300 at a bar in Greneda the day before, and he put the two bags in the trunk of the vehicle. (Tr , ). According to Edwards, Ingram also told her that he had smoked a marijuana cigarette, and the small amount of marijuana in the console was what left over from rolling it. (Tr. 98). Ingram also told Edwards that a family member had recently been shot and killed and, to protect himself, he purchased the.22 caliber pistol from a client for $100 about three months ago. (Tr. 99). Ingram told Edwards that he put the gun in the vehicle. (Tr. 111). Edwards agreed that Ingram took responsibility for possessing the marijuana and the gun. (Tr. 99). She did not ask Ingram whether Carver knew about the marijuana. (Tr. 113). Ingram told Edwards that the $893 was his, and he intended to use it to buy Christmas gifts at the Black Friday sales on the coast. (Tr. 105). Edwards also obtained a signed waiver of rights form and a handwritten statement from Carver. (Tr , Ex. S-11, S-12). Carver s statement read as follows: First of all, I am not covering for my little brother. He is his own man and can hold up for his own actions. I was going with him only because our grandma asked me to. We were going to see his mother (we have the same father). I knew Nothing of his possessing the firearm and by him knowing that I hate being around guns, he had kept it a secret until we got pulled over! The marijuana he had, I knew about because he said he had some weed for us to smoke for Thanksgiving. Me being the older square, as he calls me agreed to puff for the special occasion. I didn t know he had all that much marijuana until the police pulled it out of the trunk! He (my brother) keeps secrets about things of that nature because I fuss at him a lot about making crazy decisions. I constantly get on him to do right and learn from my past mistakes. My brother is not a bad person, he just got to learn to take giant steps to become a better man in life. My brother is 4

11 (Ex. S-12). responsible for the marijuana and holding the firearm secretly. He, (my brother (Nicholas), picked me up from the house after calling me to be ready. I quickly packed my things to take the trip because it was holidays and I was eager to take the trip to the coast. Edwards testified that Carver also told her that he had just served over nine years in prison for a drug possession charge. (Tr. 100). Edwards also recalled that Carver told her that his grandmother asked him to accompany Ingram to the coast, and he talked to Ingram at the last minute packed quickly for the trip. (Tr. 100). Edwards testified that Carver told her that he did not know about the gun, and he knew that Ingram had some marijuana. (Tr. 100). The prosecutor asked Edwards on direct-examination if Carver had any prior convictions. Edwards testified that Carver had a 1998 auto burglary charge that was dismissed by the Court, an arrest in 1999 which is the one he was incarcerated for nine plus years, and 2010 misdemeanors for default in payment of restitution, driving with a suspended license and disregard of traffic device. (Tr ). The prosecutor also presented Edwards with a copy of Carver s pen pack and asked if it contained any information inconsistent with what Carver told her regarding his criminal history. (Tr ). Edwards then testified that the pen pack says that he was sentenced in 2000 for 14 years, and he told me that it was nine. (Tr. 107). Edwards delivered the marijuana to the crime lab for testing. (Tr. 109, Ex. S-13). Forensic scientist Archie Nichols testified as an expert in drug identification. (Tr. 115). Nichols tested the three bags of marijuana submitted by Edwards, 2 and his testing confirmed that each tested positive 2 Nichols reports identified that submissions as follows: Evidence Submission 1, One heat sealed plastic bag containing a plastic bag which contains a green leafy substance; Evidence Submission 2, One heat sealed plastic bag containing a plastic bag which contains a green leafy substance; Evidence Submission 3, One heat sealed plastic bag containing a plastic 5

12 for marijuana in the following amounts: 61.7 grams, 45.9 grams, and 0.2 grams. (Tr. 117, Ex. S-14). In total, the three submissions contained grams of marijuana, or 3.8 ounces. 3 (Tr ). Nichols testified when he receives evidence submission forms they include the name of a suspect, and the submission form he received in this case named Nicholas M. Ingram as the suspect. (Tr , Ex. S-13). Ingram and Carver were jointly charged with one count of possession of 30 grams but less than one kilogram of marijuana with intent to distribute, and one count of conspiracy to possess 30 grams but less than one kilogram of marijuana with intent to distribute. (C.P. 4-5). Ingram plead guilty prior to Carver s trial. (Tr. 130). Ingram testified in Carver s defense. Ingram testified that he and Carver were going to visit Ingram s mother on the coast for Thanksgiving. (Tr. 126). Ingram decided to take the trip a couple days before Thanksgiving after he talked to his mother and learned that some of his other family members were going to spend Thanksgiving on the coast. (Tr. 127). Ingram explained that his 1990 Chevy Caprice had an expired tag and that he had not driven it for several months because it did not run well, so Ingram s grandmother rented a car for him to take. (Tr , ). Ingram testified that he and Carver did not discuss the trip in detail; instead, Ingram contacted Caver right before he left, mentioned going to the Bayou Classic football game 4 the day after Thanksgiving, and Carver wanted to go because he had never been before. (Tr ). Ingram testified that he put the marijuana in the trunk outside of Carver s presence, and he bag containing multiple plastic bags which contain a green leafy substance. (Ex. S-13, S-14). 3 Nichols testified that there are grams in an ounce. (Tr. 117). 4 The Bayou Classic is the annual college football game between teams from the Southwester Athletic Conference. (Tr ). 6

13 did not tell Carver that he had put the marijuana in the trunk. (Tr ). Ingram put the gun underneath the driver s seat before he picked-up Carver, and he did not tell Carver about the gun either. (Tr. 130). Ingram testified that he did not intend to sell or distribute the marijuana and that it was only for my personal consumption to and maybe smoke with a couple of people at holiday time and in the spirit of the holiday, I was going to freely smoke with others and for my own personal consumption. (Tr. 134, 146). He testified that he told Zimmerman that he had smoked marijuana earlier that day, but not in the vehicle. (Tr. 141). Ingram testified that he and Carver did not smoke marijuana between Grenda and Madison, and he acknowledged that there was a little baggy of mine in the console. (Tr. 142). Ingram maintained that his written statement to Edwards was true. (Tr , Ex. S-10). He testified that he told Edwards that Carver did not know about the marijuana in the trunk or the gun under the driver s seat, and he explained that Carver would not have rode with him if he knew that I had all of this in my personal possession.... (Tr ). Ingram testified that the $893 on his person did not come from selling any of the marijuana; instead he had saved the money to buy Christmas presents at the Black Friday sales on the coast. (Tr ). Through Ingram, the defense introduced a signed written statement prepared by Ingram and his lawyer at the Madison County Jail. (Tr , Ex. D-1). That statement read: I am Nicholas Ingram and I owned the approximately 4 ounces of marijuana I had in the trunk of a rental car on the day before Thanksgiving The Ruger.22 pistol was under the drivers seat and it was also mine. My [half] brother, Carver, did not know the gun or marijuana was in the car. I was the driver and I had picked up Carver in Greneda, MS where I live. The officer told me to get out of the car and asked me if he could search the car. He just started searching and asked me if I had drugs or marijuana in the car. He did not read me my Miranda rights that day. They were read to me the day I went to court. 7

14 (Ex. D-1). Carver testified in his own defense at trial. Carver initially planned to spend Thanksgiving in St. Louis, Missouri, with his mother, grandmother and sisters. (Tr. 156). He explained that he decided to go the coast with Ingram after his grandmother told him that Ingram was going and suggested that he ride down there with him. (Tr. 156). Carver testified that he had never been to the coast before, so he decided to go with Ingram. (Tr. 157). Carver recounted that he confirmed the trip with Ingram briefly by phone shortly before Ingram left; he packed quickly; and Ingram picked Carver up at the house he (Carver) and his girlfriend shared in Greneda. (Tr ). Carver testified that he and Ingram did not smoke marijuana in the car on the day question. (Tr ). Carver acknowledged that when he talked to Ingram on the phone, Ingram mentioned that he will smoke some marijuana with me for thanksgiving. (Tr. 162). However, Carver explained that Ingram didn t tell me where it was or if he already had it or, you know, was going to buy it or whatever. I didn t know... he didn t mention where or when he was going to have the marijuana or anything like that. (Tr. 162, 171). Carver testified that he did not know about the marijuana in the trunk or the gun under driver s seat, and he first learned that there was marijuana in the trunk when Zimmerman pulled it out during the search. (Tr , , 172). The jury received instructions on possession of 30 grams but less than one kilogram of marijuana with intent to distribute, the lesser-offense of simple possession of 30 grams but less than 250 grams of marijuana, and conspiracy to possess 30 grams but less than one kilogram of marijuana with intent to distribute. (C.P ). The returned a verdict finding Carver not guilty of conspiracy and guilty of possession of 30 grams but less than 250 grams of marijuana. (C.P , R.E. 4-5). SUMMARY OF THE ARGUMENT The evidence was insufficient to support the verdict, and the verdict was against the 8

15 overwhelming weight of the evidence. The evidence failed to prove beyond a reasonable doubt that Carver constructively possessed the marijuana. The evidence failed to show that Carver had knowledge of the marijuana in the trunk. Even if the evidence was minimally sufficient to establish that Carver had knowledge of the marijuana in trunk, the evidence failed to establish that he intentionally and consciously possessed the marijuana by exercising dominion and control over it. Mere presence is insufficient, and the State failed to present competent evidence of additional incriminating circumstances. The State, therefore, failed to prove beyond a reasonable doubt that Carver constructively possessed the marijuana in the trunk, and Carver is entitled to have this Court reverse his conviction and sentence and render a judgment of acquittal in hisfavor. Carver was denied a fair trial by the admission of evidence of his prior auto burglary arrest in 1998, his prior misdemeanor convictions for default in payment of restitution, driving with a suspended license and disregard of traffic device, and evidence of details (the sentence he served) underlying his conviction(s) for sale of cocaine. This evidence was inadmissible under Mississippi Rules of Evidence 403, 404, and 609. The admission of this evidence prejudiced Carver s substantial fundamental right to a fair trial. Accordingly, Carver requests this Court to reverse and remand this case for a new trial. The trial court erred in sentencing Carver as a second or subsequent drug offender and doubling his sentence under Mississippi Code Annotated Section The trial court erroneously believed that it had no discretion but to apply Section as long as the State provided proof of Carver s prior conviction(s) to support it s request to sentence Carver under that section. Under Wells v. State, 160 So. 3d 1136, 1146 ( 30) (Miss. 2015), remand for resentecing is appropriate under these circumstances. 9

16 ARGUMENT I. The evidence was insufficient to support the verdict. The evidence was insufficient to support the jury s verdict finding Carver guilty of possession of 30 grams but less than 250 grams of marijuana. (C.P. 63, R.E. 4). The evidence was insufficient to prove beyond a reasonable doubt that Carver was aware of the presence and character of the marijuana in the trunk of the car or that he intentionally and consciously possessed the marijuana constructively by exercising dominion and control over it. The car was not in Carver s exclusive possession, and the State failed to present competent evidence to show additional incriminating circumstances in addition to mere proximity connecting Carver to the marijuana in the trunk. Accordingly, Carver requests this Court to reverse his conviction and sentence and render a judgment of acquittal in his favor. The pertinent inquiry in reviewing the sufficiency of the evidence is whether, 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. Bush v. State, 895 So. 2d 836, 843 ( 16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, (1979)). If any facts or inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. Johnson v. State, 81 So. 3d 1020, 1023 ( 6) (Miss. 2011) (quoting Bush, 895 So. 2d at 843). [P]ossession of a controlled substance may be actual or constructive.... Johnson, 81 So. 3d at 1023 ( 7) (quoting Berry v. State, 652 So. 2d 745, 748 (Miss. 1995)). The State presented no evidence that Carver was in actual possession of marijuana; therefore, the State was required to prove beyond a reasonable doubt that Carver constructively possessed the marijuana. 10

17 To establish constructive possession: [T]here must be sufficient facts to warrant a finding that defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Where [, as here, 5 ] the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Vickery v. State, 535 So. 2d 1371, 1378 (Miss. 1988) (quoting Sisk v. State, 290 So.2d 608 (Miss.1974). The State presented insufficient evidence to prove beyond a reasonable doubt that Carver was aware of the presence and character of the marijuana in the trunk or that he intentionally and consciously possessed the marijuana constructively by exercising dominion and control over it. The evidence established that Ingram rented the car with his grandmother, and Ingram was driving the car. (Tr ; ). Ingram admitted to police that the marijuana belonged to him, he purchased it in Greneda, and he put the marijuana in the trunk of the car. (Tr , , Ex. S-10). Ingram also testified that he put the marijuana in the trunk outside of Carver s presence and did not tell Carver that did so. (Tr ). Ingram testified that he told Edwards that Carver did not know about the marijuana or the gun, and he explained that Carver would not have rode with him if he knew that I had all of this in my personal possession.... (Tr ). Similarly, Carver testified that if he had known about the marijuana in the trunk and the gun under the seat, I wouldn t have rolled with [Ingram], and he knows that. That s why he didn t tell me. (Tr. 160). Carver s 5 The evidence established that the car was not in Carver s exclusive possession. Instead, the evidence showed that Ingram almost exclusively controlled the car. Ingram and his grandmother rented the car, and Ingram was driving the car. (Tr ; ). 11

18 written statement to police swore that he [d]idn t know [Ingram] had all that much marijuana until the police pulled it out of the trunk! (Ex. S-12). Carver s written statement and testimony revealed that he was aware only that Ingram would have some weed to smoke on Thanksgiving; and Carver explained that Ingram didn t tell me where it was or if he already had it or, you know, was going to buy it or whatever. I didn t know... he didn t mention where or when he was going to have the marijuana or anything like that. (Tr. 162, 171). Carver testified that he did not know that there was marijuana in the trunk until Zimmerman pulled it out during the roadside search. (Tr , , 172). Both Ingram and Carver testified that they did not smoke marijuana in the car on the day in question. (Tr. 142, ). Zimmerman and Edwards testified that Ingram told them that he had smoked marijuana. 6 (Tr. 60, 98). While Zimmerman and Edwards testimony on this point suggests that Carver might have been aware that Ingram smoked a small amount of marijuana in the car or that Carver himself smoked a small amount of marijuana with Ingram inside the vehicle, the evidence failed to establish that Carver was aware that Ingram had a larger quantity of marijuana in the trunk or that Carver intentionally and consciously possessed the large quantity of cocaine in trunk by exercising joint dominion and control over it. See generally, Dixon v. State, 953 So. 2d 1108, 1112 ( 9) (Miss. 2007) ( Possession of a controlled substance may be... individual or joint. ) (citing Berry, 652 So. 2d at 748). 7 6 According to Edwards, Ingram told her that he had smoked a marijuana cigarette, and the small amount of marijuana in the console was what left over from rolling it. (Tr. 98). According to Zimmerman, he told Ingram you have been [smoking marijuana] and Ingram admitted that he had been smoking. (Tr. 60). 7 In Dixon, the Court reversed the defendants convictions for the total amount of drugs recovered where the evidence was insufficient to prove possession by each of them of the total amount. Dixon v. State, 953 So. 2d 1108, ( 3-20) (Miss. 2007). 12

19 This case is a prime example of a person being held guilty by association. Association will not suffice to satisfy the requirements [for constructive possession] set forth in Sisk v. State, 290 So. 2d 608 (Miss. 1974) and Curry v. State, 249 So. 2d 414 (Miss. 1971). Vickery, 535 So. 2d at 1379). Our Supreme Court has previously reversed convictions for constructive possession of a controlled substance where the defendant was a passenger in another s vehicle in which drugs were found. See, e.g., Hamm v. State, 735 So. 2d 1025 (Miss. 1999); Jones v. State, 693 So. 2d 375 (Miss. 1997); Cunningham v. State, 583 So. 2d 960 (Miss. 1991). In Hamm, the defendant was riding as a passenger in her husband s eighteen wheeler when police stopped it at a weigh station after noticing that it was speeding. Hamm v. State, 735 So. 2d 1025, 1026 ( 2-3) (Miss. 1999). The driver provided consent to search, and police found a tin containing a small amount of marijuana in a closet behind the truck seats. Id. at 1026 ( 4). Police then searched the trailer and found several bags containing 196 pounds of marijuana, a box containing methamphetamine, and $6,000. Id. at ( 5-6). The defendant was convicted of possessing more than one kilogram of marijuana with intent to distribute and possession of methamphetamine. Id. at ( 7). On appeal, the Court reversed, finding that [t]here was no competent evidence which linked Terri Hamm to the any of the contraband... The fact that marijuana and marijuana cigarettes were found in the cab of the truck is of no help to the State s case. Id. at 1030 ( 17). In Jones, the defendant was riding from New Orleans to Georgia in another s car. Jones v. State, 693 So. 2d 375, 375 (Miss. 1997). A gas station attendant saw drugs in the driver s possession when the driver paid for gas, the attendant notified police, and police pulled the car over and discovered a small amount of marijuana inside a jacket in the back seat and twelve pounds of marijuana in the trunk. Id. at The passenger was convicted of constructively possessing 13

20 more than one kilogram of marijuana, and the Court reversed his conviction on appeal because the passenger was not found in actual possession of the marijuana, he did not own the vehicle or jacket and did not drive the vehicle, and nothing connected the passenger to the drugs except his presence. Id. at 377. In Cunningham, the defendant was a passenger in a vehicle owned and driven by another. Cunningham v. State, 583 So. 2d 960, 961 (Miss. 1991). Police stopped the vehicle for weaving; the driver consented to a search; police found a bottle containing cocaine on the passenger floorboard; and the passenger was convicted of possessing it. Id. On appeal, the Court reversed, holding that [w]hen contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained. Id. at 962. In so doing, the Court rejected the State s suggestion that constructive possession was established by the additional, incriminating circumstances that the passenger and driver were good friends and that any drugs owned by one was likely owned by both: It cannot be presumed that, simply because two people associate with one another, they are accomplices in a common crime. Id. The Court has also reversed convictions for constructive possession where the defendant was the sole occupant and driver of another s vehicle in which drugs were found. See, e.g, Ferrell v. State, 649 So. 2d 831 (Miss. 1995); Fultz v. State, 573 So. 2d 689 (Miss. 1990). In Ferrell, the defendant was pulled over for speeding while driving another s car. Ferrell v. State, 649 So. 2d 831, 832 (Miss. 1995). Police searched the vehicle and found a matchbox containing nine rocks of crack cocaine between the two front seats. Id. at The defendant was convicted of possession of cocaine and appealed. On appeal, the Court reversed and rejected the State s contention that sufficient additional circumstances connecting the defendant to the drugs were shown because the 14

21 defendant drove the car for fifteen hours preceding the stop and the drugs were located near him in between the seats. Id. at In Fultz, the defendant was driving another s vehicle when police puled him over for driving erratically. Fultz v. State, 573 So. 2d 689, 689 (Miss. 1990). The defendant was arrested for driving under the influence, and police found a small amount of marijuana in the defendant s wallet and 7.5 ounces of marijuana in a duffle bag in the trunk. Id, at 690. Although defendant denied knowledge of the marijuana in the trunk, he was convicted of possessing more than on ounce of marijuana with intent to sell. Id. at On appeal, the Court reversed, finding that [t]he only additional incriminating circumstance was that the defendant had a small amount of marijuana on his person at the time of the arrest. Id. at 691. The Court also rejected the state s contention that the evidence created a sufficient connection between the defendant and the marijuana in the trunk because the defendant admitted smoking marijuana and made several unexplained stops that night. Id. The holdings in the analogous cases of Hamm, Jones, Cunningham, Ferrell and Fultz set forth several propositions applicable to the instant case. The Court in Ferrell noted that where, as here, the premises are not in the exclusive control of the defendant, [t]he State must show additional circumstances which are actually incriminating in order to establish constructive possession. Ferrell, 649 So. 2d at 835 (emphasis added). As Cunningham found, Carver and Ingram s relationship as half-brothers does not constitute an additional incriminating circumstance that connects Carver to Ingram s drugs in the trunk. 8 Also, the presence of a small amount of marijuana 8 See Cunningham, 583 So. 2d at 962. ( The State asserts that... Mr. Sipp [the driver] and Mr. Cunningham [the passenger] were good friends, and any contraband owned by one was more likely than not owned by both. It cannot be presumed that, simply because two people associate with one another, they are accomplices in a common crime. ). See also generally, Hamm, 735 So. 2d at 1031 ( 21) ( In the present case, the evidence shows that the contraband was located in the locked trailer of the truck in which Terri Hamm was riding in as a passenger. 15

22 in the car does is not an additional incriminating circumstance connecting Carver to Ingram s large quantity of marijuana in trunk with sufficient force to support a finding of constructive possession. See Hamm, 735 So. 2d at 1030 ( 17) ( The fact that marijuana and marijuana cigarettes were found in the cab of the truck is of no help to the State s case. ); see also generally, Jones, 693 So. 2d at 376 (small amount of marijuana in a jacket inside car; 12 pounds of marijuana in the trunk); Fultz, 573 So. 2d at 690 (defendant had small amount of marijuana on person; 7.5 ounces in trunk of sister s car). Further, the fact that Ingram s marijuana was locked in the trunk weighs against a finding of constructive possession. See Hamm, 735 So. 2d at 1031 ( 21) ( the evidence shows that the contraband was located in the locked trailer of the truck in which Terri Hamm was riding in as a passenger. ); Ferrell, 649 So. 2d at 835 ( Just as in Fultz, the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. ). The evidence in this case showed that Carver rode as a passenger in a vehicle that Ingram operated and controlled. Ingram had placed his large quantity of marijuana in the trunk the car where it was not reasonably apparent to a person riding in the passenger seat. Even assuming for argument sake that Ingram had smoked a small amount of marijuana in the presence of or with Carver inside the cab of the car, the evidence failed to establish beyond a reasonable doubt that Carver intentionally and consciously possessed the marijuana in the truck by exercising joint dominion and control over it. Aside from Carver s proximity to the drugs and his association with Ingram, the State failed to present sufficient competent evidence of additional circumstances that connect Carver to the large quantity of marijuana that Ingram secreted in the trunk of the car. The evidence failed to establish that Carver intentionally and consciously exercised any dominion or control over [Her husband] Thomas Hamm was both the owner and operator of the truck. ). 16

23 Ingram s marijuana in the trunk of the car. Therefore, the evidence was insufficient to prove that Carver constructively possessed the marijuana in the trunk of the car. The State s attempt to impute Ingram s possession of the marijuana in the trunk to Carver on the basis of accomplice liability likewise fails. The law of this State provides that: To be convicted as an accessory the defendant must possess the mens rea for the commission of the crime... An accomplice may be convicted of accomplice liability only for those crimes as to which he personally has the requisite mental state. He must have a community of intent for the commission of the crime. Welch v. State, 566 So. 2d 680, 684 (Miss. 1990) (citation omitted). Because the State failed to prove that Carver exercised dominion or control over the marijuana in the trunk or that he otherwise intentionally and consciously possessed it, the evidence failed to establish that Carver had the requisite mental state to be convicted on the theory of accomplice liability. It is well settled that in the absence of a conspiracy to commit a homicide, the mere presence of a person is not sufficient even though such person might have approved of the crime. Griffin v. State, 293 So. 2d 810, 812 (Miss. 1974) (citations omitted). Guilt by association is neither a recognized nor tolerable concept in our criminal law. Davis v. State, 586 So. 2d 817, (Miss. 1991) (citation omitted). The evidence did not establish beyond a reasonable doubt that Carver had knowledge of presence and character of the marijuana in the trunk. Even assuming for argument s sake that Carver was aware that Ingram had some marijuana inside the cab of the vehicle, the evidence was insufficient to prove beyond a reasonable doubt that Carver intentionally and consciously possessed the marijuana in the truck by exercising dominion and control over it. The evidence was insufficient to support the verdict, and Carver requests this Court to reverse his conviction and sentence and render a judgment of acquittal in his favor. II. Carver s right to a fair trial was violated by the admission of evidence of his prior misdemeanor convictions, prior arrest for auto burglary, and 17

24 the details of his prior convictions for sale of cocaine. Carver s right to a fair trial was violated by the admission of evidence of his prior misdemeanor convictions, his prior arrest for auto burglary, and the details (the sentence he served) of his prior convictions for sale of cocaine. Prior to trial, the State filed a motion in limine to admit evidence that Carver was previously convicted of the crime of sale cocaine (three counts) in order to show intent to distribute. (C.P ). Prior to Agent Edwards trial testimony, the trial court granted the State s motion and ruled that [t]he next witness will be allowed to testify about the three prior sale of cocaine convictions. (Tr. 87). On direct-examination, the prosecutor asked Edwards if Carver had any prior convictions. Edwards then testified that Carver had a 1998 auto burglary charge that was dismissed by the Court, an arrest in 1999 which is the one he was incarcerated for nine plus years, 9 and 2010 misdemeanors for default in payment of restitution, driving with a suspended license and disregard of traffic device. (Tr ). The prosecutor then presented Edwards with a copy of Carver s pen pack and asked if it contained any information inconsistent with what Carver told her regarding his criminal history. (Tr ). Edwards then testified that the pen pack says that he was sentenced in 2000 for 14 years, and he told me that it was nine. (Tr. 107). Edwards testified that Carver also told her that he had just served over nine years in prison for a drug possession charge. (Tr. 100). The Mississippi Constitution guarantees that [n]o person shall be deprived of life, liberty, or property except by due process of law. Miss. Const. of 1890, Art. 3, 14; see also U.S. Const. amend. XIV. Due process requires that a criminal prosecution should be conducted according to 9 Edwards had previously testified that Carver had just served over nine years in prison for a drug possession charge. (Tr. 100). 18

25 established criminal procedures. Flowers v. State, 773 So. 2d 309, 318 ( 23) (Miss. 2000) (citing Mackbee v. State, 575 So. 2d 16, 24 (Miss. 1990)). This Court has adopted the Mississippi Rules of Evidence to establish procedures to guide the admissibility of relevant evidence. Flowers, 773 So. 2d at 318 ( 23) (citing Mackbee, 575 So. 2d at 23 24). The standard of review for the admission or exclusion of evidence is abuse of discretion. Williams v. State, 54 So. 3d 212, 213 ( 5) (Miss. 2011) (citation omitted). However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Cox v. State, 849 So. 2d 1257, 1268 ( 36) (Miss. 2003)(citation omitted). Absent an exception, [g]enerally, evidence of any crime other than the one for which the defendant is being tried is not admissible. Gilmore v. State, 119 So. 3d 278, 289 ( 25) (Miss. 2013) (quoting Welde v. State, 3 So. 3d 113, 117 (Miss. 2009)). Evidence of other crimes and bad acts tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. Robinson v. State, 35 So. 3d 501, 506 ( 15) (Miss. 2010) (quoting Floyd v. State, 166 Miss. 15, 148 So. 226, 230 (1933)). Mississippi Rule of Evidence 404(b) governs the admissibility of evidence of other crimes, wrongs, or acts. Mitchell v. State, 110 So. 3d 732, 734 ( 10) (Miss. 2013). Rule 404(b) provides that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. M.R.E. 404(b). Rule 404(b) [e]xists to prevent the State from suggesting that, since a defendant has committed other crimes previously, the probability is greater that he is also guilty of the offense for which he is presently charged. Robinson, 35 So. 3d at

26 ( 15) (quoting Jasper v. State, 759 So. 2d 1136, 1141 (Miss. 1999)). Carver acknowledges that evidence that he was previously convicted of sale of cocaine was admissible under Rule 404(b) to prove intent to distribute. See Floyd v. State, 155 So. 3d 883, 888 ( 12) (Miss. Ct. App. 2014) ( [I]t is settled in Mississippi jurisprudence that under [Rule] 404(b) evidence of prior sales is admissible to show or prove intent to distribute. ) (quoting Hosey v. State, 77 So. 3d 507, 516 ( 34) (Miss. Ct. App. 2012)). However, evidence that Carver had a prior auto burglary charge and prior misdemeanor convictions for default in payment of restitution, driving with a suspended license and disregard of traffic device was inadmissible under Rule 404(b) because such evidence does not serve a permissible non-character other purpose. Carver s 1998 charge for auto burglary and his prior misdemeanor convictions are not relevant to Carver s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident concerning the possession of marijuana charge at issue. Instead, the introduction of evidence of these prior bad acts served only to prejudice Carver s jury by suggesting that Carver is guilty of the present offense because he has previously committed other crimes and bad acts. Evidence of Carver s prior misdemeanor convictions were also inadmissible under Rule 609, which [r]estricts the use of convictions to those for which the penalty is death or imprisonment for one year or more or those involving dishonesty or false statement. Blackman v. State, 659 So. 2d 583, 585 (Miss. 1995) (quoting M.R.E. 609(a)); see also, Quimby v. State, 604 So. 2d 741, 745 (Miss. 1992). Carver s misdemeanor convictions for default in payment of restitution, driving with a suspended license, and disregard of traffic device are not felonies and do not involve dishonesty or false statement. Therefore, Edwards testimony about Carver s misdemeanor convictions was inadmissible impeachment evidence under Rule 609. Further, because the State elicited Edwards 20

27 testimony during the State s case-in-chief before Carver took the stand, Edwards testimony constituted improper pre-impeachment evidence which compromised Carver s Fifth Amendment right to testify or not testify. See Robinson, 35 So. 3d at ( 14, 17). Additionally, Edwards testimony concerning the details of Carver s sale of cocaine convictions that Carver received a fourteen-year sentence and actually served nine years was inadmissible. Prior cases hold that although the fact of a prior conviction is admissible, the details underlying the conviction are inadmissible. See, e.g., Quimby, 604 So. 2d at 746; Gallion v. State, 469 So. 2d 1247, 1249 (Miss. 1985); Acevedo v. State, 467 So. 2d 220, 226 (Miss. 1985). Finally, evidence of Carver s prior auto burglary charge, the details underlying his prior sale of cocaine convictions and his prior misdemeanor convictions was a more prejudicial than probative and inadmissible under Mississippi Rule of Evidence Rule 403 is the ultimate filter through which all otherwise admissible evidence must pass. Flowers, 773 So. 2d at 318 ( 25) (quoting Bounds v. State, 688 So. 2d 1362, 1370 (Miss. 1997)). To allow a party to attempt to prove that a person acted in accordance with a certain character trait is to prejudice the person, to render him in the eyes of jurors liable, not because of what he did or did not do in the instant case, but because of what he has done or failed to do in the past. Mitchell, 110 So. 3d at 734 ( 12) (quoting M.R.E. 404 cmt.). Carver acknowledges that trial counsel raised no objection to the evidence complained of under this issue and that this Court ordinarily will not put the trial court in error for matters that were not properly presented to the trial court for resolution. Anderson v. State, 724 So. 2d 475, Rule 403 provides that Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. M.R.E