BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT

Transcription

1 E-Filed Document Feb :53: KA COA Pages: 29 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL LEROY KNIGHT APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: ALICIA AINSWORTH SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. THE TRIAL COURT DID NOT ERR IN FAILING TO SUPPRESS KNIGHT S STATEMENT TO POLICE II. III. IV. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT THE TRIAL COURT DID NOT ERR IN ALLOWING THE STATE TO PRESENT EVIDENCE OF KNIGHT S WIFE S PRESCRIPTION BOTTLES AND THE NUMBER OF PILLS INSIDE KNIGHT S FIRST SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT COMMITTED ERROR IN IMPROPERLY SENTENCING KNIGHT AS A HABITUAL OFFENDER V. KNIGHT S SECOND SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT DEPRIVED KNIGHT OF HIS RIGHT TO CONFRONTATION, RIGHT TO A FAIR TRIAL AND HIS DUE PROCESS RIGHTS FOR NOT ALLOWING KNIGHT TO LEARN THE IDENTITY OF THE CONFIDENTIAL INFORMANT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)...20 State Cases Baldwin v. State, 757 So.2d 227 (Miss. 2000)....9 Barfield v. State, 22 So.3d 1175 (Miss. 2009) Blakeney v. State, 29 So.3d 46 (Miss. Ct. App. 2009) Blissett v. State, 754 So.2d 1242 (Miss. 2000) Boches v. State, 506 So.2d 254 (Miss. 1987) Carely v. State, 739 So.2d 1046 (Miss. Ct. App. 1999) Conner v. State, 138 So.3d 143 (Miss. 2014) Cooper v. State, 145 So.3d 1219 (Miss. Ct. App. 2013)....10, 11, 14 Coyne v. State, 484 So.2d 1018 (Miss. 1986) Cummings v. State, 465 So.2d 993 (Miss. 1985) Dixon v. State, 812 So.2d 225 (Miss. Ct. App. 2001) Esparaza v. State, 595 So.2d 418 (Miss. 1992) Ford v. State, 139 So.3d 730 (Miss. Ct. App. 2013) Frazier v. State, 907 So.2d 985 (Miss. Ct. App. 2005) Grayer v. State, 120 So.3d 964 (Miss. 2013) Hannah v. State, 111 So.3d 1196 (Miss. 2013) Heidelberg v. State, 45 So.3d 730 (Miss. Ct. App. 2010) Herring v. State, 691 So.2d 948 (Miss. 1997)....5 Holland v. State, 656 So.2d 1192 (Miss. 1995)....14, 15 Jackson v. State, 580 So.2d 1217 (Miss. 1991)....11, 12, 13 Johnson v. State, 101 So.3d 717 (Miss.Ct.App. 2012) Jones v. State, 904 So.2d 149 (Miss. 2005) Keys v. State, 478 So.2d 266 (Miss. 1985) McCray v. State, 44 So.3d 1046 (Miss. Ct. App. 2008) McFee v. State, 511 So.2d 130 (Miss. 1987) Morris v. State, 798 So.2d 603 (Miss. Ct. App. 2001)....5 Parks v. State, 884 So.2d 738 (Miss. 2004) Seely v. State, 451 So.2d 213 (Miss. 1984) Stephens v. State, 911 So.2d 424 (Miss. 2005) Stringer v. State, 557 So.2d 796 (Miss. 1990) Stringfield v. State, 588 So.2d 438 (Miss. 1991) Taylor v. State, 122 So.3d 707 (Miss. 2013) Taylor v. State, 656 So. 2d 104 (Miss. 1995)....11, 12 Taylor v. State, 789 So.2d 787 (Miss. 2001) State Statutes Miss. Code Ann (a)(1)....3 Miss. Code Ann , 3, 21 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL LEROY KNIGHT APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE ISSUES I. THE TRIAL COURT DID NOT ERR IN FAILING TO SUPPRESS KNIGHT S STATEMENT TO POLICE. II. III. IV. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT. THE TRIAL COURT DID NOT ERR IN ALLOWING THE STATE TO PRESENT EVIDENCE OF KNIGHT S WIFE S PRESCRIPTION BOTTLES AND THE NUMBER OF PILLS INSIDE. KNIGHT S FIRST SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT COMMITTED ERROR IN IMPROPERLY SENTENCING KNIGHT AS A HABITUAL OFFENDER. V. KNIGHT S SECOND SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT DEPRIVED KNIGHT OF HIS RIGHT TO CONFRONTATION, RIGHT TO A FAIR TRIAL AND HIS DUE PROCESS RIGHTS FOR NOT ALLOWING KNIGHT TO LEARN THE IDENTITY OF THE CONFIDENTIAL INFORMANT. STATEMENT OF THE CASE This is an appeal by Michael Leroy Knight of a conviction of two counts of possession of a controlled substance with intent to distribute in the Circuit Court of Harrison County, Mississippi, 1

5 with the Honorable Lisa P. Dodson presiding. The Court sentenced Knight as a habitual offender pursuant to Mississippi Code Annotated , to serve life in the custody of the Mississippi Department of Corrections without the possibility of parole. STATEMENT OF THE FACTS On June 21, 2012, based upon information received from a confidential informant regarding drug activity, Gulfport Police Department (G.P.D.) executed a search warrant on a hotel room occupied by the appellant, Michael Knight and his wife, Donna Cash. (Tr. 489). Twelve officers assisted with the execution of the warrant, including Detective Daniel Castillo, the lead detective on the case, and Agent Brian Sullivan, a Mississippi Bureau of Narcotics agent also assigned to a federal D.E.A. task force. (Tr. 417). The officers secured Knight and Cash outside of the room while they conducted the search and collected evidence. (Tr. 418). During their search of the room, officers seized four prescription pill bottles (an Oxycodone and Methadone prescribed to both Knight and Cash), with a large number of pills missing from each bottle, and $1, in cash from Knight s person. (Tr. 493, 498). Knight s prescription bottles indicated he was prescribed the Oxycodone and Methadone the same day of the execution of the search warrant and Cash s bottles indicated she received her prescriptions for Oxycodone and Methadone the day prior. (Tr. 386). In total, there were 292 Oxycodones missing and 33 Methadones missing in that short period of time. (Tr. 387). After the search of the hotel room, Detective Castillo introduced himself to Knight as the lead detective in the case and Knight began to make statements regarding other issues or matters that he wanted to assist with, so Detective Castillo Mirandized him and informed him that it was not the time to talk. (Tr ). Agent Sullivan and his partner transported Knight to the police station and G.P.D. requested the two agents to sit in on Knight s interview, which occurred approximately twenty minutes after they arrived at the station. (Tr. 450, 460). After Knight was fully informed of 2

6 his rights, he signed G.P.D. s Advice of Rights form and Waiver of Rights form. (State s Exhibit 2). During his interview, Knight confessed to selling and abusing the prescription drugs and answered officers questions regarding other aspects of the local drug trade. (Exhibit 11). Knight was charged with two counts of possession of a controlled substance (Oxycodone and Methadone) with the intent to transfer or distribute, pursuant to Mississippi Code Annotated (a)(1). (C.P ). During pre-trial hearings, Knight argued his confession should be suppressed because he was intoxicated and because, based on his prior working relationship with Agent Sullivan, he was under the impression G.P.D. would let him work off his charges if he gave them information. (Tr. 152, ). Detective Castillo, Agent Sullivan and Detective Adam Gibbons all testified at the suppression hearing that no one made any promises to Knight regarding working off his charges and that he did not appear to be intoxicated at the time of the interview. (Tr , , ). The trial court ruled his recorded confession was admissible up to the point where Detective Castillo makes a comment to the effect of that s your ticket out while Knight was giving information. (Tr. 299). At trial, the State introduced as evidence all four pill bottles and the pills that were found in each bottle (and the large number missing from the bottles) in order to prove Knight had the intent to distribute the drugs. (Tr , 531). The State also called Agent Sullivan to testify as an expert in the field of narcotics and, specifically, the prescription drug trade. (Tr. 443). He testified about the practice of doctor shopping in relation to the prescription drug trade and that people will often work together to gain multiple prescriptions and commonly travel out of state to different doctors. (Tr. 443, 462). He testified that, in his expert opinion, based on the information Knight provided in his confession, in addition to the evidence seized from the hotel room, Knight did not possess the 3

7 drugs for his personal use only. (Tr. 468). The jury found Knight guilty on both counts and he was sentenced as a habitual offender pursuant to Mississippi Code Annotated section to serve life without the possibility of parole. SUMMARY OF THE ARGUMENT Knight s conviction and sentence should be affirmed. Knight freely, knowingly and voluntarily confessed to selling his prescription drugs and Detective Castillo, Agent Sullivan and Detective Gibbons all testified that Knight did not appear to be intoxicated during his interview and that no one made any promises of leniency to him in return for his statement. Although Agent Sullivan had worked with Knight in the past as a confidential informant, he made no such offers in return for Knight s cooperation in this particular case and Knight s assumption to the contrary was misplaced. The trial court did not commit error by allowing Knight s confession into evidence, as the correct legal standard was applied and the court s findings were not against the weight of the evidence. Also, there was sufficient evidence to support the verdict and support the jury s finding of the intent element beyond a reasonable doubt. In addition to Knight s own confession to selling prescription drugs, the State presented evidence of the prescription pill bottles and pills seized from Knight s hotel room. The prescriptions had been obtained out of state within a day or two of the execution of the warrant and there was already an unusually large quantity of pills missing from the bottles. The State presented expert testimony that such evidence indicates that Knight was distributing the prescription drugs and not just in possession of them for personal consumption. Lastly, the trial court did not abuse its discretion in allowing the State to present evidence of Knight s wife s prescription pill bottles and pills because the evidence was relevant to prove 4

8 Knight s intent to distribute the pills. The State s expert testified that people involved in the prescription drug trade often work in concert to obtain multiple prescriptions and the trial court did not err in ruling the evidence was relevant to prove Knight and his wife were acting in concert to sell the pills and the evidence was not unduly prejudicial to Knight s case. ARGUMENT I. THE TRIAL COURT DID NOT ERR IN FAILING TO SUPPRESS KNIGHT S STATEMENT TO POLICE. Knight s first assignment of error on appeal is that the trial court erred in failing to suppress Knight s statement to police. Knight argues that his statement was not freely and voluntarily given because he was intoxicated and because he was under the impression that if he cooperated with the investigation, he could work off the charges. When determining whether a statement or confession is voluntary, the trial court must ask whether, taking into consideration the totality of the circumstances, the statement is the product of the accused s free and rational choice. Morris v. State, 798 So.2d 603, 606 (Miss. Ct. App. 2001) (quoting Herring v. State, 691 So.2d 948,956 (Miss. 1997)). The State bears the burden of proving the voluntariness of the statement beyond a reasonable doubt. Id. The State establishes a prima facie case of voluntariness when the officer, or other person having knowledge of the facts, testifies that the confession was voluntarily made without any threats, coercion, or offer of reward. Id. Furthermore, the defendant s intoxication does not automatically render a confession involuntary, but admissibility of the confession hinges on the degree of intoxication. Id. Prior to trial, Knight moved to suppress his confession to police and the trial court held a hearing on his motion. (Tr. 152). Knight testified at the hearing that Agent Brian Sullivan initiated a conversation with him outside of the hotel room and told Knight they could work something out 5

9 on this case. (Tr. 276, 281). He was then transported to the police station by Agent Sullivan and Detective Adam Gibbons and Knight testified that during the ride, Agent Sullivan told him they don t have nothing on this charge and when we get to the station, I ll talk to you. (Tr. 276). Once Knight arrived at the station, he was booked and placed into a holding cell until his interview. (Tr. 277). Detective Daniel Castillo, the lead detective on the case, conducted Knight s interview with Agent Sullivan and Detective Gibbons present. (Tr. 278). Knight testified that he shot up five Oxycodones with a syringe right before officers knocked down his hotel room door and that he was loaded during his interview. (Tr ). He admitted twice during the suppression hearing that he did not have any discussions with the officers prior to the start of his recorded interview, but he testified, Detective Castillo told me, he said, you know, I will make sure you have a low bond, you just work with us, all that. And I had worked with Sullivan, so I knew, you know that he could help. (Tr , 282). However, when asked on cross-examination when Detective Castillo told him he would get him a low bond, Knight testified it occurred at the station, prior to when the recording started. (Tr. 284). When the prosecutor asked him about his prior testimony that there were no discussions prior to the recording, Knight testified, [t]here were discussions way before then. I was talking to Sullivan in the car. And I was put in a holding cell for an hour before they talked to me. So, you know. I also had my wife and my dogs. (Tr. 284). The trial judge then questioned Knight about who told him they would make the charges go away and when they made that statement. (Tr. 288). Knight testified Sullivan made the statement on the way to the station. (Tr. 288). The trial judge then asked, So he didn t say he would make it go away, that was your conclusion from what he said? and Knight responded, Yes, ma am. (Tr. 288). Detective Castillo testified that he introduced himself to Knight after officers entered the 6

10 hotel room and Knight immediately attempted to make statements regarding trying to cooperate with law enforcement. (Tr ). Detective Castillo testified that he stopped Knight right away, Mirandized him and informed him that this wasn t the time nor the place to discuss that and that they could talk later at the police station. (Tr. 241). He testified he made no promises to Knight regarding cooperating with law enforcement and he had no further contact with Knight until later when they were at the station. (Tr. 241). Once at the station, Detective Castillo testified that he escorted Knight from his holding cell to the interview room and that Knight exhibited no signs of impairment or intoxication. (Tr ). Knight was presented with an Advice of Rights form and Detective Castillo confirmed Knight appeared to fully understand his rights and that he signed the document waiving his rights and proceeded to give his recorded confession to police. (Tr ; State s Exhibit 2). Detective Castillo stated that at no point during his contact with Knight did he make promises to him in return for his statement. (Tr. 248). Agent Brian Sullivan acknowledged during the suppression hearing that Knight had worked with him as a confidential informant several times in the past. (Tr. 222). He testified that he remembered communicating with Knight outside of the hotel room after the search warrant was executed, but nothing of any significance was said. (Tr. 216). He did not recall Knight making any statements about cooperating at that time, and if he had, Agent Sullivan said he would have instructed him to speak to the case agent instead. (Tr. 216). He stated that he and Knight did not have any conversations of any significance during the ride to the station and testified that he did not make any promises to Knight regarding cooperating at any point during their contact, nor did he ever hear anyone else offer anything to Knight in return for a confession or cooperation with officers. (Tr ). Agent Sullivan also said Knight did not appear to be impaired or intoxicated ( No, sir. I mean, not out of the ordinary. ) and reiterated that, to his knowledge, at no point was anything offered by 7

11 anyone to Knight in return for his statement that night. (Tr ). Detective Adam Gibbons also testified at the suppression hearing. His role in Knight s case was to provide support to the officers executing the search warrant on the hotel room because they needed extra manpower. (Tr. 183). He stated he and Agent Sullivan transported Knight to the station and they also sat in on his interview the night of his arrest. (Tr ). He testified that he had no discussions with Knight regarding his case and that he did not overhear anyone make any type of promises to Knight in return for his statement or cooperation. (Tr ). Knight argues on appeal that because he had worked for Agent Sullivan as a confidential informant several times in the past, he was rightfully under the impression that the officers would work with him on these charges in return for his cooperation. The trial court disagreed. Agent Sullivan acknowledged he had worked with Knight in the past; however, he and the other two officers testified under oath that no one made any promises to Knight in return for his statement during the current investigation. Additionally, Detective Castillo introduced himself to Knight as the lead detective, so Knight was aware that Agent Sullivan was not even the lead detective in the current case and it would be unreasonable for him to assume that he would have a working relationship with Detective Castillo just because he had a working relationship in the past with Agent Sullivan. The record does not reflect any evidence of the officers intentionally or unintentionally misleading Knight to believe they may work with him on these specific charges. Nothing in Knight s recorded confession leaves the impression he was making a statement because he had been promised something by the officers. Any understanding on Knight s part that he would receive any type of leniency in return for his statement was the result of his own unwarranted assumptions. The trial court correctly pointed out in its ruling on the motion that for the court to find that Knight had a 8

12 working relationship with officers on this particular charge just because of his past relationship with one of the officers is not something that I think the law supports or that common sense supports. (Tr. 300). Knight also argues that his statement was involuntary because of his intoxication. However, if Knight was in fact intoxicated at all, his degree of intoxication was not at such a level to render his confession inadmissible. In its ruling, the court stated that Knight did not offer any evidence to show that he did not understand his rights as a result of intoxication and in fact, he acknowledged during his recorded statement that he fully understood his rights and still signed the Waiver of Rights form. After hearing the recording, the court noted that he gave reasonable answers to the questions asked. (Tr. 301). Although Knight testified he shot up five Oxycodones right before the officers executed the search warrant, the officers all testified that he did not appear intoxicated at the time they interviewed him. In Taylor v. State, the Mississippi Supreme Court discussed the well-known standard of review regarding the trial court s denial of a motion to suppress a statement by a defendant to police. Taylor v. State, 789 So.2d 787, 792 (Miss. 2001). Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence. Id. (quoting Baldwin v. State, 757 So.2d 227 (Miss. 2000)). Great deference is afforded such findings because of the judge s unique opportunity to observe the witnesses and assess their credibility. Blakeney v. State, 29 So.3d 46 (Miss. Ct. App. 2009) (quoting Carely v. State, 739 So.2d 1046, 1050 (Miss. Ct. App. 1999)). Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal. Id. At 50. Knight failed to meet that heavy burden as the record 9

13 indicates that the trial court applied the correct legal standards and its findings were not manifest error, nor were they contrary to the overwhelming weight of evidence. At the conclusion of the testimony, the trial court made a lengthy finding of facts based on the testimony heard. The court correctly acknowledged the standard to be applied to the motion to suppress was whether the statement was freely, voluntarily and knowingly made, which would require the court to determine whether there were any threats, coercion, promises, guarantees, et cetera, made. (Tr. 297). The trial court weighed the credibility of the witnesses and found the officers testimony more credible than Knight s. After hearing all of the evidence, the court ruled that Knight s confession was admissible up to the point in the recording where Detective Castillo makes the comment to Knight, That s your ticket out, because the statement may have had the effect of an inducement for Knight to continue giving information. (Tr. 298). Everything Knight said prior to Detective Castillo s comment was said freely and voluntarily. The record indicates the trial court applied the correct legal standard in its ruling and its ruling was in conformity with the overwhelming weight of the evidence. Therefore, trial court did not commit error by not suppressing Knight s recorded confession at trial. II. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT. Knight s second assignment of error on appeal is that the trial court erred in denying Knight s motion for a directed verdict and his motion for judgment notwithstanding the verdict. In addressing challenges to the legal sufficiency of the evidence, the standards of review for a directed verdict and judgment notwithstanding the verdict are identical. Cooper v. State, 145 So.3d 1219, 1227 (Miss. Ct. App. 2013) (quoting Barfield v. State, 22 So.3d 1175, 1185 (Miss. 2009)). The critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed... 10

14 Id. at 1228 (quoting Jones v. State, 904 So.2d 149, 153 (Miss. 2005)). The court must consider all of the evidence in the light most favorable to the State and [give] the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Parks v. State, 884 So.2d 738, 743 (Miss. 2004). If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. Taylor v. State, 656 So. 2d 104, 107 (Miss. 1995) (quoting McFee v. State, 511 So.2d 130, (Miss. 1987)). There was no issue at trial as to whether Knight was in possession of his Oxycodone and Methadone - he had recently obtained and filled prescriptions for both drugs. The main issue was whether the State could prove beyond a reasonable doubt that Knight had the requisite intent to sell or distribute the drugs. After the presentation of the evidence at trial, the jury deliberated and found that the State met its burden and that Knight was guilty on both counts. (C.R. 424) Knight now asserts the evidence presented was insufficient to support the jury s findings beyond a reasonable doubt, specifically in regards to the element of intent. (Appellant s Brief p. 10). While the element of intent to sell or distribute should not be based solely upon surmise or suspicion[,]... criminal intent may, and ordinarily can only be shown by surrounding circumstances. Taylor, 656 So.2d at 108 (quoting Stringfield v. State, 588 So.2d 438, 441 (Miss. 1991)). The quantity of drugs possessed in itself can be sufficient to infer intent to sell or distribute, but the Court may also consider both the quantity and the nature of the controlled substances and any other incriminating evidence indicating some involvement in the drug trade. Jackson v. State, 580 So.2d 11

15 1217, 1219 (Miss. 1991) (citing Coyne v. State, 484 So.2d 1018, 1021 (Miss. 1986) and Stringer v. State, 557 So.2d 796, 797 (Miss. 1990)). Indeed, a jury may reasonably conclude that a defendant intended to unlawfully distribute a controlled substance, if the quantity or nature of the seized substance evidences an intent to distribute - as opposed to an intent to merely possess for personal use. Taylor at 108 (citing Boches v. State, 506 So.2d 254, 260 (Miss. 1987); Coyne v. State, 484 So.2d 1018, 1021 (Miss. 1986); and Keys v. State, 478 So.2d 266 (Miss. 1985)). The record reveals there was sufficient evidence to support the jury s verdict against Knight. The State presented evidence that upon executing the search warrant of Knight s hotel room, officers seized four total prescription bottles with pills inside: an Oxycodone and a Methadone that had been prescribed to Knight earlier that same day, and an Oxycodone and a Methadone prescribed in the name of his wife, Donna Cash, the day prior to the execution of the warrant. (Tr. 386, 498). Knight and his wife were both prescribed to 180 units of Oxycodone each and only 68 out of the total 360 pills were recovered by officers. (Tr. 387). Knight was prescribed to 240 units of Methadone and Cash was prescribed to 90 units. Out of the total 330 Methadone pills prescribed, officers only found approximately 297 pills. (Tr. 387, State s Exhibit 1). The evidence showed Knight and his wife were missing a total of 292 Oxycodones and 33 Methadones in only one or two days at most since obtaining their prescriptions for the drugs. It would be reasonable for jurors to conclude from the evidence of such a large quantity of prescription pills missing in such a short time frame that Knight distributed some, or all, of those pills. In Jackson v. State, the Court found the evidence was insufficient for a jury to conclude beyond a reasonable doubt that Jackson intended to distribute the 4.1 grams of marijuana in his possession, as opposed to him having just purchased it. Jackson v. State, 580 So.2d 1217, 1220 (Miss. 1991). The marijuana in Jackson s possession had been divided into six nickel bags and the 12

16 arresting officer testified at Jackson s trial that, in his experience, a user normally only purchases one or two nickel bags. Id. The Court noted that the evidence gives rise to two reasonable, but completely opposite inferences, namely: Jackson was either completing a purchase or attempting to make a sale. Id. However, Jackson is distinguishable from Knight s case in that the amount of marijuana Jackson possessed was still within the realm of possibility for personal consumption. It would be unreasonable for a jury to conclude that Knight and his wife had personally consumed 292 Oxycodones and 33 Methadone pills in less than 48 hours. The State also introduced the audio recording of Knight s own confession as evidence of Knight s intent. (Exhibit 11). In his confession, Knight reveals incriminating evidence of his involvement in the drug trade. He explains his process for obtaining prescription drugs in order to sell them. He states that he got his prescriptions for Oxycodone and Methadone from a doctor in Alabama, but he has gotten prescriptions from doctors in Louisiana and Florida in the past and will also run with other people to get prescriptions. When asked how many prescriptions he obtains at one time, he states that it depends on how many people are involved. He admits that he abuses the pills by shooting them, but that he also sells the pills to several people and that he has regular people to whom he sells. He tells officers that he sells pills a day and receives $25 dollars per 30 milligram pill of Oxycodone. He uses the money he receives from the drug sales to pay for his doctor visits every 30 days, which cost $250 per visit. Knight also answers questions regarding his knowledge of the general drug trade in the area, such as who sells the most pills in the area, who is the main drug dealer for other types of drugs and gave specifics about those particular people. The State called Agent Brian Sullivan to testify at trial as an expert in the field of narcotics and the distribution of narcotics. (Tr. 443). In reference to Knight s statement, he testified that selling Oxycodone at $25 dollars per 30 milligram pill is consistent with what he has seen in his experience. 13

17 (Tr. 461). Agent Sullivan also testified about doctor shopping in relation to the prescription drug trade and then testified that Knight s statement regarding going to other states to obtain prescriptions, and going with multiple people, was consistent with what he described as doctor shopping. (Tr. 443, ). He stated that in Knight s current case there were signs that Knight and his wife were working together to doctor shop, such as the fact that they traveled to Alabama to obtain multiple prescriptions for a large quantity of pills, but yet when the officers searched their hotel room, there were a number of pills missing, which was indicative of drug distribution. (Tr ). Agent Sullivan testified that if someone was missing 120 or 170 pills that were prescribed to them the day before, it would be indicative of drug distribution. (Tr. 468). He concluded that based on the factors mentioned above, it was his expert opinion that in this specific case, Knight was not just using his prescription drugs for personal use only. (Tr. 468). In Cooper v. State, this Court noted that [o]fficer testimony that the quantity of drugs found in the defendant s possession was inconsistent with personal consumption is sufficient to establish an intent to distribute the drugs. Cooper v. State, 145 So.3d 1219, 1229 (Miss. Ct. App. 2013) (citing Blissett v. State, 754 So.2d 1242, (Miss. 2000)). Although the State s argument against Knight focuses on the large number of pills missing from his possession and not the quantity in his possession, Agent Sullivan s expert testimony that the evidence indicates Knight s possession was inconsistent with personal consumption, according to Cooper, is sufficient to establish Knight s intent to distribute the drugs. The Court in Holland v. State held that while evidence of prior involvement in the drug trade is admissible to prove intent to distribute[,]... [p]ast sales alone is insufficient to prove an intent to distribute. Holland v. State, 656 So.2d 1192, 1196 (Miss. 1995). Holland was apprehended with a single crack rock, in an area associated with drug sales, he was carrying $

18 and an electronic pager, and he provided a written statement that he had been selling drugs in the past three weeks. The Court noted that the amount of cash on Holland was not significant and the single crack rock in his possession was commensurate with personal use. Id. at 1195, The Court further held that his written statement confessing to past drug sales was alone insufficient to establish intent, and therefore, the evidence against him, as a whole, was insufficient to support his conviction. However, in addition to Knight s confession, the State presented substantial circumstantial evidence to establish Knight s intent to distribute the prescription drugs. First, the large quantity of pills missing is significant because the prescriptions for them had only been obtained within a day of the execution of the search warrant. It is a very long stretch for jurors to believe 292 Oxycodones had been personally consumed by Knight and his wife within such a short time frame. Furthermore, the jurors had the opportunity to listen to the recording of Knight s interview, which took place 20 minutes after arriving at the station, and determine whether Knight sounded like he had consumed a large amount of Oxycodone recently or not. Next, Agent Sullivan s testimony indicated that Knight was not just personally consuming the drugs, but that he was selling or distributing them. His testimony connected his experience in distribution of narcotics to the specific facts and evidence in Knight s case. The jury s duty was to determine Agent Sullivan s credibility and it would not be unreasonable for jurors to conclude his testimony was credible and that Knight intended to distribute his prescription drugs, as opposed to him having consumed them. Last, Knight s own confession to officers regarding his process for selling prescription drugs and his knowledge and involvement in the drug trade is evidence of the element of intent to distribute. While Knight does talk about past drug sales in his statement, he also makes reference to going to Alabama to get prescriptions and other comments regarding selling 15

19 drugs in a present tense. Knight s confession, in addition to the circumstantial evidence presented by the State, including the large number of missing pills in a short period of time and Agent Sullivan s expert testimony, is ample evidence to support the verdict against Knight. III. THE TRIAL COURT DID NOT ERR IN ALLOWING THE STATE TO PRESENT EVIDENCE OF KNIGHT S WIFE S PRESCRIPTION BOTTLES AND THE NUMBER OF PILLS INSIDE. In Knight s last assignment of error, he alleges that the trial court erred in allowing the State to present evidence of Knight s wife s prescription bottles and the number of pills inside. He claims the prejudicial effect of admitting the evidence of his wife s drugs and the number of pills missing from her prescription bottles outweighed its probative value and the trial court should have excluded said evidence. When reviewing a trial court s admission of evidence, the standard is abuse of discretion. Johnson v. State, 101 So.3d 717, 720 (Miss. Ct. App. 2012) (citing McCray v. State, 44 So.3d 1046, 1048 (Miss. Ct. App. 2008)). A circuit judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, an appellate court will not reverse this ruling. Id. (quoting McCray at 1048). Prior to the start of trial, the State sought to introduce Donna Cash s pill bottles and the pills that were seized from Knight s hotel room. (Tr. 386). The State anticipated its expert, Agent Brian Sullivan, would testify about doctor shopping and the prescription drug trade, as well as how the quantity of drugs prescribed to Knight and his wife and the quantity of drugs missing from the bottles were indicative of Knight s intent to sell the drugs. (Tr.387). The State argued the evidence of Cash s bottles and their contents were relevant to show Knight and his wife acted in concert to obtain the prescription drugs for Knight to sell. (Tr. 388, 395). The trial court heard Knight s arguments in 16

20 support of his objection to the admission of the evidence and determined its relevance was unclear at that point in the trial and therefore inadmissible, with the caveat that it may be admitted later in the trial if the proper predicate was laid by the State. (Tr. 404). After Agent Sullivan s testimony regarding doctor shopping in general, the State again moved to admit Cash s pills and pill bottles and the trial court granted the motion with regard to the bottles, but ruled the pills and the number of pills were still inadmissible. (Tr , 457). Agent Sullivan then continued to testify about doctor shopping in Knight s case specifically and stated that the fact that Knight and his wife went out of state to obtain multiple prescriptions and that there was such a large quantity of pills already missing indicated Knight was doctor shopping and not in possession of the prescription drugs for personal consumption only. (Tr. 461, 467). Finally, at the conclusion of Agent Sullivan s testimony, the State requested the trial court to reconsider its motion to admit Cash s pills and pill bottles and the trial court determined Agent Sullivan had laid a sufficient foundation to establish Knight and his wife were working together to obtain prescription drugs to sell them and ruled the evidence was admissible. (Tr ). Each time the State sought to introduce Cash s pills and pill bottles, the trial court carefully considered the facts and evidence that were currently on record before making a determination. Only after the State was able to elicit enough testimony to directly establish its relevance to Knight s case did the trial court deem it admissible. The trial court specifically noted the information was not unduly prejudicial to Knight because the jury would be able to weigh that evidence just as it would be able to weigh evidence of Knight s own pills and pill bottles. (Tr. 483). The State s argument that Knight was doctor shopping to obtain a large quantity of drugs with the intent to sell them was bolstered by the admission of Cash s pills into evidence because it shows there was a large total number of drugs obtained, that they were obtained recently, and that 17

21 an unusually large number of those drugs were already missing in such a short time frame. Additionally, to the extent Knight argues that he was not in possession of Cash s pills, the State submits that he was indeed in actual joint possession of those pills. While the evidence against Knight would have been sufficient for the jury to find him guilty if Cash s pills and bottles were ruled inadmissible, the probative value of the additional evidence enables the jury to see the full picture of Knight s involvement in the prescription drug trade. The probative value of Cash s pills outweighed any prejudicial effect the evidence may have had against Knight and the trial court did not abuse its discretion in admitting them into evidence at trial. IV. KNIGHT S FIRST SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT COMMITTED ERROR IN IMPROPERLY SENTENCING KNIGHT AS A HABITUAL OFFENDER. In Knight s pro se Supplemental Brief, he asserts as his first assignment of error that the trial court committed error by improperly sentencing Knight as a habitual offender. He argues that the State did not prove or attempt to prove his habitual offender status because the record is devoid of the [prosecutor] arguing or demonstrating a prima facie case for such[.] (Supplemental Brief p. 5). He also points out that only Judge Lisa Dodson testified to the accuracy of the allegations of habitual status and that no one, specifically the Custodian of Records, from Mississippi Department of Corrections testified to the authenticity and/or accuracy of the pen packs proffered by the State as evidence of Knight s habitual offender status. Knight did not object to the admission of the pen-packs as evidence during his sentencing. In fact, Knight s attorney expressly stated when asked by the court whether he had seen the penpacks, As much as I would like to be able to object to the entry of that document as well as the penpack and all, Your Honor, I have unfortunately no legitimate basis to make an objection. (Tr. 619). 18

22 When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so for the first time on appeal. Grayer v. State, 120 So.3d 964, 968 (Miss. 2013) (citing Cummings v. State, 465 So.2d 993, 995 (Miss. 1985)). Therefore, Knight s argument is procedurally barred because he never raised it before the trial court. Because Knight s argument is procedurally barred for his failure to contemporaneously object at trial, he must rely on this Court to employ the plain-error doctrine. The appellate court may apply the doctrine of plain error when a defendant s substantive or fundamental rights are affected. Conner v. State, 138 So.3d 143, 150 (Miss. 2014) (citing Grayer at 969). A defendant has a fundamental right to be free from an illegal sentence. Id. To succeed under the plain-error doctrine, the defendant must show that an error occurred at the trial level that resulted in a manifest miscarriage of justice. Heidelberg v. State, 45 So.3d 730, 732 (Miss. Ct. App. 2010) (citing Stephens v. State, 911 So.2d 424, 432 (Miss. 2005)). The trial court must conduct a separate hearing for the sentencing portion of the trial and the trial judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof. Id. (quoting Seely v. State, 451 So.2d 213, 215 (Miss. 1984)). To sentence a defendant as a habitual offender, all that is required is that the accused be properly indicted as a habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor s proof. Grayer at 969. The Mississippi Supreme Court has held that pen-pack records may constitute competent evidence Conner, 138 So.3d at 151 (citing Taylor v. State, 122 So.3d 707, 709, 711 (Miss. 2013); see also Dixon v. State, 812 So.2d 225, 231 (Miss. Ct. App. 2001) (holding [a] certified copy of the pen packs would have been sufficient as competent evidence of Dixon s prior convictions )). 19

23 First, the State submits that Knight s allegations of an improper sentence (or of insufficient evidence to support the finding of habitual offender status) are merely pretense and offered in order to circumvent the procedural bar for failing to contemporaneously object during his sentencing. Although it is difficult to parse out Knight s exact basis for his argument, he reiterates several times in his brief that the Custodian of Records at MDOC should have testified to the accuracy of the pen packs introduced into evidence against him and that it is unclear exactly which documents were used against him and whether or not they were certified. (Supplemental Brief p. 6, 7, 8). The State introduced the pen packs during the sentencing portion of Knight s trial and they are in the record on appeal. (State s Exhibits 12-15). The record includes two pen packs from the Mississippi Department of Corrections and two pen packs from the Florida Department of corrections. Each pen pack includes a certification of the custodian of records for the corresponding agency stating that the attached documents are true and correct copies of the original records. Knight s argument that the documents of his prior convictions were not certified, or that is unclear whether they are certified, has no merit. Additionally, there is no requirement that the Custodian of Records, or person in a similar position, testify regarding the pen packs, so as not to violate Knight s right to confront the witnesses against him. In Ford v. State, this Court held that pen-packs are not testimonial statements, which would trigger an analysis pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Ford v. State, 139 So.3d 730, 737 (Miss. Ct. App. 2013) (citing Frazier v. State, 907 So.2d 985, 997 (Miss. Ct. App. 2005)). [I]f anything, the certificate on the pen[-]packs indicates that the custodian of records swore that the documents were true and correct copies, not that [the defendant] actually committed any act, and the custodian would not have been qualified to testify to anything else. Id. The certificate of the custodian for each of the pen packs was sufficient 20

24 to admit the documents into evidence. Therefore, Knight s basis for insisting the trial court committed error for failing to require the State to produce the Custodian of Records at his sentencing is also without merit. Without waiving any procedural bar, the State would also assert there is no plain error, as the trial court properly sentenced Knight as a habitual offender and there was no error that resulted in a manifest miscarriage of injustice. First, Knight was properly indicted. The indictment charging Knight specifically states he is charged as a habitual offender in accordance with Miss. Code Ann and lists the six prior felonies for which the State sought to use to prove his habitual offender status. (C.P ). Next, the State proved his prior offenses by competent evidence during his sentencing by introducing the certified pen packs from both Mississippi and Florida Departments of Corrections, which state the offenses for which Knight was imprisoned and the time served on each conviction. The trial judge, sitting as the fact finder, then reviewed the pen packs on the record before adjudicating Knight as a habitual offender under and sentencing him accordingly. (Tr , C.P. 470). Last, Knight had a reasonable opportunity to challenge this proof by objecting at any point during pre-trial motions regarding the sufficiency of the indictment, as well as during his sentencing and post-trial motions regarding the sufficiency of the pen packs offered as evidence. For the foregoing reasons, Knight was properly tried and convicted as a habitual offender and there is no manifest injustice in the trial court s imposition of the statutory sentencing requirement of life in prison without the possibility of parole. V. KNIGHT S SECOND SUPPLEMENTAL ISSUE: WHETHER THE TRIAL COURT DEPRIVED KNIGHT OF HIS RIGHT TO CONFRONTATION, RIGHT TO A FAIR TRIAL AND HIS DUE PROCESS RIGHTS FOR NOT ALLOWING KNIGHT TO LEARN THE IDENTITY OF THE CONFIDENTIAL INFORMANT. 21

25 Knight s second assignment of error in his pro se Supplemental Brief addresses his right to confrontation, his right to a fair trial and his due process rights all relating to the fact that he was not provided the name of the confidential informant in his case and was, therefore, not allowed to crossexamine him. Knight also asserts that the lead detective seeking the search warrant lied to the issuing judge about the fact that there was a confidential informant and obtained the warrant under false pretense. (Supplement Brief p. 10). At the outset, the State submits that Knight is procedurally barred from raising the argument(s) comprising his second issue on appeal because he failed to properly address it at the trial level. During a hearing on the State s motion to allow the officers to testify that they received information from a confidential informant (not the content of the information, just the fact that they received information), the Court held the officers would be permitted to so testify. (Tr. 179). Knight s counsel agreed with the State s position, but stated for the record that Knight would object to the officers testifying as to anything that the CI told them, or, you know, that they received information that there was [sic] drug issues going on in this room, you know, that s all basically saying what the CI told them. (Tr. 176). Knight s counsel pointed out after the Court s ruling that the State implied Knight already knew the identity of the informant because they alleged in his bond hearing that Knight had threatened the informant, but stated that he understood the trial court s ruling and that he agreed with it. (Tr ). The Court then clarified that if Knight knew the identity of the informant, he could subpoena him to testify, but Knight s counsel replied no ma am. (Tr. 181). The record reveals that not only did Knight not object to the non-disclosure of the identity of the informant, he indicated he knew the identity of the informant and was not willing to subpoena him for trial. Accordingly, he is procedurally barred from addressing the issue on appeal. 22

26 Also, Knight argued on appeal that the officer requesting the search warrant lied about the existence of the confidential informant. There is no factual basis support this argument and the officer s credibility was never in question during the proceedings below. Therefore, this unsupported assertion is procedurally barred on appeal as well. Without waiving any procedural bars, with regard to Knight s contention that his rights were violated by the trial court by not requiring the State to disclose the identity of the confidential informant and allowing him to cross-exam him, his argument has no merit. Although Knight claims he suffered several violations of his constitutional rights, case law is clear on the issue of disclosure of confidential informants identities. The trial court s determination of whether or not to require the disclosure of a confidential informant is reviewed on appeal for abuse of discretion. Hannah v. State, 111 So.3d 1196, 1199 (Miss. 2013). [D]isclosure of an informant s identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe the constitutional rights of the accused or unless the informant was or depicts himself/herself as an eyewitness to the event or events constituting the charge against the defendant. Id. (citing URCCC 9.04(B)(2)). In Esparaza v. State, the trial court did not err by overruling the defendant s motions to disclose the informant when the informant did not witness the offense charged and did not serve as a witness at trial; the informant merely provided information to officers that established probable cause to support a search warrant. Esparaza v. State, 595 So.2d 418 (Miss. 1992). Knight s case is similar to Esparaza in that the confidential informant merely provided the information to the officers that established their probable cause to support the search warrant and the informant did not testify as a witness at any point at trial. Additionally, the officers did not testify about the information that the informant provided, only the fact that an informant provided them 23