E-Filed Document Jul 17 2015 07:28:18 2014-KA-01783-COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ANDREW GRAHAM APPELLANT VS. NO. 2014-KA-1783 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104233 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
Table of Contents Table of Authorities............................................................ ii Statement of the Case............................................................ 1 Summary of the Argument........................................................ 1 Argument..................................................................... 2 I. The State presented sufficient evidence to support the jury s finding that Graham conspired to possess a controlled substance within a correctional facility.......................................... 2 II. Graham s indictment was not deficient.................................. 4 III. The State proved that Graham was a habitual offender...................... 5 Conclusion.................................................................... 9 Certificate of Service........................................................... 10 i
Table of Authorities State Cases Conner v. State, 138 So. 3d 143 (Miss. 2014)...................................... 7, 8 Davis v. State, 485 So. 2d 1055 (Miss. 1986)....................................... 4, 5 Ford v. State, 546 So. 2d 686 (Miss. 1989)......................................... 4, 6 Heidelberg v. State, 45 So. 3d 730 (Miss. Ct. App. 2010)............................. 8, 9 Minchew v. State, 967 So. 2d 1244 (Miss. Ct. App. 2007)............................... 8 Newell v. State, 754 So. 2d 1261 (Miss. 1999)........................................ 4 Poyner v. State, 962 So. 2d 68 (Miss. Ct. App. 2007)................................ 6, 9 Robertson v. State, 921 So. 2d 348 (Miss. Ct. App. 2005)............................... 6 Vince v. State, 844 So. 2d 510 (Miss. Ct. App. 2003)................................... 9 State Statutes Mississippi Code Annotated Section 47-5-198........................................ 3 Mississippi Code Annotated Section 97-1-1.......................................... 3 Mississippi Code Annotated Section 99-19-81...................................... 3, 7 ii
Statement of the Case The Grand Jury of Lincoln County indicted Andrew Graham and Terrance D. Hudson for one count of bringing a controlled substance (marijuana) into a correctional facility in violation of Mississippi Code Annotated Section 47-5-198, and for one count of conspiracy to possess a controlled substance in a correctional facility in violation of Mississippi Code Annotated Section 97-1-1 and 47-5-198. (Indictment, CP 5-6). After a trial by jury, Circuit Judge Michael M. Taylor, presiding, the jury could not reach a verdict on Count I of the indictment, but found Graham guilty of Count II. (Verdict, CP 84-85). The trial court sentenced Graham, as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81, to serve five years in the custody of the Mississippi Department of Corrections, and ordered him to pay a $2,000 find, and $419.50 in court costs. (CP 102). After denial of Graham s Motion for New Trial, this instant appeal was timely noticed. (CP 118). Relevant facts will be discussed, as needed, in the Argument section. Summary of the Argument The jury s verdict was supported by sufficient evidence. The case included both direct and circumstantial evidence of Graham s conspiracy with his co-indictee to unlawfully possess a controlled substance within a correctional facility. Graham s indictment was not defective. It alleged that he brought marijuana into a correctional facility, and that he conspired with another person to possess marijuana in a correctional facility. The State met its burden to prove that Graham was a habitual offender. 1
Argument I. The State presented sufficient evidence to support the jury s finding that Graham conspired to possess a controlled substance within a correctional facility. Graham argues that the State failed to present sufficient evidence to convict him of conspiracy. (Appellant s Brief p. 4). Standard of Review When this Court reviews a challenge to the sufficiency of the evidence, the evidence must be viewed and tested in a light most favorable to the State. Newell v. State, 754 So. 2d 1261, 1265 (Miss. 1999)(citations omitted). The credible evidence consistent with [Graham s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. A conspiracy is said to be a combination of persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully. Ford v. State, 546 So. 2d 686, 688 (Miss. 1989)(citations omitted). The Supreme Court has held that the existence of a conspiracy, and a defendant s membership in it, may be proved entirely by circumstantial evidence. Davis v. State, 485 So. 2d 1055, 1058 (Miss. 1986)(citations omitted). Furthermore, the Court has held that the State is never required to prove in express terms an agreement between the parties to do the unlawful act, but it is sufficient when the evidence reveals, from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the parties to commit the crime. Id. (citations omitted). Graham and Hudson s actions on the night that they were caught with marijuana at the jail showed that they had conspired with each other to possess drugs inside a correctional facility. The evidence that was presented at trial showed that both Graham and Hudson stood by the outside back 2
door of the jail yard, waited for something to be delivered to them, and then retrieved something from a crack in the door. (TR 122). Graham wore a blanket, because he had complained, prior to going outside, that he was cold. (TR 141). One of the jailers observed this activity while she monitored the security cameras, and reported the activity. (TR 130). Other jailers reported to the scene and searched the inmates. (TR 140). The jailers searched Hudson, first, and found contraband. (TR 152). Then, when they attempted to search Graham, Graham attempted to hand Hudson his blanket. (TR 141 and 151). The jailers struggled with Graham, but recovered the blanket from Graham and found contraband in the blanket. (TR 141-142). When they recovered the blanket and the contraband, Graham attempted to persuade one of the jailers to overlook the situation. (TR 152). A video of the jail yard activity was shown to the jury, and the contraband was admitted into evidence. (TR 184). An expert in drug analysis identified the contraband as marijuana. (TR 184). The jury functions to determine the facts from the evidence presented and to draw all reasonable inferences from the facts. Davis, 485 So. 2d at 1058. Although the defense did not put on any evidence, it tried to cast doubt on the proof presented by the State and argued to the jury that the video that showed the transaction was in rough shape and had some serious gaps in it. (TR 211). Although defense counsel all but conceded that the video showed that Graham possessed marijuana, defense counsel argued that the video did not show that he brought the marijuana into the jail, or that he conspired to possess it. (TR 215). Based on the evidence, arguments, and instructions that were given, the jury could have convicted Graham of either count charged in his indictment, or could have found him not guilty. The jury, after considering the evidence and the arguments that were made, could not reach a unanimous verdict on Count I, but found him guilty of Count II. (TR 219 and 225-226). Graham argues that the State did not present any evidence to show a union of the minds 3
between Graham and Hudson. (Appellant s Brief p. 4). He also argues that the evidence was circumstantial, and the State s case rested solely on speculation. (Appellant s Brief p. 4). Although a circumstantial jury instruction was given, this was not a purely circumstantial case. (CP 82). The video tape that showed the jail yard activity was direct evidence ( photographic eyewitness evidence ) of the conspiracy. See Ford v. State, 546 So. 2d 686, 689 (Miss. 1989)(finding that surveillance footage contained direct evidence of overt acts inferring a conspiracy; therefore, the circumstantial evidence rule did not apply). The trial court even found that the video was direct evidence, but also found that it was circumstantial in nature because it required the viewer to make some inferences about what was happening on the tape, based on the knowledge that both men had contraband after the interaction that is shown on the tape. (TR 202). Regardless of whether the circumstantial instruction was unwarranted, the evidence was sufficient to support the jury s verdict. The video provided direct evidence of overt acts inferring a conspiracy, and the fact that the two men were found with marijuana immediately after their interactions captured on film show that they conspired to possess a controlled substance in a correctional facility. The jury s verdict is supported by sufficient evidence, and this issue is without merit. II. Graham s indictment was not deficient. For the first time on appeal, Graham claims that his indictment was defective. This Court has held that failure to object to a defective indictment waives the issue for purposes of appeal. Poyner v. State, 962 So. 2d 68, 73 (Miss. Ct. App. 2007)(citing Robertson v. State, 921 So. 2d 348, 351 (Miss. Ct. App. 2005)). Although the issue was waived, it is also without merit. Graham s indictment informed him that he was charged with being in possession of a controlled substance (Marijuana) in the Lincoln county jail, and also charged that he conspired with Terrance Hudson to commit the crime of possession of a controlled substance inside a correctional 4
facility. (CP 5-6). The Appellant complains that his indictment was deficient because Count II did not specifically set forth the controlled substance that he was alleged to have conspired to illegally possess; therefore, he argues, he is entitled to a new trial. (Appellant s Brief p. 5-6)(citing Warren v. State, 2013-KA-00926-COA (January 27, 2015)). However, Count II of Graham s indictment informed him that he was charged with conspiring to possess a controlled substance and stated that the conduct alleged and set forth in counts one and two of his indictment amounted to two or more acts or transactions connected together or constituting parts of a common scheme or plan.... Therefore, the conduct that was alleged in Count I was incorporated into Count II. He was clearly charged (in Count II) for conspiring to possess marihuana. And it is obvious that he was fully apprised of what the State was charging him for on each count. (TR 4). This issue is without merit. III. The State proved that Graham was a habitual offender. At the hearing on the State s motion to amend Graham s indictment to charge him as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81, the trial court received two exhibits into evidence. (TR 4). Those exhibits were certified copies of Graham s prior convictions for burglary of an automobile, and possession of a firearm by a convicted felon: Cause numbers 2001-248-MS, and 05-104-LT, respectively. (TR 3). The trial court granted the State s motion to amend the indictment, and found that he was a 99-19-81 habitual offender. (TR 5). At the sentencing hearing, the trial court recalled that it had previously found Graham to be a habitual offender, pursuant to Mississippi Code Annotated Section 99-19-81. (TR 230-231). The trial court sentenced Graham to serve 5 years of incarceration, and ordered him to pay a $2,000 fine, in addition to court costs. (TR 231). For the first time on appeal, Graham argues that he should not have been sentenced as a habitual offender because the State presented its evidence at the hearing on the motion to amend the 5
indictment, rather than at the sentencing hearing. (Appellant s Brief p. 6). This argument is barred because he never raised it before the trial court. Conner v. State, 138 So. 3d 143, 150 (Miss. 2014). While acknowledging the bar, Graham invites this Court to find plain error. (Appellant s Brief p. 6). To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial. Id. at 151 (citation omitted). The rule that applies in this case is Rule 11.03 of the Uniform Circuit and County Court Rules. URCCC Rule 11.03 provides that, in order to receive an enhanced punishment for a subsequent offense, the trial court should hold a hearing without a jury to determine whether he has prior convictions which would warrant his sentencing as a habitual offender. The purposes of the rule are to withhold from the jury knowledge of the defendant s prior criminal convictions, and to give the defendant a reasonable opportunity to challenge the State s proof. Minchew v. State, 967 So. 2d 1244, 1248 (Miss. Ct. App. 2007)(citation omitted) and Conner, 138 So. 3d at 151. The Supreme Court s holding in Conner v. State, shows that an enhanced sentence can be affirmed, even if evidence of the defendant s prior convictions is introduced prior to trial, rather than at the sentencing hearing. In Conner v. State, the appellant raised an issue similar to the one raised by Graham. Conner argued that the State did not present any evidence at his sentencing hearing; therefore, the State failed to prove his habitual offender status beyond a reasonable doubt. Id. at 152. However, just as it did in the present case, the State introduced evidence of his habitual offender status at the hearing on its motion to amend the indictment. Id. The trial court incorporated those exhibits (by reference) into the record of the sentencing hearing, and found the defendant to be a habitual offender. Id. Although the Supreme Court noted that this was not the preferred method of introduction, it found that no error occurred, and affirmed the trial court s finding that Conner was 6
a habitual offender. Id. This Court s opinion in Heidelberg v. State, 45 So. 3d 730 (Miss. Ct. App. 2010), is also particularly instructive. In Heidelberg, the State moved to amend Heidelberg s indictment, prior to trial, and attached certified copies of his prior felony sentencing orders to its motion. Id. at 732. The trial court granted the State s motion to amend to reflect Heidelberg s prior convictions and habitual offender status, and incorporated the State s attachment into the amended indictment. Id. at 733. A jury convicted Heidelberg of sexual battery, and then the circuit judge sentenced him as a habitual offender. Id. at 732. Heidelberg did not raise an objection during his sentencing hearing, and he did not contest the procedure that the trial court followed at sentencing in his motion for new trial. Id. Instead, he complained, for the first time on appeal, that the State s failure to sufficiently establish his prior convictions at his sentencing hearing required the reversal of his enhanced sentence. Id. He did not argue that he was surprised by the enhanced sentence, or that his indictment should not have been amended. Id. He argued that this Court s opinion in Vince v. State, 844 So. 2d 510 (Miss. Ct. App. 2003) set forth a compelling reason to vacate his sentence, i.e., the absence of compelling 1 proof, during sentencing, of his prior convictions. Id. This Court found that Heidelberg s case was distinguishable from Vince because there were no uncertainties when Heidelberg stood for sentencing. Id. at 733. The Court found that Heidelberg had advance notice of the State s intent to seek an enhanced sentence. Id. And, at sentencing, the State reminded the judge of Heidelberg s 1 In Vince, the Appellant argued that the State failed to present sufficient evidence to establish his two prior convictions; however, this Court found plain error because the indictment did not contain sufficient information to properly charge his prior convictions. Vince, 844 So. 2d at 516. As an alternative holding, the Court found that the State did not satisfy its burden to prove Vince s prior convictions beyond a reasonable doubt, because the method of proof (and NCIC printout) was not made part of the record. Id. at 517. 7
status as a habitual offender. Id. Heidelberg did not object, and his defense counsel stated that he did not believe there s much choice in sentencing. Id. at 734. Ultimately, this Court found that Heidelberg had sufficient notice and ample opportunity to challenge his convictions, but he chose not to do so. Id. And even though the State did not offer the certified sentencing orders during sentencing, this Court found that there had been no manifest injustice in the trial court s imposition of the enhanced sentence. Id. Based on the holdings in Conner and Heidelberg, reversal is not automatically warranted in cases where the State does not present evidence of a defendant s prior convictions during the sentencing hearing. The present case is almost identical to Heidelberg. Like Heidelberg, Graham argues that his case is indistinguishable in any material particular from Vince. (Appellant s Brief p. 8). However, also like Heidelberg, Graham only argues that his the enhanced portion of his sentence should be vacated because the State did not provide evidence of his prior convictions at his sentencing hearing. (Appellant s Brief p. 8). He does not argue that his indictment was improperly amended, or that he was surprised by the enhanced sentencing. This Court should hold, as it did in Heidelberg, that no manifest injustice resulted in the imposition of Graham s enhanced sentence. Like in Heidelberg, evidence of Graham s prior convictions were made part of the record, prior to the court s finding that he was a habitual offender. And, when it came time to be sentenced, Graham knew that he would be sentenced as a habitual offender. Graham had sufficient notice and ample opportunity to challenge the charge that he was a habitual offender; he chose not to. Graham has not presented a compelling reason why his sentence should be vacated; therefore, it should be affirmed. 8
Conclusion The issues presented by Graham are either barred or are without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm Graham s conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104233 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 9
Certificate of Service I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Michael M. Taylor Circuit Court Judge Post Office Box 1350 Brookhaven, Mississippi 39602 Honorable Dewitt (Dee) Bates, Jr. District Attorney 284 E. Bay Street Magnolia, MS 39652 Justin T. Cook, Esquire Attorney At Law MS Office of the State Public Defender Indigent Appeals Division Post Office Box 3510 Jackson, Mississippi 39207-3510 This the 17th day of July, 2015. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL 10