Alexander v. State

• Decision Date: 18 February 1987
• Docket Number: No. 56208,56208
• Citation: 503 So.2d 235
• Parties: Lawrence ALEXANDER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 235

503 So.2d 235

Lawrence ALEXANDER v. STATE of Mississippi.

No. 56208.

Supreme Court of Mississippi.

Feb. 18, 1987.

Rabun Jones, Howard Dyer, III, Dyer, Dyer, Dyer & Jones, Greenville, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal from a Sunflower County conviction on a charge of possession of marijuana with intent to distribute presents two issues: a relatively straightforward probable cause question followed by a far more troublesome ineffective assistance of counsel claim. For the reasons set forth below, we hold both assignments of error without merit. On the latter we do so only because counsel's undeniably lackluster performance at trial nevertheless fails to undermine our confidence that a just verdict was returned.

II.

Lawrence Alexander, Defendant below and Appellant here, was born on August 1, 1945. On October 4, 1984, he was indicted by the Sunflower County Grand Jury and charged with the June 12, 1984, possession of 49.2 grams (approximately 1.722 ounces) of marijuana with intent to sell, barter, transfer, distribute or dispense. The case was called for trial on October 15, 1984, wherein the following factual scenario developed.

On June 12, 1984, Sunflower County Sheriff's Deputy Charles Smith, in response to information involving the stealing of some dynamite received from a confidential informant, cruised Church Street in Indianola, Mississippi. The same informant who had provided the dynamite information, which concerned an incident unrelated to the case at bar, had also told Deputy Smith that Alexander and Henry Peterson were known drug dealers who worked Church Street selling marijuana and who were probably armed. In addition, Deputy Smith had received anonymous telephone calls that Peterson and Alexander were selling drugs. Although both Peterson and Alexander had been arrested before on a drug charge, no convictions resulted.

While looking for the dynamite suspect, Deputy Smith made several trips up and down Church Street but saw nothing suspicious. Meeting another officer, Deputy White, Smith learned that White had earlier seen Peterson with a paper grocery bag. After several trips down Church Street Smith observed Peterson, seated on the hood of a car, abruptly place behind him a brown grocery bag, about twelve inches tall. Smith stopped his patrol car blocking all traffic and asked Peterson to approach. Glancing back at the grocery bag, Peterson complied. Smith then instructed Peterson to bring the bag to him. When Peterson returned and retrieved the bag and began sauntering away, Smith exited his vehicle and informed Peterson that if he ran, Smith would shoot him. When Peterson returned with the grocery bag, Smith opened it and found numerous small manila envelopes inside.

While the above events were transpiring, Alexander was seated on another automobile parked two to three feet away from the vehicle upon which Mr. Peterson had been seated and upon which the bag had been placed. Once Deputy Smith had the bag in his possession, he told Alexander to remain seated on the car. Alexander had just shifted his position on the car and Deputy Smith observed a bulge on Alexander's left side, but could not discern what caused it. At this point, another deputy arrived and they both approached Alexander who then made an attempt to slide off the car. As Deputy Smith and the other officer approached him, Alexander got off the car and began walking away. Deputy Smith admonished Alexander that if he moved off the car, he would be locked up. According to Deputy Smith, Alexander, then with his back toward the deputy, unbuttoned the top two buttons of his coat, which buttoned all the way from his navel to his neck. Upon seeing this, Deputy Smith, with his own revolver drawn, advised Alexander that if he touched a gun, he would be shot.

The deputy then approached Alexander and reached in his coat and removed a .38 caliber pistol from Alexander's left side. Alexander was then immediately frisked and a number of manilla envelopes containing almost all of the marijuana utilized ultimately to convict him as well as approximately $500.00 in cash were discovered upon him and seized.

The record does not reflect that a weapon was found on Peterson, who had been arrested and searched prior to the search of Alexander. Nevertheless, Deputy Smith testified that he suspected that the bulge in Alexander's coat was a firearm because his informant had told him that both Peterson and Alexander carried pistols.

All of the above events transpired at approximately 7:00 P.M. on June 12, 1984. The proof also showed that Alexander was, at the time of his arrest, in close proximity to a business establishment he was opening on Church Street. Also, the proof revealed that two hours transpired between the time Officer Smith initially saw Alexander and Peterson on Church Street and the time they were actually arrested.

On August 12, 1984, following advice and waiver of his Miranda rights, Alexander gave a statement which reads as follows:

I obtained the pistol that was taken from me by Deputy Charles Smith last Thursday from Roy Lee Hall for pawn of $75.00. I do not wish to make a statement concerning the marijuana that was taken from me. I also do not wish to make a statement about the money that Deputy Smith took from my socks and pockets.

This statement was received in evidence before the jury. On the important issue of intent, the evidence reflected that Alexander was found in possession of 39 sealed envelopes, each containing the equivalent of a nickel bag of marijuana, consisting the aggregate of 49.2 grams or 1.722 ounces. Alexander also had on his person some $500.00 in cash, a small date book which made references to several transactions involving various individuals and to "pounds" and "bags".

Deputy Sheriff Smith testified, without objection, that his confidential informant had advised him that Alexander was in the business of selling marijuana and that he and Peterson were joint venturers in this regard.

In his own defense Alexander took the witness stand and on cross-examination acknowledged that the marijuana was his and, after first insisting that it was all for his personal use, conceded that a part of it was distributed to his friends. The following colloquy between the prosecuting attorney and Alexander is of importance in this regard:

Q. Your personal use. Thirty-nine nickel bags of Marijuana were for your personal use?

A. Thirty-nine nickel bags for my personal use--not as saying that I was smoking it. I have friends that do smoke it.

Q. So you kept it there to give to your friends?

A. No, not necessarily; not all of it.

Q. Not all of it, but some of it?

A. Right.

Q. I see. In other words, they don't pay you; you just give it to them?

A. Some of it.

In this state of the evidence the case was submitted to the jury which found Alexander guilty of unlawful possession of marijuana with intent to distribute, etc. Miss.Code Ann. Sec. 41-29-139(a)(1) (Supp.1986). Alexander was sentenced to the custody of the Mississippi Department of Corrections for a period of twenty years, with ten years suspended, and in addition he was assessed a fine of $15,000.00. See Miss.Code Ann. Sec. 41-29-139(b)(2) (Supp.1986).

III.

On this appeal, Alexander makes no claim that the evidence was insufficient to undergird a conviction, nor could he with credibility. The evidence before the jury is such that reasonable men might easily have found beyond all reasonable doubt that Alexander was indeed in possession of more than an ounce of marijuana with intent to sell.

Instead, Alexander assigns as errors, first, that the Circuit Court committed error when it overruled his pretrial motion to suppress, Alexander's argument being that there was no probable cause for his being detained and searched on June 12, 1984. Second, Alexander charges that he was denied effective assistance of counsel.

On October 11, 1984, prior to trial, Alexander filed a motion to suppress asserting that the marijuana seized from him was taken in violation of his Fourth Amendment rights in that Deputy Smith proceeded on the occasion in question without probable cause. The record reflects, however, that Smith had information from a confidential informant that Alexander was selling marijuana and that Church Street in Indianola, Mississippi, was his place of business. Added to this information were several previous anonymous telephone calls to the effect that Alexander and Peterson were selling drugs. Deputy Smith observed Alexander and Peterson on Church Street where they were expected to be found. The trial judge held that, considering

Among other things, the totality of the circumstances surrounding the incident out of which the arrest arises, what the officer knew, the source of his information, and what he observed including the actions of the participants as men and what they did and how they acted; and the court is the of the opinion that the arrest was justified, that it was legally justified; that is to say that the officer had probable cause to make the arrest.

Without dispute, of course, the search was incident to the arrest. Accordingly, the motion to suppress was denied.

In Gandy v. State, 438 So.2d 279 (Miss.1983) this Court articulated the following rule:

Before a warrantless yet lawful arrest could be made, it was not necessary that ... [the police] have reasonably believed beyond a reasonable doubt that ... [the defendant] was involved in a cocaine deal.... [The police] need only have entertained a reasonable belief that ... [the defendant] was involved--a belief rising above mere unfounded suspicion.

438 So.2d at 283.

This rule is reiterated in Moore v. State, 493 So.2d 1295 (Miss.1986); Henry v. State, 486 So.2d 1209 (Miss.1986); Riddles v....