Smith v. State

• Citation: 656 So.2d 95
• Decision Date: 11 May 1995
• Docket Number: No. 91-KA-00595-SCT,91-KA-00595-SCT
• Parties: Charles E. SMITH v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 95

656 So.2d 95

Charles E. SMITH v. STATE of Mississippi.

No. 91-KA-00595-SCT.

Supreme Court of Mississippi.

May 11, 1995.

George Dunbar Prewitt, Jr., Greenville, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

In this crack cocaine case we are compelled to consider the proper handling and import of evidence of prior sales admitted for the purpose of showing intent to distribute. We conclude that such evidence is admissible for the purpose described if the trial court concludes that, under the circumstances, its probative value outweighs its prejudicial effect. A limiting instruction should and, if sought, must be given. We also conclude that such evidence, without more on the issue of intent, is insufficient to support a conviction for the offense of possession with intent. We, therefore, reverse and remand for sentencing on the offense of possession of cocaine.

I.

On January 3, 1991, Charles E. Smith was arrested during a large-scale "round-up" culminating several months of drug investigations by law enforcement officers in Greenville, Mississippi. The officers had a warrant for Smith's arrest stemming from two sales of cocaine to an undercover policeman in 1989. Incident to his arrest, Smith was searched and found to be in possession of a vial containing sixteen pieces of what appeared to be crack cocaine. He was subsequently charged with possession of cocaine with intent to distribute, in violation of Miss.Code Ann. Sec. 41-29-139 (Supp.1992).

Prior to his trial, Smith argued that he was unlawfully searched and unsuccessfully sought to have the evidence suppressed. After a verdict of guilty, the judge fined Smith $50,000.00 and sentenced him to thirty years in prison. The lower court also revoked Smith's probation on a five year sentence relating to a previous crime, and ordered that the two sentences run consecutively. Smith appealed his conviction and sentence to this Court, asserting the following as error:

1. THE LOWER COURT ERRED IN ADMITTING, OVER OBJECTION, EVIDENCE OF OTHER CRIMES THAT WERE REMOTE IN TIME ON THE ISSUE OF INTENT.

2. THE LOWER COURT ERRED IN ALLOWING THE PROSECUTION TO SUBMIT A LESSER INCLUDED INSTRUCTION ON THE ISSUE OF POSSESSION.

3. THE LOWER COURT ERRED IN NOT GIVING, SUA SPONTE, A LIMITING INSTRUCTION ON THE PURPOSE FOR WHICH THE OTHER CRIMES EVIDENCE WAS ADMITTED.

4. THE LOWER COURT ERRED IN NOT SUPPRESSING THE EVIDENCE GAINED PURSUANT TO A DEFECTIVE SEARCH WARRANT AND ON THE BASIS OF PRETEXT.

5. THE LOWER COURT ERRED IN UNCONDITIONALLY ADMITTING THE EVIDENCE OF OTHER CRIMES WITHOUT REQUIRING THE STATE TO PROVE, AT SOME POINT, THE EXISTENCE OF THE COCAINE IN THE REMOTE CRIMES.

6. THE LOWER COURT ERRED IN NOT GIVING NOTICE OF ITS INTENT TO REVOKE THE PAROLE OF THE APPELLANT AT THE SENTENCING HEARING.

7. THE LOWER COURT ERRED IN ALLOWING THE STATE TO STATE, IN CLOSING ARGUMENT, THAT THE JURY COULD FIND THE APPELLANT NOT GUILTY AND PUT DRUGS BACK ON THE STREETS.

8. THE LOWER COURT ERRED IN REFUSING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION AND AN INSTRUCTION THAT STATED THAT IF THE AMOUNT OF COCAINE AND OTHER EVIDENCE RAISED THE POSSIBILITY THAT THE CONTRABAND COULD HAVE BEEN FOR PERSONAL USE, THEN

THE STATE HAD FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.

9. THE LOWER COURT ERRED IN DENYING A DIRECTED VERDICT AND PEREMPTORY INSTRUCTION.

10. THE LOWER COURT ERRED IN REFUSING AN IDENTIFICATION INSTRUCTION.

11. THE STATE FAILED TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT.

12. THE STATE FAILED TO PROVE THAT THE SUBSTANCE INTRODUCED AT TRIAL WAS COCAINE.

II.

At trial, the State offered evidence of prior acts committed by Smith for the asserted reason of establishing his intent to distribute. Specifically, during direct examination of Herbert Partlow, a police officer, the following exchange took place, over a timely defense objection:

Q. Have you ever seen the defendant sell drugs?

A. Yes, I have.

Q. On how many occasions?

A. Twice.

Q. In what year?

A. '89--1989.

Q. You were physically present?

A. Right.

Q. Who did he sell them to?

A. To me.

Q. And in what capacity were you working in at the time he sold them to you?

A. I was working in UC--undercover capacity.

Q. Did the defendant know you were an undercover officer for the Special Operations Unit at the time?

A. No, he didn't.

The trial court admitted the testimony under the M.R.E. 404(b) exception for prior acts offered to show "intent." The trial judge further balanced the probity of the evidence against its prejudicial effect under M.R.E. 403 and concluded that admission was proper.

On appeal, Smith argues that this testimony was inadmissible because it dealt with events that did not occur at or about the time of trial and because it was offered to impermissibly prove a "propensity" to sell. The State counters by asserting that the evidence was offered to show intent to sell rather than propensity.

a.

"The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990); citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989); Monk v. State, 532 So.2d 592, 599 (Miss.1988). Unless the trial judge's discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling. Shearer v. State, 423 So.2d 824, 826 (Miss.1983), citing Page v. State, 295 So.2d 279 (Miss.1974). The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238.

Parker v. State, 606 So.2d 1132, 1136 (Miss.1992).

b.

The admissibility of evidence related to prior acts is governed, in part, by Rule 404(b) of the Mississippi Rules of Evidence, which provides:

Evidence 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).

The rationale behind the Rule has been explained as follows:

The reason for the rule is to preclude the State from raising the "forbidden inferential sequence," that the accused has committed other crimes and is therefore more likely to be guilty of the offense charged. Lancaster v. State, 472 So.2d 363 (Miss.1985); Davis v. State, 377 So.2d 1076 (Miss.1979).

Grounded in the rule's purpose are exceptions. Evidence of another offense is admissible when offered, not to show the accused's criminal tendencies, but instead to prove identity, knowledge, intent, common criminal scheme or plan, or absence of mistake.

Robinson v. State, 497 So.2d 440, 442 (Miss.1986).

We have previously held that evidence of prior drug transactions is admissible to show predisposition when a defendant raises the defense of entrapment. See e.g., Hopson v. State, 625 So.2d 395, 402 (Miss.1993); Sayre v. State, 533 So.2d 464 (Miss.1988). We have not, however, definitively addressed the admissibility of prior sales to show an intent to distribute. We hold that evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction.

Our holding is in line with the great weight of authority construing the federal counterpart and genesis of Mississippi's Rule 404(b). For example, in a very similar case, the Sixth Circuit held that evidence of a prior crack cocaine sale was properly admitted as part of the prosecution's case-in-chief. United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir.1989). In Rodriguez, the court stated:

To make out the elements of its indictment, the government was required to show that defendant possessed cocaine with the intent to distribute it. Thus, the evidence relating to the November 24, 1987, transaction was properly admitted by the district court as probative of defendant's criminal intent to distribute cocaine.

Id. at 1065; see also United States v. Davis, 15 F.3d 526 (6th Cir.1994) (evidence of Davis' 30 to 40 prior crack sales was held admissible under F.R.E. 404(b) on the issues of intent to distribute).

The ultimate resolution of this issue of course depends on the purpose for which the testimony was offered. Propensity is the only proscribed purpose. The State contends that the testimony was offered "to show the intent with which Smith possessed the cocaine found on his person at the time of his arrest." It is difficult to distinguish this purpose from the forbidden purpose. The suggestion is that if he intended to distribute before, he intended to distribute this time. The distinction, apparently embraced by the great weight of authority is that while the prior act is not accepted as evidence of the entire crime, it is accepted as evidence of a constituent element of the crime. In prior opinions, we have followed the general trend and indicated that previous involvement with drugs can be admitted on the issue of intent to distribute. See Jowers v. State, 593 So.2d 46, 47 (Miss.1992). Given the difficulty of proving subjective intent we see no reason to categorically exclude evidence of prior sales.

Even when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the "ultimate filter" of M.R.E. 403. Jenkins v. State, 507 So.2d 89, 93 (Miss.1987). Furthermore, the jury must be informed as to the limited purpose for which they are allowed to consider the other-crimes evidence. This cannot be accomplished if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." The trial court ruled that the probative value of two 1989 sales on the issue...