Bell v. State

• Decision Date: 17 October 2000
• Docket Number: No. 1998-KA-01679-COA.,1998-KA-01679-COA.
• Citation: 769 So.2d 247
• Parties: Peter BELL a/k/a Peter E. Bell, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

769 So.2d 247

Peter BELL a/k/a Peter E. Bell, Appellant, v. STATE of Mississippi, Appellee.

No. 1998-KA-01679-COA.

Court of Appeals of Mississippi.

October 17, 2000.

Cecil Gerald Woods, Jr., Gulfport, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE KING, P.J., LEE, AND MYERS, JJ.

LEE, J., for the Court:

¶ 1. Peter Bell was convicted of the transfer of a controlled substance to Russell Holliman an undercover agent. The substance was later determined to be .1 gram of cocaine. Originally, Bell was indicted for selling the cocaine within 1,500 feet of Morning Star Baptist Church which would have enhanced his sentence. However, at the time of sentencing the State did not pursue an increased sentence based on the fact that the sell occurred within 1,500 feet of a church, but instead, since Bell was an habitual offender, chose to pursue an increased sentence under the habitual offender statute of Miss.Code Ann. § 99-19-81 (Rev.1994). Due to his habitual status, Bell was sentenced to thirty years in the Mississippi Department of Corrections. Aggrieved by this sentence, Bell filed a timely appeal and presents the following issues: (1) whether the sentence of thirty years constitutes a sentence of life in prison and is cruel and unusual punishment, (2) whether the trial court erred when it allowed the State to amend the indictment on the day of trial to include the habitual offender status, (3) whether the trial court erred in denying Bell's motion to dismiss based on the lack of a speedy trial, (4) whether the trial court erred in not quashing the indictment, and (5) whether the trial court erred in not granting a directed verdict. Finding these issues to be without merit, we affirm the decision of the trial judge.

FACTS

¶ 2. On August 1, 1997, Agent Russell Holliman participated in the undercover purchase of narcotics in Bay St. Louis. Holliman met with Detective Shane Corr at approximately 5:30 p.m. where he was searched and received twenty dollars to purchase the controlled substance. Holliman not only acquired the money to make the purchase, but also received an automobile furnished with audio and video equipment. After Holliman obtained the money and the automobile, he proceeded to patrol the streets of Bay St. Louis.

¶ 3. Eventually, Holliman passed an automobile and the black male driving the automobile "yelled" at him and he stopped. The individual then inquired as to what Holliman was looking for. Holliman stated that he was looking for "a twenty." Holliman explained that the male then leaned out of his automobile into his and gave him two small off-white rocks which appeared to be crack cocaine, and he gave the subject twenty dollars. It was at this time that some individuals approached the automobiles on bicycles and Holliman drove away from the scene.

¶ 4. Shortly after the transaction, Holliman met with Corr and gave him a description of the male with whom he made the transaction and a description of the automobile the suspect was driving. Holliman described the automobile as an older model Ford LTD with a white body and a red top. Holliman also delivered the substance to Corr. While the automobile driven by Holliman had been equipped with audio and video equipment to record the transaction, the State conceded that it was not functioning properly. Therefore, there is no audio or video recording positively identifying Bell as a participant in the transfer of the controlled substance.

¶ 5. Once Corr received the descriptions and the substance from Holliman he patrolled the location where the purchase occurred and found an automobile matching the description. Corr knew the individual in the automobile which matched the description given by Holliman as Mr. Bell. Thereafter, Corr went to the police department and compiled six photographs, including a photograph of Bell, for Holliman to examine in a photographic lineup. Bell's photograph was identified by Holliman as the individual who transferred the substance to him. The identification of Bell by Holliman occurred approximately fifty-six minutes from the time of the transaction. On August 8, 1997, Bell was arrested for the commission of this crime.

¶ 6. At the trial of this matter, a Mississippi Crime Laboratory employee who tested the substance positively identified the presence of cocaine.

¶ 7. When Bell testified at the trial, he denied having sold the cocaine to Holliman.

DISCUSSION

I. WHETHER THE SENTENCE OF THIRTY YEARS CONSTITUTES A SENTENCE OF LIFE IN PRISON AND IS CRUEL AND UNUSUAL PUNISHMENT.

¶ 8. Bell argues that his sentence of thirty years equals cruel and unusual punishment pursuant to the Eighth Amendment and cites the case of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to support his argument. In Solem, the United States Supreme Court established a three prong test to assist courts in their determination of whether an imposed sentence was disproportionate to the crime committed and was violative of the Eighth Amendment. Id. at 277, 103 S.Ct. 3001. The three prong analysis is as follows: (1) look at the gravity of the offense and the harshness of the penalty, (2) compare the sentences imposed on other criminals in the same jurisdiction, and (3) weigh the sentences imposed for the commission of analogous crimes in other jurisdictions. Id. at 290-91, 103 S.Ct. 3001. Counsel for Bell attempted to prove the sentence was disproportional by documenting in his brief sentences imposed in the same jurisdiction involving the sale of controlled substances. However, this Court is not bound to analyze the elements listed in Solem, or the presentation of other crimes and their sentences, as they might pertain to the Solem analysis for two reasons: (1) this argument was not raised before the lower court so it could rule on the merits of the issue, and (2) none of the statistical information regarding similar sentences imposed in the same jurisdiction is contained in the record. See Davis v. State, 750 So.2d 552 (¶ 40) (Miss.Ct.App.1999) (stating that failure to raise the issues which were capable of determination at the trial court level or on direct appeal constitutes a waiver and is procedurally barred); Hennington v. State, 702 So.2d 403 (¶ 29) (Miss.1997) (stating that facts that are sought to be proved by a party must be placed in the record to be considered by an appellate court). Nevertheless, even if this argument had been presented to the trial court we find that it is without merit.

¶ 9. Sentencing is generally within the sound discretion of the trial judge and the trial judge's decision will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.2d 342 (¶ 10) (Miss.1998). The practical effect of this general rule is that a trial judge's sentencing decision has traditionally been treated as unreviewable so long as the sentence was within the statutory limits. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). In Davis v. State, 724 So.2d 342 (¶ 11) (Miss.1998), the Mississippi Supreme Court acknowledged that the length of sentences is properly controlled by the legislature. Additionally, in McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.1992), when the United States Court of Appeals for the Fifth Circuit addressed the issue of disproportionality in sentencing, it noted that when a court conducts a proportionality analysis under the Eighth Amendment, it must not address the present offense only, but must also consider the present offense with the Mississippi habitual offender statute if applicable. Upon conviction for the sale of cocaine, a person may be sentenced to "not more than 30 years...." Miss.Code Ann. § 41-29-139(b)(1) (Supp.1999). Mississippi law provides several instances where a sentence for the sale of cocaine may be enhanced. Bell's sentence was enhanced pursuant to Miss.Code Ann. § 99-19-81 (Rev.1994) (providing for mandatory maximum sentence without parole or probation for offenders who have been convicted twice previously of any felony or federal crime and who have been sentenced to separate terms of one year or more).

¶ 10. The Mississippi Supreme Court acknowledged in Hoops v. State, 681 So.2d 521, 538 (Miss.1996), that Solem was overruled in Harmelin v. Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), "to the extent that it found a guarantee in the proportionality in the Eighth Amendment." Therefore, with Harmelin in place, it appears that the Mississippi Supreme Court has held that Solem is only applicable if a threshold comparison of the crime committed to the sentence imposed leads to an inference of "gross disproportionality." Hoops, 681 So.2d at 538. Bell cites Clowers v. State, 522 So.2d 762, 763-65 (Miss.1988), to support his argument for the first prong of the Solem test regarding disproportionality. As mentioned earlier, this prong requires trial and appellate courts to compare the gravity of the offense against the harshness of the penalty. Solem v. Helm, 463 U.S. 277 at 290-91, 103 S.Ct. 3001. In Clowers, the defendant was an habitual offender but had presently been convicted of forging a $250 check. Clowers, 522 So.2d at 763. As an habitual offender, Clowers was subject to the mandatory maximum sentence of fifteen years without parole. Id. The trial court imposed a sentence of less than fifteen years on the grounds that the mandatory maximum sentence would be disproportionate to the crime. Id. On cross-appeal, the Mississippi Supreme Court affirmed. Id. at 765.

¶ 11. Clowers is distinguishable from the case at bar. When the trial judge was preparing to render the sentence to Clowers he expressed his concerns about the current maximum sentence for forgery. Id. at 764. The trial judge explained that he believed the...