Boyd v. State

• Decision Date: 17 March 1994
• Docket Number: No. 91-KA-00636,91-KA-00636
• Citation: 634 So.2d 113
• Parties: J.W. BOYD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 113

634 So.2d 113

J.W. BOYD v. STATE of Mississippi.

No. 91-KA-00636.

Supreme Court of Mississippi.

March 17, 1994.

Ross R. Barnett, Jr., Barnett Law Firm, Thomas J. Lowe, Jr., Jackson, for appellant.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the Court:

J.W. Boyd was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, for the crime of possession of cocaine with intent to distribute and was sentenced as an habitual offender. Boyd had previously been convicted of armed robbery and receiving stolen property. This case was grounded in disputed factual issues which a jury was called on to weigh. The jury simply did not accept Boyd's version.

The physical and circumstantial evidence support the verdict. Officer Preston Carter observed Boyd on Ash Street in a characteristic drug sale scenario. After being ordered to stop by Officer Carter, Boyd ran and attempted to barricade himself in a bedroom in his mother's home. Officer Carter observed Boyd toss something near the bed. After Officer Carter secured custody of Boyd, two rocks of cocaine were found by Detective Steven Tharpe, a back up police officer, who had just arrived on the scene. The drugs were found exactly where Officer Carter stated that he had observed Boyd toss something. Money was found on Boyd's person. The characteristic drug sale scenario, the actual possession of cocaine and the money on Boyd's person make the evidence sufficient to withstand review of the verdict.

The trial judge imposed a sentence of 12 years as an habitual criminal in the custody of the Mississippi Department of Corrections and a fine of $1,000,000. Aggrieved, Boyd appeals to this Court, assigning as error the following:

I. The Evidence was Insufficient to Support the Verdict on the Matter of Intent.

II. There was Insufficient Evidence to Convict on the Matter of Possession.

Upon examination of the two issues raised by Boyd, we find no error and affirm the decision of the trial court.

THE FACTS

Late on the evening of April 19, 1991, Officer Preston Carter, assigned to the Street Corner Crack Cocaine Unit of the Jackson Police Department Narcotics Division, was patrolling the 300 block of West Ash Street in Jackson in an unmarked car. When he turned onto Ash from Bailey Avenue he saw a small white car stopped in the street in the middle of the block. Officer Carter saw a man standing at the window of the white car in what Carter believed was a dope deal. Officer Carter had made a hundred or so arrests in this same area and knew this was a high drug area.

Carter testified that typically drug dealers will have two or more rocks of crack cocaine in their hands so they have the option of either eating the substance or throwing it away. When a prospective customer drives up for "curb service," the dealer will walk up and present what they have in open palm to give the customer the option of picking whichever rock they want.

Carter noticed that Boyd had his hand out in the manner described as typical of a drug deal. When Boyd saw Carter he immediately balled up his hand and stuck it in his jacket pocket. Carter recognized Boyd as someone he had encountered in the area numerous times. Boyd hurriedly walked toward the back of 335 West Ash, which is his mother's home. The white car sped off; Carter pulled his vehicle over and started toward Boyd. According to Carter, he yelled for Boyd to "Hold up." When Boyd did not stop, Carter pursued him into the house. Boyd ran into a bedroom and tried to force the door closed.

During the pushing and shoving on the door, Carter saw Boyd reach into his pocket several times. The first time Boyd took his hand out and he threw something behind him. When Boyd finally gave in, Carter ordered him to lie face down on the bed. While Carter was frisking Boyd, Detective Steven Tharpe had arrived and Carter told him that he believed Boyd had thrown something across the bed on the floor. Tharpe found two rocks of cocaine between the wall and the bed. A cocaine pipe was also found in the room. After Boyd was arrested, he was searched and $101.00 in currency was found.

Valerie Jordan, the mother of three children by Boyd's nephew, testified that she was in the front of the house at the time of the arrest. Jordan testified that Boyd was not speaking to anyone in a car but was talking to her on the porch when they saw Carter drive up. Jordan also testified that the bedroom where Boyd was arrested was occupied by Joe Stafney, who was a regular cocaine user. Stafney, the great grandson of Boyd's mother, was killed prior to the trial.

Boyd's mother, Lillie Boyd, testified that she had gone to sleep in the back of the house. She got up to go to the bathroom and heard the commotion. She told Boyd to open the bedroom door. According to her, Boyd told her he did not want Carter to beat him and she assured him Carter would not beat him. Mrs. Boyd said she told Officer Tharpe that there would be some mothballs on the floor and he replied, "OK, Mrs. Boyd, I know that." Mrs. Boyd said that she had called Boyd to come to her house to watch out the front while she went to sleep.

Darrell Beacham, a friend of Boyd's who had come by to visit, testified that Boyd was standing on the sidewalk when Carter pulled up. Beacham said he went into Joe Stafney's room before Boyd and left by another door. When he came out of the bathroom, he heard the commotion.

Boyd also testified. He said his mother called him to come to her house because the dope people were out in front of her house and she could not lie down and go to sleep. In his version of what happened, he was on the porch when Darrell Beacham said, "There's Carter and them." Boyd then walked off the porch and heard Valerie Jordan say, "There's Carter and them." As he was going back into the house Carter allegedly told him, "Come here, J.W." Boyd said Boyd denied throwing anything or that he had anything in his hand. He denied having any crack cocaine or a smoking pipe. Boyd did admit to smoking cocaine in the past. Boyd also testified that Officer Carter had previously arrested him for possession of cocaine "residue or something like that there." He admitted to having $102 on his person but maintained that it was money from working doing asphalt paving. Boyd's contention was that Carter had some grudge against him which was the reason for his arrest.

"For what, man? I ain't did nothing." Boyd said he then started running.

DISCUSSION

I. WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE VERDICT ON THE

MATTER OF INTENT?

Repeatedly this Court has stated that intent to sell or distribute contraband may be established by inference from circumstantial evidence. Jowers v. State, 593 So.2d 46, 47 (Miss.1992); Jackson v. State, 580 So.2d 1217 (Miss.1991); Bryant v. State, 427 So.2d 131, 132 (Miss.1983); Hollingsworth v. State, 392 So.2d 515, 517 (Miss.1981). This Court has also stated that intent is a question of fact to be gleaned by the jury from the facts shown in each case. Shanklin v. State, 290 So.2d 625, 627 (Miss.1974).

In a series of cases this Court has wrestled with the question of intent in cases where the primary evidence supporting intent is the quantity of drugs found. See e.g., Edwards v. State, 615 So.2d 590 (Miss.1993). In the case cited by Boyd, Stringfield v. State, 588 So.2d 438 (Miss.1991), under very different circumstances from this case, the Court reversed a conviction of intent to distribute. Stringfield was found with fourteen grams of rock cocaine or the equivalent of four days' supply.

Stringfield did set out helpful commentary on what is required to show proof of possession with an intent to distribute or sell. The Court stated:

It therefore follows that proof of possession with an intent to distribute or sell should not be based solely upon surmise or suspicion. There must be evidentiary facts which will rationally produce in the minds of jurors a certainty, a conviction beyond reasonable doubt that the defendant did in actual fact intend to distribute or sell the cocaine, not that he might have such intent. It must be evidence in which a reasonable jury can sink its teeth.

588 So.2d at 440.

The Court noted that criminal intent may be shown by surrounding circumstances. Id. at 441. In the present case it was the surrounding circumstances and the eyewitness testimony of Officer Carter that showed the intent. Boyd was not found with a large quantity of crack cocaine but was seen by officer Carter engaged in conduct which was characteristic of selling drugs in a locale known for that activity. Officer Carter had made over one hundred arrests in this area. Specifically, Officer Carter observed Boyd standing beside a stationary vehicle...