Boyington v. State, 52000
| Decision Date | 10 September 1980 |
| Docket Number | No. 52000,52000 |
| Citation | 389 So.2d 485 |
| Parties | Dale BOYINGTON, or Dale Boykin v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lester F. Williamson, Jr., Hamilton & Williamson, Meridian, for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SUGG, BROOM and LEE, JJ.
LEE, Justice, for the Court:
Dale Boyington, or Dale Boykin, was convicted in the Circuit Court of Newton County on a charge of selling marijuana in a quantity less than one (1) kilogram, and was sentenced to a term of eight (8) years in the state penitentiary. He has appealed and assigned seven (7) errors in the trial below.
The State called two (2) witnesses: Bill Marshall, an agent for the Mississippi Bureau of Narcotics, and Mickey Williams, a toxicologist for the Mississippi State Crime Laboratory. The appellant rested without presenting any evidence.
The evidence for the State, which was undisputed, reflected that on April 26, 1978, Bill Marshall met with two (2) informants in the Chunky community of Newton County for the purpose of making a marijuana buy. He was taken to a residence about 2:00 in the afternoon, where appellant arrived and was introduced to Agent Marshall. Appellant went into the residence and returned with a brown paper bag containing approximately seven (7) ounces of marijuana. Appellant agreed to sell the marijuana to Agent Marshall for twenty dollars ($20.00) per ounce. Marshall requested an additional three (3) ounces, which were procured by appellant from the residence, and Marshall paid him two hundred dollars ($200.00). After obtaining the contraband from appellant, Marshall delivered it to Mickey Williams, toxicologist at the Mississippi State Crime Laboratory. Williams testified for the State and identified the substance as marijuana.
Appellant first contends that there was prosecutorial interference with his right to counsel, which requires the dismissal of the indictment.
An evidentiary hearing was held on the motion to dismiss, and Agent Robert Pierce testified that, after appellant's indictment, he was apprehended in the State of Pennsylvania. Pierce went there for the purpose of returning him to Mississippi for prosecution. Appellant waived extradition and, en route to Mississippi, stated to Pierce he would like to "help himself." Pierce told appellant that, if he would help the Bureau and serve as an informant, he would recommend probation for him. Appellant made bond, and he worked as an undercover informant with the Mississippi Narcotics Bureau for approximately six (6) months, developing ten (10) cases during that time.
The Newton County Circuit Court and the District Attorney's Office knew that appellant was working in such capacity. Appellant was arraigned on March 19, 1979, at which time he requested, and the court appointed, an attorney to represent him. The court, being aware of the defendant's work with the Mississippi Bureau of Narcotics, granted a continuance of the case on March 26, 1979, until the August 1979 Term of court. Prior to that term, Agent Pierce requested the district attorney to recommend that appellant be placed on probation and the district attorney agreed to make the recommendation. However, the circuit judge declined to accept the recommendation and, as next best, the district attorney recommended a sentence of two (2) years in the state penitentiary, which the trial judge agreed to accept. The appellant declined that sentence and requested that his court-appointed attorney be discharged. His family then employed other attorneys to represent him.
At the evidentiary hearing, appellant testified that he agreed to work with the Mississippi Bureau of Narcotics only after receiving a promise of leniency and probation from Agent Pierce. Also, that Pierce led him to believe that he could get out of the charge, if he worked for the Bureau of Narcotics, and that Pierce told him there was no need to pay for a lawyer because the court would appoint one for him. Pierce did not rebut that testimony. Appellant contends there was prosecutorial interference with his right to counsel which denied him effective counsel, and he complains that his attorney was ineffective because he failed to obtain probation for him. Appellant cites People v. Mason, 97 Misc.2d 706, 411 N.Y.S.2d 970 (1978); Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (Mass.1977); People v. Moore, 57 Cal.App.3d 437, 129 Cal.Rptr. 279 (1976); and United States v. Morrison, 602 F.2d 529 (3d Cir. 1979). However, the above cases deal with the willful interference with a defendant's right to counsel and are not authority for the present question.
We can understand how appellant honestly believed he would receive probation for his cooperation with the State as an undercover informant. It is unfortunate that the actions of the agent and district attorney, upon which appellant relied, did not result in what he understood would occur upon entry of a guilty plea (probation). However, this assignment is not well taken.
Appellant contends that his employment as an undercover agent, after his arrest, violated his Thirteenth Amendment rights and 42 U.S.C. § 1994 (1974), the anti-peonage statute.
As stated before, appellant freely and voluntarily entered into the arrangement with the Bureau of Narcotics, the agent did recommend to the district attorney that appellant be placed on probation, the district attorney made the same recommendation to the trial judge, which was not accepted by him. Cases cited by appellant are not authority on this point, and the argument is not persuasive.
Appellant insists that the trial court erred in failing to grant his continuance, after employing another attorney, and in setting his case on Friday for the following Monday, since his attorney could not properly prepare his defense in that time period.
Six (6) days prior to the trial, appellant discharged his court-appointed attorney and employed another attorney. At the hearing on the suppression motion, appellant requested a continuance in order that his new attorney could have additional time to prepare his defense. The following discussion was held between Mr. Hamilton, new counsel for appellant, and the trial judge, concerning the continuance:
"BY MR. HAMILTON:
. . . I understand we are set for trial first out Monday morning. Am I correct?
Mr. Hamilton, I am going to give you a little leeway. You have asked for a continuance.
It is noted that the court offered to give appellant's attorney additional time to prepare his case, but the attorney told the court that Monday would be fine with him to try the case. There is no merit in this assignment. The discussion on Assignments I and III cover and dispose of Assignment VI.
Appellant argues that the trial court committed reversible error in discussing the disposition of appellant's case with the district attorney in the absence of the defendant and without his knowledge.
The narcotics agent and the district attorney did no more than the appellant had requested that they do in recommending to the trial judge that he place the appellant on probation. This did not constitute one of those crucial areas of a trial where the defendant is entitled to be present at all times. Furthermore, the point was not raised in, or presented to, the trial court for consideration, and was not preserved for error in this Court. Howell v. State, 354 So.2d 1124 (Miss.1978); Ponder v. State, 335 So.2d 885 (Miss.1976).
Appellant contends that the action of the trial judge in offering to accept the recommendation of two years in the penitentiary, and, after conviction, sentencing the appellant to eight (8) years violated his constitutional right to a jury trial.
There was no violation of appellant's constitutional right to a jury trial. The trial judge offered to accept a two-year recommendation and he did not indicate that, if appellant demanded a jury trial, and was convicted, he would impose a more severe sentence. There is no basis here for the contention that the court did not consider legitimate factors in pronouncing the sentence and that the heavier sentence resulted because appellant demanded a jury trial. See Fermo v. State, 370 So.2d 930 (Miss.1979). 1
However, we note that after appellant had discharged his court-appointed attorney and his family had employed other attorneys (Hamilton and Williamson) to represent him on the trial, when the suppression hearing was held, the following discussion occurred between Attorney Hamilton and the trial judge:
"BY THE COURT:
Now, Mr. Hamilton, when was this Defendant arraigned and indicted, August or March?
BY MR. HAMILTON:
March the 19th. He was indicted in August.
Upon being presented to the Court and being questioned, I established he was an indigent person, and I appointed him counsel, Mr. McMillan who represented him at that term of Court, and appeared at this term of Court to represent him. The case is set for call today and trial next week. Mr. McMillan announced to me first thing this morning that you had been employed. Now, I don't like this, on these Court appointments. I am not going to permit this Defendant, or any other Defendant, to come into this Courtroom and ask for a Court appointed attorney and then turn around and hire an attorney. Mr. McMillan has represented this fellow, and he is going to be paid, and the county is not going to pay it. If it should develop this Defendant has lied to me as a reason for appointment, I am going to be hard to get along with. 2
BY MR. HAMILTON:
Yes, sir, I understand.
What do I normally allow Court appointed attorneys as fee for appointment if there is disposition before trial?
BY THE COURT REPORTER:
$100.00
That will be the fee he will...
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