Brown v. State, No. 2008-KA-00944-COA (Miss. App. 12/15/2009)

• Decision Date: 15 December 2009
• Docket Number: No. 2008-KA-00944-COA.,2008-KA-00944-COA.
• Parties: PATRICIA ANN BROWN, APPELLANT, v. STATE OF MISSISSIPPI, APPELLEE.
• Court: Mississippi Court of Appeals

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PATRICIA ANN BROWN, APPELLANT, v. STATE OF MISSISSIPPI, APPELLEE.

No. 2008-KA-00944-COA.

Court of Appeals of Mississippi.

December 15, 2009.

COURT FROM WHICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. THOMAS J. GARDNER III, DATE OF JUDGMENT: 04/10/2008.

DISPOSITION: AFFIRMED.

ATTORNEYS FOR APPELLANT: JIM WAIDE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: JOHN RICHARD YOUNG.

BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.

BARNES, J., FOR THE COURT:

¶ 1. Patricia Ann Brown was convicted by a Pontotoc County Circuit Court jury of possession of cocaine, in an amount greater than .10 gram but less than 2 grams, and sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. She now appeals this conviction and sentence. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 4, 2007, Julius Holesome, a long-time friend of Brown, was spending the night with Diane Rippley, a woman with whom he had a sexual relationship. As Holesome was married to another woman, Melanie Holesome (Melanie), the couple stayed that evening at the home of Jeff Pegues, another friend of Holesome. At approximately 4:00 a.m. the next morning, Brown appeared at Pegues's residence and woke Holesome and Rippley. Brown and Holesome proceeded to smoke crack that Brown had brought with her. Brown then asked Holesome to accompany her to Burelson Trailer Park so she could buy an "eight ball" of crack. They left together, angering Rippley. When Brown and Holesome returned, Rippley confronted Brown. Holesome asked Rippley to leave, and she complied. Angry, and riding around aimlessly, Rippley encountered the City of Pontotoc police chief, Larry Poole. She informed him of Brown's and Holesome's drug activities. Chief Poole contacted Officer Kevin Rodgers with this information; Officer Rodgers and Narcotics Agent Mike Doss proceeded to Pegues's residence.

¶ 3. At some point that morning, Brown contacted Melanie and told her that Rippley was with her husband. According to Melanie's testimony, she went to work that morning but, being upset about the situation, soon left work and went to find Holesome. She encountered Rippley on the road and followed her back to Pegues's house. After another argument ensued, Rippley left. Thus, Melanie was outside on the porch of Pegues's house when law enforcement arrived. Holesome came out of the house, and Agent Doss found two knives after a search of his person. As Holesome was a prior felon, he was arrested. The officer then called for Brown. She came out of the house, sat on the porch steps, and began to empty her pockets. Officer Rodgers noticed a white object fall from her pocket onto the ground. Melanie testified that she, too, saw the white object fall from Brown's pocket. Officer Rodgers picked the object up and, noting that it looked like crack cocaine, arrested Brown. Another small, white object was also found on the ground by Agent Doss; however, it was later discerned to be just a piece of glass. Upon obtaining permission from Pegues to search the home, Agent Doss found more cocaine inside the home. Holesome admitted to law enforcement that the drugs found inside the home were his, although he later claimed that he only said that so Pegues would not get into trouble.

¶ 4. Brown and Holesome were indicted by a Pontotoc County grand jury for possession of cocaine, in an amount greater than .10 gram but less than 2 grams, in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2005). As Holesome had numerous prior felony convictions, including two crimes of violence, he was charged under Mississippi Code Annotated section 99-19-83 (Rev. 2007) as a habitual offender, which carries a maximum sentence of life imprisonment. However, the indictment only listed two prior non-violent felony convictions for Brown. Therefore, she was only charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.. 2007), which carries an enhanced penalty of the maximum sentence of the charged crime.¹ At the arraignment on June 29, 2007, both Brown and Holesome pleaded not guilty.

¶ 5. On December 12, 2007, the State moved to amend the indictment to delete the habitual offender language as it related to Holesome, and he changed his plea to guilty. The court accepted Holesome's plea to the amended indictment and sentenced him to eight years in the custody of the MDOC, with one year suspended and one year of post-release supervision. That same day, the indictment was also amended, in open court proceedings, to change the habitual offender statute against Brown from section 99-19-81 to section 99-19-83. This amendment was due to the fact that the State discovered, after Brown's initial indictment, that she had a prior conviction for armed robbery, a crime of violence, for which she had been sentenced to twenty years in the custody of the MDOC.² Consequently, the amendment enhanced Brown's possible maximum sentence for the current charge from eight years to mandatory life imprisonment without eligibility for parole or probation.³

¶ 6. On March 10, 2008, Brown filed two motions in limine to exclude the evidence logs and crime lab reports, as they included references to the other cocaine found inside the home, not just the rock of cocaine which fell from Brown's pocket. At a hearing on the motions, the circuit court judge denied Brown's motions to exclude the evidence logs and lab results, but noted that the testimony only attributed to Brown the "rock" of cocaine that fell from her pocket. However, after the State argued that it might be necessary to refer to the evidence of the other cocaine in order to tell a complete story of what happened, the court stated, "I suppose we'll have to see how it unravels. . . . ."

¶ 7. Brown was found guilty after a jury trial on April 9, 2008. The following day, a hearing was held on Brown's habitual offender status. The court found that Brown had adequate notice of the change to the indictment and that the elements of section 99-19-83 were met; therefore, Brown was sentenced to life imprisonment in the custody of the MDOC without eligibility for parole or probation. On April 17, 2008, Brown's trial counsel filed a motion for a judgment of acquittal notwithstanding the verdict or, alternatively, for a new trial. The court denied the motion on April 30, 2008.⁴ Brown, represented by different counsel, now appeals her conviction and sentence.

I. Whether the indictment was insufficient to notify Brown of the nature of the charge.

¶ 8. Brown claims that, as the indictment failed to distinguish between the cocaine attributable to Brown and the cocaine attributable to Holesome, it was insufficient to notify Brown of the charge against her. "The sufficiency of an indictment is a question of law that affords this Court a broad standard of review." Gordon v. State, 977 So. 2d 420, 429 (¶24) (Miss. Ct. App. 2008) (citing Steen v. State, 873 So. 2d 155, 161 (¶21) (Miss. Ct. App. 2004)). The primary purpose of an indictment "is to inform the defendant of the charges against him so as to allow him to prepare an adequate defense." Id. (citing Evans v. State, 916 So. 2d 550, 551(¶5) (Miss. Ct. App. 2005)).

¶ However, Brown never objected to the form of the indictment prior to or during trial. "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. . . ." Miss. Code Ann. § 99-7-21 (Rev. 2007). "Further, the Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal `absent a showing of cause and actual prejudice.'" Baker v. State, 930 So. 2d 399, 404-05 (¶9) (Miss. Ct. App. 2005) (quoting Brooks v. State, 573 So. 2d 1350, 1353 (Miss. 1990)). As we noted in Baker, "[o]ur courts have identified two instances where deficiencies are deemed jurisdictional: where `the indictment fails to charge a necessary element of a crime,' and where `there exists no subject matter jurisdiction.'" Id. (quoting Banana v. State, 635 So. 2d 851, 853 (Miss. 1994)). In the case before us, Brown has neither alleged jurisdictional defect in the indictment, nor has she identified any "actual prejudice" has suffered as a result of any non-jurisdictional defect.⁵ Accordingly, her claim may not be raised for the first time in this appeal.

II. Whether Brown's trial was fundamentally unfair and a violation of her Fourteenth Amendment right to Due Process based upon the prosecutor's misconduct in presenting inadmissible and prejudicial evidence.

¶ 9. Brown alleges that prosecutorial misconduct resulted in her receiving prejudicial and unfair treatment at trial. When presented with an allegation of prosecutorial misconduct, this Court will only reverse if such conduct "endangers the fairness of a trial and the impartial administration of justice[.]" Jackson v. State, 1 So. 3d 921, 928 (¶19) (Miss. Ct. App. 2008) (quoting Goodin v. State, 787 So. 2d 639, 653 (¶41) (Miss. 2001)). Although defense counsel in this case never made a motion for mistrial, if there is an error in trial proceedings which results "in substantial and irreparable prejudice to the defendant's case[,]" the circuit court must declare a mistrial. Smith v. State, 989 So. 2d 973, 985 (¶46) (Miss. Ct. App. 2008) (quoting Parks v. State, 930 So. 2d 383, 386 (¶8) (Miss. 2006)). "[T]he [circuit court] judge is permitted considerable discretion in determining whether a mistrial is warranted because the judge is best positioned to measure the prejudicial effect." Id. Therefore, we will examine this issue to determine whether...