Cork v. State

• Decision Date: 16 December 2021
• Docket Number: NO. 2020-KA-00060-SCT,2020-KA-00060-SCT
• Citation: 329 So.3d 1183
• Parties: Antwoine CORK v. STATE of Mississippi
• Court: Mississippi Supreme Court

329 So.3d 1183

Antwoine CORK

v.STATE of Mississippi

NO. 2020-KA-00060-SCT

Supreme Court of Mississippi.

December 16, 2021

Rehearing Denied March 17, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRITTNEY S. EAKINS

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. Antwoine Cork sold cocaine to a police informant three times. A Lowndes County jury convicted him of three counts of sale of a controlled substance. Pursuant to the habitual and subsequent offender sentencing enhancements, the trial judge sentenced him to sixty years for each of the three convictions to run concurrently. There being no reversible error, we affirm.

FACTS

¶2. On July 23, 2009, Donald Richardson, an officer with the Columbus Police Department's Narcotics Division, arranged a purchase of narcotics with confidential informant Cathy Pass. Officer Richardson met with Pass in a parking lot and conducted a search for drugs by asking her to shake out her bra, pull out her pockets, and remove her shoes. Officer Richardson then wired Pass with video equipment in a purse for her to carry. He gave her a phone and $40 before dropping her off one block away from the target location. Pass went to a house and inquired about purchasing cocaine. The planned seller, Eli Orr, did not have drugs, so Pass dealt with a person she identified as "Twoine."

¶3. During her first visit to the house, Pass purchased $20 worth of cocaine. She then called Officer Richardson and asked whether she could make a second purchase, which she did for the same amount. Pass returned to Officer Richardson's vehicle and gave him two pieces of cocaine. Officer Richardson then gave Pass another $20, and she made a third purchase of cocaine.

¶4. Video from Pass's wired video equipment shows what appears to be something changing hands between Pass and one person, whom she identified as "Twoine, " at the house. She testified that the basis of her identification was that she had seen "Twoine" twice before and that he once sold drugs to someone she was with. Officer Richardson testified that he "freeze framed" the video to confirm the identity of the person Pass identified as selling the cocaine. He also testified that he compared the freeze frames to CPD's mugshot files.

¶5. On April 29, 2010, the grand jury indicted Cork on three counts of the unlawful sale of a controlled substance in violation of Mississippi Code Section 41-29-139 (Rev. 2018). He was arrested and arraigned on May 27, 2010. He filed an affidavit of indigency and asked the court to appoint him counsel. The trial court appointed Donna Smith to represent him.

¶6. Cork's trial was set for August 26, 2010, and on August 25, 2010, the State moved to amend the indictment to reflect Cork's habitual offender status under Mississippi Code Section 99-19-81 (Rev. 2020), as well as his subsequent offender status under Section 41-29-147 (Rev. 2018). In support, the State offered a two-count indictment in which Cork was accused of the sale of cocaine on October 19, 2007, and on November 8, 2007, when he had just turned seventeen years old. Cork had pled guilty to both counts. On May 22, 2008, the trial court had sentenced Cork to eight years for Count 1 but placed him in the Regimented Inmate Discipline (RID) Program and retained jurisdiction for the period of one year for the purpose of resentencing Cork in the event he completed the RID program. On May 28, 2008, the trial court had issued an identical sentence for Count 2.

¶7. On August 24, 2010, the State offered Cork a plea for eight years on the three charges at issue. Smith stated that the prosecutor "came in and discussed the plea, and he ended up dropping portion – dropping part of his plea bargain, because of my client." After discussing the offer with Cork, the prosecutor told Smith the prosecution's plans to habitualize Cork. The trial court granted the motion to amend the indictment.

¶8. At the August 25, 2010, hearing, Cork asked for a continuance, indicating that his mother had retained different counsel for him and that he was not ready to start trial the next day. He could not name any attorney hired by his mother, and claims made by him that he had not spoken to his court-appointed attorney were refuted. The trial court denied Cork's motion for continuance.

¶9. Before the trial began, Cork renewed his motion for a continuance and a new attorney, stating to the court:

I still want to say, Your Honor, that I should have a right to hire me a lawyer, because I got indicted the second – the second day before grand ended, and I didn't have enough time to tell my people to arrange the money to hire me a lawyer. And this term I just came back, and me and my lawyer haven't met. I want a paid lawyer.

Not saying Ms. Donna Smith is not a good lawyer, but I would feel comfortable to have a hired lawyer to represent me, in the event – the potential that I see Ms. Donna Smith, that we had a little altercation about what was going on, and we supposed to be discussing the case, but we haven't.

We were discussing – me and her, we was just arguing, sir, and I feel that she's not trying to represent me in her best potential, and I just – don't hold anything bad against Ms. Donna Smith, I know she good at what she do, but I don't feel that – if the – the Court can give me a continuance to have me a paid attorney, sir, I will.

And I don't mean no disrespect, and thank the Lord that I could have me a lawyer, sir.

¶10. The court denied Cork's request.

¶11. The trial proceeded on August 26, 2010. The jury received instructions, but Cork's counsel did not request a confidential informant jury instruction. The jury found Cork guilty on all three counts. At sentencing, the trial court found that Cork was a habitual offender and a subsequent offender under the controlled substance laws, sentencing Cork to sixty years' imprisonment without the possibility of parole on each of the three counts, with the sentences to run concurrently.

¶12. On appeal, Cork argues: 1) his convictions for three separate counts of sale of acontrolled substance violate the prohibition against double jeopardy; 2) Cork's sentence violates the Eighth Amendment; 3) the trial court misapplied the law when sentencing Cork pursuant to Section 41-29-147 ; 4) the trial court erred by granting the State's motion to amend the indictment; 5) the trial court erred by denying Cork's motion for a continuance; 6) the trial judge should have recused; 7) Cork was denied effective assistance of counsel; 8) Cork's convictions are not supported by sufficient evidence.

Discussion

I. The multiple charges against Cork do not violate the prohibition against double jeopardy.

¶13. Cork argues that his conviction for three separate counts of the sale of cocaine based on three exchanges that occurred between the same two people in a short time frame violates the prohibition against double jeopardy. He maintains that he could only be convicted of one count because the three exchanges constitute only one offense. Cork eschews the same elements test found in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1931), and instead contends that the Court must look to the "allowable unit of prosecution" under the statute to determine whether Cork's actions constitute more than one distinct offense under Sanabria v. United States , 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (internal quotation marks omitted) (quoting United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952). In Sanabria , the defendant was indicted for violating a federal statute making it illegal to own or run an illegal gambling business. Id. at 57, 98 S.Ct. 2170. The government submitted two factual scenarios to undergird the charges that, importantly, both stemmed from a single charge in the indictment: betting on horses and running numbers. Id. at 58, 98 S.Ct. 2170. The trial court granted the defendant's motion for acquittal as to the former. Id. The government then appealed, and the question before the United States Supreme Court was whether the prohibition against double jeopardy barred a second trial on the latter theory. Id. at 64, 98 S.Ct. 2170. The government conceded that it could not retry the defendant on the horse-betting theory, but it contended that the numbers theory had been dismissed before acquittal. Id. The Sanabria Court noted that an erroneous evidentiary ruling by the trial court led to the acquittal of the defendant due to insufficient evidence to support the charge, yet it held that the acquittal on the sole charge in the indictment sufficed to extend double jeopardy protection to the defendant. Id. at 68, 98 S.Ct. 2170.

¶14. To the extent that the Sanabria Court discussed the phrase "allowable unit of prosecution," the phrase upon which Cork relies, it does so to point out that Congress defines crimes and sets the allowable unit of prosecution. Id. at 70, 98 S.Ct. 2170. The indictment charging Sanabria charged him with the single allowable unit of prosecution of participating in an illegal gambling business that engaged in both horse betting and numbers betting. When the trial court acquitted him as to the horse-betting charge, the acquittal covered the whole charge. Id. at 71, 98 S.Ct. 2170. "The Government's undisputed theory of this case is that there was a single gambling business, which engaged in both horse betting and numbers betting. With regard to this single business, participation in which is concededly only a single offense, we have no doubt that petitioner was truly acquitted." Id.

¶15. We fail to see how the single unit of prosecution portion of Sanabria applies here. The instant case is far different. Cork does not, indeed cannot on the record before us, contend that the State is attempting to charge him twice for one unit of prosecution due to the unit of prosecution's covering more than one illegal...