Davis v. State, 97-KA-00458-SCT.

• Decision Date: 10 December 1998
• Docket Number: No. 97-KA-00458-SCT.,97-KA-00458-SCT.
• Citation: 724 So.2d 342
• Parties: Melissa DAVIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

724 So.2d 342

Melissa DAVIS v. STATE of Mississippi.

No. 97-KA-00458-SCT.

Supreme Court of Mississippi.

December 10, 1998.

M.A. Bass, Jr., Hazlehurst, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

Before PRATHER, C.J., BANKS and WALLER, JJ.

WALLER, Justice, for the Court:

INTRODUCTION

¶ 1. Melissa Davis was indicted for the sale of two rocks of crack cocaine within 1,500 feet of a church on March 7, 1997. Davis went to trial before a jury in Copiah County Circuit Court on March 25, 1997. On that day she was found guilty and sentenced to sixty years in prison. Davis's motion for a JNOV or in the alternative for a new trial was denied on April 4, 1997. Aggrieved, Davis filed a timely motion to appeal listing two issues:

I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTIONS FOR DIRECTED VERDICT AT THE END OF THE STATE'S CASE AND AT THE END OF THE DEFENDANT'S CASE; AND, THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE APPELLANT'S MOTION FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL, BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS THE RESULT OF BIAS, PREJUDICE AND PASSION.

II. THE SENTENCE OF SIXTY YEARS WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS CONSTITUTES A SENTENCE OF LIFE IN PRISON AND IS CRUEL UNUSUAL PUNISHMENT.

FACTS OF THE CASE

¶ 2. On October 3, 1996, Ron Crew, Leigh Harvey and John Whitaker, officers with the Hazlehurst, Mississippi Police Department, met with a confidential informant, Sabrina Walker, to set up a controlled crack cocaine buy from Melissa Davis. Walker was outfitted with an audio transmitter and given an unmarked police car equipped with a video recorder. Walker was searched and given $40.00 in police cash with which to buy cocaine.

¶ 3. Walker left her meeting with the police and drove to Mac's North End Store, a Hazlehurst business, and looked for Davis. At Mac's North End Store, Walker asked an unidentified man in the parking lot for Davis. Davis came to her car and Walker asked if she (Davis) had anything. Davis told Walker to "pull the car up." Walker asked Davis for a forty. Davis went to some bushes and returned to the car with two plastic bags, each containing a single rock. Walker gave Davis $40.00 in police cash, left Mac's North End Store and drove away to meet with the police.

¶ 4. Walker gave the police the two bags and was again searched by Officer Harvey. The two rocks were sent to the Mississippi Crime Lab where they were tested and identified as cocaine. Officer Ron Crew testified that he measured the distance from Mac's North End Store to Damascus Church. The distance from the place of sale to the church building was 702 feet.

¶ 5. After deliberations, the jury returned its verdict, finding Melissa Davis guilty of selling cocaine within 1,500 feet of a church. The trial judge sentenced her to the maximum of thirty years for the sale, which when doubled because of the proximity of the church building, resulted in a total sentence of sixty years in the custody of the Mississippi Department of Corrections.

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTIONS FOR DIRECTED VERDICT AT THE END OF THE STATE'S CASE AND AT THE END OF THE DEFENDANT'S CASE; AND, THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE APPELLANT'S MOTION FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL, BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS THE RESULT OF BIAS, PREJUDICE AND PASSION

¶ 6. In the case sub judice, there is more than enough evidence to support the trial court's denial of Davis's motions for directed verdict and JNOV/new trial. The testimony of the three police officers, the Mississippi Crime Lab expert and the informant, Sabrina Walker, together with the audio and video tapes of the cocaine buy, provide enough evidence so that reasonable and fair-minded jurors could find Davis guilty. Based on the same evidence in the record, the trial judge did not abuse his discretion when he denied Davis's motions for JNOV/ new trial. Morgan v. State, 703 So.2d 832, 840 (Miss.1997) (citing Esparaza v. State, 595 So.2d 418 (Miss.1992)).

¶ 7. For these reasons, this assignment is without merit.

II. THE SENTENCE OF SIXTY YEARS WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS CONSTITUTES A SENTENCE OF LIFE IN PRISON AND IS CRUEL UNUSUAL PUNISHMENT.

¶ 8. Davis urges that, even if guilty as charged, she was subjected to a sentence which was so excessive given the nature and details of her crime, as to be cruel and inhuman and disproportionate when viewed against similar sentences given for like offenses. Her crime on October 3, 1996, the only one for which she was convicted and sentenced in this proceeding, was the sale of two rocks of crack cocaine, two-tenths of a gram (.0071 ounces), for forty dollars. For this she received the maximum sentence which she could receive under Miss.Code Ann. § 41-29-139(b)(1) (1993), which was enhanced, indeed doubled, under Miss.Code Ann. § 41-29-142(1) because the sale took place a little over 700 feet from a church building. By the application of the maximum sentence allowed under both statutes, neither of which carry a mandatory sentence, Davis's penalty for the offense is sixty years in prison. This mother of a small child will not be eligible for parole before the year 2043, when she will be seventy-six years old, and therefore has received in essence a life sentence without parole.

¶ 9. It is unfortunate that we have little before us to explain this sentence. Davis chose not to offer evidence in her defense. While she acknowledged to the Judge that this was not her first time before him, we are not told how many prior offenses are in her history or the nature or punishment given for her earlier transgression or transgressions. It is also significant to note that whatever prior offenses existed, she was not tried as a repeat offender.¹

¶ 10. At the time of sentencing, the trial court gave no explanation, and neither he nor we have the benefit of a pre-sentencing investigation. While the trial judge has, within the limits of the sentencing statutes, broad discretion as to the sentence given a particular offender, Hoops v. State, 681 So.2d 521, 537 (Miss.1996), and although the decision to call for a pre-sentencing investigation likewise lies within his discretion, URCCC 11.02; Hart v. State, 639 So.2d 1313, 1320 (Miss.1994), one cannot but be concerned about the severity of the sentence in this case in the absence of anything appearing in the record which reflects egregious circumstances.

¶ 11. We recognize it is properly within the purview of the Legislature to determine the range of sentences, enunciating our citizens' determination of the social impact of harmful behavior. We equally well recognize that our circuit judges, present throughout criminal trials and observing in detail the testimony and evidence, are uniquely suited to apply a range of sentences to specific offenses. Justice Robertson in his concurrence in Presley v. State, 474 So.2d 612, 620-21 (Miss. 1985) (Robertson, J., concurring), articulated these principles to which we still adhere. The Legislative judgment of recent years to provide serious penalties for the sale of cocaine is easy to understand when we observe the effect that its wide-spread distribution has had on Mississippi as well as the nation. Occasionally however, cases come before us in which sentences may be so severe as to appear on the record inexplicable and justify remanding the matter to the trial court for further consideration.²

¶ 12. In Presley, the defendant was convicted of armed robbery as a habitual offender and was sentenced to a term of forty years in prison without the possibility of parole. His crime was stealing some steaks and as he escaped displaying a knife. A pre-sentencing hearing was conducted but was found to be inadequate, even though we observed in Presley, as here, the deficiency was not the fault of the trial judge who gave the defendant an opportunity to be heard. There, reviewing the evidence and considering that there had been only an inadequate pre-sentencing hearing, we remanded the case for re-sentencing.

¶ 13. In McGilvery v. State, 497 So.2d 67 (Miss.1986), the defendant was given a severe sentence without explanation by the trial judge and he appealed, pointing out that his co-defendant, who pled guilty without trial, had received a much lighter punishment. Recognizing that the circuit judge may have had an excellent reason for McGilvery's sentence which had not been articulated, we remanded for further consideration of the sentence, emphasizing the absolute right of one accused of a crime to a jury trial and reminding the bench and bar that the sentence must not include a penalty for exercising that right.

¶ 14. Even as to those circumstances for which the statutes provide mandatory sentences, the punishment must be weighed against the prohibition imposed in the Eighth Amendment to the United States Constitution against cruel and unusual punishment. In Clowers v. State, 522 So.2d 762 (Miss. 1988), the defendant was convicted of uttering a forged $250 check, and although finding that he was an habitual offender, the trial court sentenced Clowers to a term of five years, in spite of the controlling statute which mandated a sentence of fifteen years without possibility of parole. In doing so, the trial judge found that the mandated sentence would be cruel and unusual under the facts. The State objected and cross-appealed, and we upheld the trial judge's sentence, relying in part on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and its declaration that a criminal sentence must not be disproportionate to the crime for which the defendant is being sentenced.

¶ 15. In summary, under the facts of this case and given the lack of justification for the sentence on the face of the record on appeal, it is appropriate that...