Fairley v. State, 2017-KA-01754-SCT
| Decision Date | 02 May 2019 |
| Docket Number | NO. 2017-KA-01754-SCT,2017-KA-01754-SCT |
| Parties | Andre Antonio FAIRLEY a/k/a Andre Fairley v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
¶1. Andre Fairley was indicted by a Harrison County grand jury for one count of possessing two or more grams, but less than ten grams of cocaine with intent to distribute, and one count of possessing more than thirty grams, but less than one kilogram, of synthetic cannabinoid, with intent to distribute. Following a jury trial at which Fairley represented himself with the aid of standby counsel, Fairley was convicted of both counts.
¶2. The trial court sentenced Fairley, a habitual offender, to twenty years for count one and five years for count two, with the sentences to be served day for day and concurrently. Fairley appeals both his convictions and sentences through appellate counsel1 and pro se, claiming numerous assignments of error.2 Finding no reversible error, we affirm Fairley's convictions and sentences.
FACTS
¶3. On May 6, 2015, federal agents with Drug Enforcement Agency (DEA) were patrolling neighborhoods in Gulfport, Mississippi, during the agency's "Violent Tracker Initiative." Agents Brian Norton, Toby Schwartz, Raphael Bailey, and Justin McLauren were dressed in full uniform and were traveling in an unmarked vehicle.
¶4. The agents stopped Fairley after he failed to stop at a stop sign. Agent Norton approached Fairley, who was in the driver's seat of his minivan. A passenger, Jermaine Jackson, was riding in the vehicle with Fairley.
¶5. When Agent Norton approached, he told Fairley why they had stopped him and asked for Fairley's driver's license and proof of insurance. Agent Norton testified that Fairley appeared nervous but that he was compliant. He said that Fairley was sweating, that his fingers were trembling, and that he was stuttering.
¶6. Fairley first handed Agent Norton his TWIC3 card rather than his driver's license. Fairley recognized his mistake and gave Agent Norton his driver's license. Fairley did not have proof of insurance. The vehicle was registered in Fairley's name.
¶7. Agent Norton asked Fairley to step to the back of his vehicle, and Fairley complied. When Fairley exited the vehicle, Agent Norton patted him down for weapons. Agent Norton asked Fairley if there were any illegal drugs or weapons on him or in his vehicle. Fairley replied, "No guns." Agent Norton again asked whether Fairley had any drugs, and Fairley said, "I have no guns in the vehicle."
¶8. According to Agent Norton, these responses from Fairley prompted Norton to ask for Fairley's consent to search the vehicle. Fairley consented and said, "No problem, I don't have any guns."
¶9. When Agent Norton searched Fairley's vehicle, he opened a sunglasses case and found a clear plastic bag with ten individual bags of a powder substance that Agent Norton believed was cocaine. Agent Norton next found a bag in the vehicle's back seat that contained a large amount of what he believed was "spice," or synthetic marijuana.
¶10. Marie Prince, a forensic chemist with the DEA, testified that she tested both substances and confirmed that they contained 2.3 grams of cocaine and 668.5 grams of synthetic cannabinoids, "AB-FUBINACA."
¶11. After discovering the drugs, Agent Norton placed Fairley and Jackson under arrest, and he advised them of their Miranda rights.4 Fairley said, Agent Norton said that Fairley clarified at the scene of the arrest that the cocaine was his, and he asked Agent Norton to let Jackson go because Jackson had nothing to do with the drugs. Agent Norton said he learned that Jackson was on probation, so he thought Fairley might be taking up for him. When Agent Norton asked Fairley more details about the cocaine, Fairley described the cocaine and its location.
¶12. The agents transported Fairley to the Gulfport Police Department, where Agent Norton and Agent Schwartz interviewed Fairley. During the interview, Fairley asked Agent Norton how he could go home that night. Agent Norton explained to Fairley that he and Agent Schwartz were with the DEA and that they were merely assisting the Gulfport Police Department. Agent Norton, however, told Fairley that if he provided some information, his cooperation might be taken into consideration.
¶13. According to trial testimony, Fairley maintained throughout the interview that the drugs were his. Fairley said that, because he had been laid off from his offshore job for nine months, he had been supplementing his income by selling cocaine. He said that, every week during those nine months, he would purchase half an ounce of cocaine, repackage it in units of either two-tenths or four-tenths of a gram, and sell the units for either twenty dollars or forty dollars.
¶14. As to the synthetic marijuana, Fairley purportedly told the agents that he had loaned a friend some money to pay his rent. When the friend could not repay the money, the friend gave Fairley some spice instead. Fairley said that he had been looking for someone who could sell the spice but that he was having trouble finding a seller.
¶15. According to the agents, Fairley refused to name his suppliers. Agent Norton said that Fairley wanted a guarantee that he would be released in exchange for his cooperation. When Agent Norton said he could not guarantee anything, Fairley ended the interview.
¶16. Agent Norton testified that he used his personal recorder to record the interview with Fairley. But because a number of people were arrested during the DEA's Violent Tracker Initiative, he inadvertently taped over Fairley's interview.
¶17. Agent Schwartz confirmed Agent Norton's account of what happened. Both agents testified that as a matter of DEA policy, all DEA interviews are conducted with two officers. This policy exists to protect the facts and to ensure that the interviewee's statements are not misinterpreted or misremembered. Agent Schwartz's account of Fairley's interview was the same as Agent Norton's; Agent Schwartz testified that taping over Fairley's interview had been accidental.
¶18. Fairley represented himself throughout trial. He called no witnesses and did not testify. Fairley cross-examined Agent Norton and Agent Schwartz about the evidence in the case. Specifically, Fairley questioned the agents about an individual named Willie Lee Keller.
¶19. The agents testified that "Willie Lee Keller" was the file name for all of the arrests during the Violent Tracker Initiative. Agent Adam Gibbons worked for the Gulfport Police Department but was assigned to the DEA task force. Agent Gibbons explained that Keller was a cocaine dealer who had been investigated by the task force since 2011. Agent Gibbons described the Keller file as a "filing cabinet" with many folders. "Andre Fairley [was] a folder in the Keller file." Agent Schwartz described the file name as a "book with many chapters."
¶20. All of the agents who testified said that Fairley was not being tried for any of Keller's actions. They said that the file name should have been redacted from the documents associated with Fairley's case but that it inadvertently appeared on a number of pages in Fairley's file.
¶21. Fairley also argued that none of the agents had seized the sunglasses case in which the cocaine was found. Fairley claimed that the photographs that showed the drugs in his vehicle had been taken at the police department and not at the scene of the traffic stop, implying that the drugs had been planted. Alternatively, Fairley implied that he was being prosecuted because he refused to work with the DEA agents.
¶22. Norton testified that he did not seize the sunglasses case, because it lacked evidentiary value. He said that the drugs were the only material evidence in the case.
¶23. Agent Gibbons testified that the photographs were taken at the scene of the traffic stop, and he told the jury that he recognized a house in one of the photographs. In response to a question asked by Fairley during cross-examination about a "parking line" depicted in one of the photographs, Agent Gibbons said that the white line is a fog line or road line, not a parking-space line. Agent Gibbons said the parking-space lines at the Gulfport Police Department are yellow, not white.
¶24. In response to Fairley's suggestion that he was being set up or prosecuted because he refused to cooperate, Agent Schwartz said that Fairley was arrested because drugs were found in his vehicle after a routine traffic stop. The arrest was not personal, and Agent Schwartz did not know who Fairley was before that day.
¶25. When questioned about why Fairley was not issued a ticket for running a stop sign, Agent Norton testified that he did not issue a traffic citation because Fairley was compliant, and he did not want to "kick a horse while it's down." Agent Norton said that he had to have Fairley's vehicle moved to get it out of the roadway. He had two options: have the vehicle towed or have an agent drive it. Agent Norton said that Fairley consented to one of the agents driving the vehicle. Both Agent Schwartz and Agent Gibbons agreed that the decision not to issue a traffic citation was not unusual. Agent Gibbons also said that a suspect is less likely to cooperate later if they have to pay to get their car out of the impound lot.
¶26. The jury found Fairley guilty of possessing cocaine and synthetic marijuana with intent to distribute. This appeal followed.
DISCUSSION
I. Whether the trial court erred by admitting Rule 404(b) evidence without conducting an on-the-record Rule 403 analysis or providing a limiting jury instruction.
¶27. At trial, the State sought to introduce evidence that Fairley had been convicted in 1994 of possession of marijuana with...
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