Fisher v. State, 2021-KA-00828-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtRANDOLPH, CHIEF JUSTICE
PartiesROBERT FISHER, JR. v. STATE OF MISSISSIPPI
Docket Number2021-KA-00828-SCT
Decision Date17 November 2022

ROBERT FISHER, JR.
v.
STATE OF MISSISSIPPI

No. 2021-KA-00828-SCT

Supreme Court of Mississippi

November 17, 2022


DATE OF JUDGMENT: 04/19/2021

YAZOO COUNTY CIRCUIT COURT HON. BARRY W. FORD JUDGE

TRIAL COURT ATTORNEYS: SHARON ALGENA SPENCER TIMOTHY CRAIG HOWARD AKILLIE MALONE OLIVER WINSTON JAMES THOMPSON, III

ATTORNEY FOR APPELLANT: LOUWLYNN VANZETTA WILLIAMS

ATTORNEY FOR APPELLEE: ALLISON KAY HARTMAN

DISTRICT ATTORNEY: AKILLIE MALONE OLIVER

BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

RANDOLPH, CHIEF JUSTICE

¶1. Robert Fisher appeals his convictions for several drug possession and trafficking charges and his sentence as a habitual offender by the Yazoo County Circuit Court. Fisher argues that his right to testify was violated, that officers unlawfully searched a storage unit he was leasing, and that the trial judge sentenced him as a habitual offender without sufficient evidence.

FACTUAL AND PROCEDURAL HISTORY

¶2. On Monday, May 20, 2019, Robert Fisher placed approximately thirty-one kilograms of marijuana in a storage unit he was leasing at Davis Mini Storage in Yazoo City. Davis

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Mini Storage is owned by Tim Davis and consists of approximately 450 units divided among eighteen buildings, some climate controlled and others not. The unit leased by Fisher was located in the third climate-controlled building, which housed twenty to thirty units.

¶3. On Wednesday, May 22, 2019, officers from the Yazoo County Sheriff's Office were dispatched to Davis Mini Storage after Davis received a complaint from a customer about a strong odor of marijuana in the third climate-controlled building. Deputy Ferrell, one of the officers dispatched to the scene, stated that once he entered Building 3, he smelled the distinctive odor of what he knew to be marijuana based on his knowledge, training, and experience. Davis gave the officers permission to search the common areas in Building 3. The officers walked the hallways and noticed that the smell was strongest among one set of units but would weaken as they moved beyond those units. According to Ferrell, the blowing of the air conditioner in the climate-controlled building made it difficult to pinpoint the source of the smell. Davis therefore provided a ladder to allow Ferrell to rise above the stream of blowing air and pinpoint the unit.

¶4. Ferrell climbed the ladder and determined the odor was coming from Unit 404. From that vantage point, he could see several large bundles in black trash bags.[1] Davis informed the officers that Fisher was leasing Unit 404. Investigator Gann subsequently obtained a search warrant for Unit 404, and the officers executed the warrant, opened the unit, and confirmed that the bags contained marijuana.

¶5. Gann then obtained an arrest warrant for Fisher and a search warrant for Fisher's

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home. There, officers found marijuana, hydromorphone tablets, amphetamine tablets, methamphetamine, cocaine, and several firearms. Fisher was taken into custody.

¶6. At his trial, Fisher offered no objections to the admission of the marijuana seized from the storage unit. After the State rested its case, Fisher rested his case and did not testify. The jury returned guilty verdicts for all but one count. Fisher was convicted of two counts of possessing marijuana, one count of aggravated trafficking of cocaine, one count of aggravated trafficking of schedule II methamphetamine, one count of trafficking amphetamine, and one count of trafficking hydromorphone.

¶7. At sentencing, the judge found that Fisher was a habitual offender under Mississippi Code Section 99-19-81. As such, the judge was required either to sentence Fisher to the maximum sentence for each of his felony convictions or to note his reasons for deviating from the maximum sentence. After listing several mitigating circumstances, the judge deviated from the maximum sentence and instead sentenced Fisher to the mandatory minimum sentence required for each of his two aggravated trafficking convictions.[2] Fisher was sentenced to two consecutive twenty-five year terms without possibility of reduction, probation, or parole. The sentences for his other convictions were to be served concurrently with the two twenty-five year sentences.

¶8. The trial court denied Fisher's motions for a new trial and judgment notwithstanding the verdict.

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STATEMENT OF THE ISSUES

¶9. Fisher presents three issues: (1) whether he was deprived of his constitutional right to testify in his own defense, (2) whether looking into a ceilingless storage unit from a ladder constituted an unlawful search, and (3) whether the trial court erred by sentencing him as a habitual offender.

STANDARD OF REVIEW

¶10. Fisher raises all of his arguments for the first time on appeal. "Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred." Swinney v. State, 241 So.3d 599, 605 (Miss. 2018) (internal quotation marks omitted) (quoting Parker v. State, 30 So.3d 1222, 1227 (Miss. 2010)).

¶11. The plain error doctrine permits this Court to "recognize obvious error which was not properly raised by the defendant and which affects a defendant's 'fundamental, substantive right.'" Shinstock v. State, 220 So.3d 967, 970 (Miss. 2017) (internal quotation marks omitted) (quoting Conners v. State, 92 So.3d 676, 682 (Miss. 2012)). "[T]o 'determine if plain error has occurred, we must determine if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the error has prejudiced the outcome of the trial.'" Green v. State, 183 So.3d 28, 30 (Miss. 2016) (second alteration in original) (quoting Neal v. State, 15 So.3d 388, 403 (Miss. 2009)). Additionally, "[f]or the plain-error doctrine to apply, there must have been 'an error that resulted in a manifest miscarriage of justice or "seriously affect[s] the fairness, integrity or public reputation of

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judicial proceedings."'" Hall v. State, 201 So.3d 424, 428 (Miss. 2016) (second alteration in original) (quoting Brown v. State, 995 So.2d 698, 703 (Miss. 2008)).

DISCUSSION

I. Whether Fisher was denied the right to testify on his own behalf.

¶12. Fisher argues that the trial court failed to protect his constitutional right to testify by not questioning his failure to testify or notifying him of his right to make the decision about whether to testify. As Fisher correctly notes, the record fails to reflect such an inquiry.

¶13. The right to testify in one's own defense in a criminal proceeding is a constitutional right secured by the Fifth and Sixth Amendments of the United States Constitution and applied against the states through the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) ("The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony[.]"). Article 3, section 26, of the Mississippi Constitution likewise "gives an accused the right to testify in his own behalf." Culberson v. State, 412 So.2d 1184, 1186 (Miss. 1982). Moreover, "the denial of the right of an accused to testify is a violation of his constitutional right regardless of whether the denial stems from the refusal of the court to let a defendant testify . . . or whether the denial stems from the failure of the accused's counsel to permit him to testify." Id. (citation omitted). And, while the United States Supreme Court has not specifically addressed what role a court should play in protecting a defendant's right to testify, we have.

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¶14. In Culberson, we advised trial courts that "in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify." Id. We have noted since Culberson, however, that this was merely a strong suggestion and not a mandatory directive. Shelton v. State, 445 So.2d 844, 847 (Miss. 1984). "[I]nasmuch as [the defendant] was represented by counsel throughout the proceeding and the record does not reflect any desire by [the defendant] to testify, the failure of the trial court to advise [the defendant] of his right to testify does not constitute reversible error." Id. As in Shelton, Fisher was represented by counsel throughout the proceeding and, as Fisher concedes, the record is silent as to whether he desired to testify or knew of his right to testify. Accordingly, the failure of the trial court to advise Fisher of his right to testify is not reversible error.

¶15. The cases Fisher relies on in his brief to this Court are distinguishable. In Dizon v. State, 749 So.2d 996, 1000-01 (Miss. 1999), this Court reversed a conviction due, in part, to the trial court's failure to make a record regarding the defendant's decision not to testify. But Dizon, unlike Fisher, expressed his desire to testify in numerous instances. Id. This Court noted, "[t]rial counsel stated during opening statements that Dizon would testify[,]" and, when he did not testify, that "in itself should have been enough to trigger an inquiry by the judge as to whether or not it had been explained to Dizon that he had a constitutional right to testify and whether or not he had waived that right." Id. Additionally, pursuant to an order from this Court, the trial court conducted a separate evidentiary hearing on whether Dizon was denied his constitutional right to testify. Id. at 998. At that hearing, trial counsel was

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uncertain whether Dizon had been informed of his right to testify. Id. at 1000. Meanwhile, Dizon testified that he had never been informed of that right and that he "repeatedly told [his counsel] that he...

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