Gray v. State
| Decision Date | 25 April 2006 |
| Docket Number | No. 2004-M-00213-COA.,No. 2004-KA-01915-COA.,2004-KA-01915-COA.,2004-M-00213-COA. |
| Citation | 926 So.2d 961 |
| Parties | Derek GRAY, Appellant, v. STATE of Mississippi, Appellee. Derek Gray, Appellant, v. State of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Office of the Attorney General by John R. Henry, attorney for appellee.
Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.
IRVING, J., for the Court.
¶ 1. Derek Gray was convicted by a Hinds County jury of possession of more than thirty grams of cocaine. Because he had two prior felony convictions and qualified as an habitual offender, Gray was sentenced by the Hinds County Circuit Court to life imprisonment in the custody of the Mississippi Department of Corrections. Gray appeals his conviction and raises the following contentions, which we list verbatim:
1. THE JURY VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
2. THE LOWER COURT ERRED IN NOT GRANTING THE MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE, AT THE CONCLUSION OF THE TRIAL, A PEREMPTORY INSTRUCTION, AND FOR NOT GRANTING THE MOTION FOR A NEW TRIAL OR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE MERITS AND AFTER NEW EVIDENCE WAS FOUND.
3. THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S SUCCESSIVE MOTIONS FOR DISCOVERY TO BE PROVIDED WITH CRITICAL TRIAL TESTIMONY OF ROBERT SHEGOG AND RICHARD
MCGAHEY WITH THE JACKSON POLICE DEPARTMENT.
4. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT'S OBJECTIONS, DENYING THE DEFENDANT'S MOTIONS FOR DISMISSAL, AND DENYING A CONTINUANCE AS A RESULT OF THE STATE'S DISCOVERY VIOLATIONS AT THE BEGINNING OF TRIAL.
5. THE LOWER COURT ERRED IN ALLOWING PORTIONS OF THE TESTIMONY OF ROBERT SHEGOG AND THE ENTIRE TESTIMONY OF RICHARD MCGAHEY FOR DISCOVERY VIOLATIONS, THE PROSECUTION HAVING NOT PROVIDED NOTICE OF SAID TESTIMONY AS REQUIRED BY RULE 9.04 OF THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.
6. THE LOWER COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROVIDE A SPEEDY TRIAL.
7. THE LOWER COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT TWICE.
8. THE LOWER COURT ERRED IN FINDING PROBABLE CAUSE BASED ON AN UNDISCLOSED CONFIDENTIAL INFORMANT.
9. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTIONS TO SUPPRESS AND THEREBY ADMITTING AS EVIDENCE STATEMENTS OF THE DEFENDANT AND DRUG EVIDENCE TAKEN FROM THE SCENE.
10. THE LOWER COURT ERRED IN DENYING THE DEFENSE MOTION IN LIMINE REGARDING A PRIOR MANSLAUGHTER CONVICTION OF THE DEFENDANT HAVING THE EFFECT OF DENYING HIM THE OPPORTUNITY TO TESTIFY IN HIS OWN BEHALF.
11. THE LOWER COURT ERRED IN DENYING THE DEFENSE ITS POST-TRIAL MOTION FOR FUNDS TO RETAIN A HANDWRITING EXAMINER TO AUTHENTICATE NEWLY DISCOVERED EVIDENCE.
12. THE LOWER COURT ERRED IN ITS GRANTING AND REFUSING OF SPECIFIC JURY INSTRUCTIONS.
13. THE SENTENCE OF THE LOWER COURT IS UNCONSTITUTIONALLY CRUEL AND UNUSUAL.
14. THE VERDICT OF THE JURY SHOULD BE SET ASIDE AS THE APPELLANT WAS DENIED A FAIR TRAIL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.
Finding no error, we affirm.
FACTS
¶ 2. On April 25, 2001, a search warrant was executed at 813 Grandberry Street in Jackson by the Jackson Police Department. When the police arrived, two individuals, Gray and a woman, were standing in the yard of the house. Six more individuals were discovered inside the house. Four rocks of cocaine were found outside the house, on the ground near where Gray and the woman had been standing, and significantly more cocaine was found inside the house. In total, over thirty grams of cocaine were recovered from the property. All the individuals at the location were charged with possession of the entire amount of the cocaine.
¶ 3. On April 25, the day the search warrant was executed, Gray gave a statement to police waiving his Miranda rights and disavowing ownership of any of the cocaine. During this statement, Gray stated that he resided at 813 Grandberry Street. When asked specifically, "How many people were located inside of your house," Gray responded, "A lot of them." Additionally, an Entergy bill in Gray's name and addressed to 813 Grandberry Street was found at the scene.1 In short, it is undisputed that 813 Grandberry Street, a one-bedroom house, was Gray's residence.
¶ 4. On May 9, 2001, Gray contacted the lead detective on the case, Robert Shegog, and gave another statement. The substance of this statement was essentially that Gray knew about the cocaine in the house, but that it was not his. Instead, Gray explained that Gray indicated that he was aware that drugs were being sold at the house, and that he had witnessed drugs being sold at the house. Along with a Miranda waiver, the statement also contained a separate waiver signed by Gray that indicated that "[n]o promises or threats have been made to me and no pressure or coercion of any kind has been used against me."
¶ 5. After a jury trial, Gray was convicted and sentenced to life. Shortly after trial, Gray produced a "newly discovered" document. The document, which appeared to be a Miranda waiver form, was allegedly signed by both Gray and Shegog. At the bottom, Gray had written:
On 4-25-01 I gave this statement to Det. Robert Shegog because he has released me from this charge that happen [sic] on 4-25-01 at 813 Grandberry St. Jackson, Ms. Det. Robert has asked me to write down what I think might had happen and to agree to what he puts on his report ... [illegible] ... Det. Robert Shegog has not put the charge of possession of cocaine on [cut off] at all and I am free from this charge of poss. of cocaine on 4-25-01 at 813 Grandberry [cut off] this is a insurance of our agreement that I was and am INNOCENT. I [cut off] know nothing about any drugs at all. The END.
This paragraph was written below the signatures on the paper. At a posttrial hearing, Shegog denied having signed the document or ever having seen it before. Shegog also testified that the form was similar, but not the same, as a form used by the Jackson Police Department. The right side of the paper, where a case number would generally be located, was inexplicably ripped off.
¶ 6. Gray maintained that he had not been able to locate the paper before trial, but was able to find it by making a few phone calls from jail after he was convicted. Gray was unable to give the full names of any of the people who had worked to get the document to him. When the document was presented to the court, it was apparently severely damaged, both by tears in the paper and blotches of ink. When questioned, Gray could provide no explanation for the condition of the document. Gray's attorneys requested that the court order that a forensic handwriting expert look at the document to determine whether Shegog's signature was authentic. The court declined, ruling that there was nothing credible about the document to warrant providing funds for a forensic handwriting expert.
¶ 7. The court denied all the posttrial motions filed by Gray. The Hinds County Public Defender's Office, which had handled Gray's trial representation, does not represent him on appeal. Instead, Gray is represented by Minor F. Buchanan on appeal. Additional facts will be given as necessary in the remainder of this opinion.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 8. When making this review, we will reverse only if Gray's conviction is "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Dilworth v. State, 909 So.2d 731, 737(¶ 21) (Miss.2005) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)). We will weigh the evidence "in the light most favorable to the verdict." Bush, 895 So.2d at 844(¶ 18). In order for us to reverse, the trial court must have "abused its discretion in denying a motion for new trial." Dilworth, 909 So.2d at 737(¶ 20). "Only in `exceptional cases in which the evidence preponderates heavily against the verdict' should the trial court invade the province of the jury and grant a new trial." Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).
¶ 9. Gray contends: "Considering the quality of the evidence and the improper tactics of the prosecution — which clearly swayed the jury — it is clear that this verdict should be considered against the overwhelming weight of the evidence." Gray specifically argues that "when the co-defendants are clearly identified as they were in this case as the owners and possessors of the contraband in question and for which they were individually prosecuted, the presumption that any of those items were possessed by the appellant has been substantially overcome."
¶ 10. We find that the verdict in this case was not against the overwhelming weight of the evidence. Gray focuses on the fact that Shegog gave conflicting testimony the day before trial began when he testified that he had never taken a statement from Gray prior to the May 9 statement. Gray's attorneys questioned Shegog extensively about this during their cross-examination of him during trial, and attempted to convince the jury that Shegog's testimony was not credible as a result. Shegog explained that his misstatement was a mistake caused by the large amount of evidence that had been collected in the case and the lengthy time period between the arrest and trial.
¶ 11. We note first that Gray's attorneys cross-examined Shegog in the presence of the jury regarding his incorrect statement. We also note that ...
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