Grim v. State
| Decision Date | 21 September 2010 |
| Docket Number | No. 2008–KP–01920–COA.,2008–KP–01920–COA. |
| Citation | 102 So.3d 1123 |
| Parties | Frederick Denell GRIM, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Frederick Denell Grim, appellant, pro se.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
Before LEE, P.J., IRVING and GRIFFIS, JJ.
IRVING, J., for the Court:
¶ 1. This appeal arises out of Frederick Denell Grim's conviction in the Tunica County Circuit Court for the sale of cocaine and the resulting sentence of life in the Mississippi Department of Corrections (MDOC) as a habitual offender. Feeling aggrieved, Grim appeals and asserts that: (1) the indictment that was used to charge him was fatally defective for failing to include the dates of sentencing for his prior convictions which were used to impose habitual-offender status; (2) he received ineffective assistance of counsel in the course of his jury trial and sentencing; (3) the circuit court erred when it refused to grant his motion for a directed verdict; (4) the circuit court erred when it denied his motion for a new trial; (5) the indictment was fatally defective for referencing two different habitual-offender statutes without specifying which statute would be used to confer habitual-offender status; and (6) cumulative error deprived him of his right to a fair trial.
¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶ 3. On February 15, 2007, Captain Luis Hawkins with the Mississippi Bureau of Narcotics (MBN) met with Detective Chris Smith of the Tunica Police Department (TPD),1 Major Terry Spillers of the MBN, Detective Cedric Milburn of the TPD, and Terry Reed, a confidential informant. Captain Hawkins testified that the officers decided that Reed would travel to different locations in Tunica, Mississippi, “in an attempt to purchase illegal drugs from known suspected drug violators in the area.” Captain Hawkins further testified that Reed was outfitted with both audio- and video-recording equipment. Captain Hawkins explained that Reed was searched at a pre-buy location and was given two hundred dollars in “official State funds” with which to attempt to purchase illegal drugs. Captain Hawkins testified that Reed was chosen to work as an informant after Reed was arrested for selling marijuana. In exchange for non-prosecution, Reed agreed to work with the authorities as a confidential informant.
¶ 4. Captain Hawkins testified that Reed proceeded to 1521 Cotton Street 2 in Tunica, Grim's residence, after meeting with the officers at the pre-buy location. Captain Hawkins explained that Grim exited the residence and approached Reed's vehicle and that both Reed and Grim entered the residence thereafter. After spending some time in the residence, Reed met officers for a post-buy meeting where he gave the officers cocaine that he had purchased from Grim. Captain Hawkins indicated that Reed was again searched at the post-buy meeting.
¶ 5. Reed testified and related the same series of events as Captain Hawkins. Specifically, Reed indicated that he met with the officers on February 15, 2007, and that they searched him before sending him to Grim's house. Reed testified that Grim was outside when he arrived at the residence, that he then approached Grim, that both men got into Reed's vehicle, and that they then went inside together, where Grim furnished him with cocaine in exchange for two hundred dollars. Reed explained that he then left Grim's residence and proceeded to the post-buy location, where the officers again searched him and his vehicle. During his direct examination, the videotape of the buy was played for the jury, and Reed explained what was going on at various points in the videotape. Reed testified that he knew Grim prior to purchasing the cocaine from him on February 15.
¶ 6. Erik Frazure, a forensic scientist employed by the Mississippi Crime Laboratory, testified regarding the scientific tests that were performed on the cocaine that Reed had purchased. After an objection by Grim's trial attorney, the jury was excused. The essence of the objection was that Frazure had not performed the actual tests, but had merely reviewed the tests. The following exchange occurred in pertinent part:
[THE COURT]: For the purpose of this motion to exclude introduction, would you—
Frazure, what did you have to do with the test-let me see. What exhibit are we talking about?
And what I did was, I took that work packet and I reviewed the work packet to ensure that he did the proper tests, which was in this case a color test and a GC mass spec, ensured that those were both proper tests for this type of evidence, and I looked to see the results that he had and made sure that the results from those two examinations did coincide with the results that he—or the conclusion that he formed, and I made sure that that—the conclusion that he formed with his report was correctly [sic] with the conclusion that was in his work packet.
[THE COURT]: All right. So, you reviewed the results of the gas chromatograph and the gas spectrometer?
(Conferring with Mr. Kenneth Behrens.) 3
But your objection is noted for the record.
After this exchange, Frazure went on to testify that the substance that was submitted to the laboratory contained 3.2 grams of cocaine. During cross-examination, Grim's attorney questioned Frazure at length regarding the fact that he had not personally performed the analysis of the cocaine.
¶ 7. Grim did not testify or offer any witnesses in his defense. After being instructed, the jury found Grim guilty of the sale of cocaine. A little over two weeks later, the circuit court held a sentencing hearing. At the hearing, Gloria Gibbs, the records supervisor for the MDOC, testified regarding Grim's prior convictions and the time that he had served for those convictions. Gibbs indicated that Grim had served at least a year each for two prior felony convictions. Grim also testified at the sentencing hearing, where he disputed Gibbs's statement that he had served a year for a prior conviction for possession of cocaine. At the conclusion of all of the evidence, the circuit court found that the State had proven two prior convictions, each of which Grim had served at least a year for. When Grim's attorney asked for clarification as to which convictions the State had proven, the circuit court refused to specify any particular convictions, instead referencing Gibbs's testimony and the documents introduced by the State.
¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 9. In his first contention of error, Grim claims that the indictment that was used to charge him was fatally defective because it did not include the dates of sentencing for his prior convictions that were used to prove habitual-offender status. Grim further contends that the State failed to introduce any proof of the dates of his sentences at his sentencing hearing.
¶ 10. As already stated, Gibbs testified at the hearing that Grim had served at least a year in prison on two prior felony charges. While the documents that were produced by the State were not as clear, Gibbs's testimony was sufficient to prove Grim's habitual-offender status. As to the presence of the sentencing dates in the indictment, Rule 11.03(1) of the Uniform Rules of Circuit and County Court states that a habitual-offender indictment “must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.” (Emphasis added). The indictment here listed Grim's prior convictions, including each cause number, the courts of conviction, the dates of the convictions, what crime Grim had been convicted of for each conviction, the dates of the offenses, and the length of sentences that Grim received. Clearly, this information complied with the requirements of Rule 11.03(1). The rule does not require that an indictment allege the date of sentencing for a prior offense; rather, the rule requires that the indictment list the date of judgment of the prior convictions. The indictment here did exactly that.
¶ 11. This contention of error is without merit.
¶ 12. In his second contention of error, Grim contends that he received ineffective assistance of counsel at both his trial and his sentencing hearing. Specifically, Grim complains that his attorney allowed him “to be sentenced to a term of life ... by a judge rather then [sic] a jury, without the slightest objection and in the face of clear United States...
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