Holland v. State

Decision Date08 June 1995
Docket NumberNo. 92-KA-00053-SCT,92-KA-00053-SCT
PartiesWillie James HOLLAND v. STATE of Mississippi.
CourtMississippi Supreme Court

Robert M. Ryan, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Jean Smith Vaughan, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the Court:

Willie James Holland was convicted in the Tate County Circuit Court for possession of cocaine with the intent to distribute in violation of Miss.Code Ann. Sec. 41-29-139(a)(1). The trial court sentenced Holland to serve a term of fifteen (15) years with the last five years suspended pending good behavior and five years probation following his release. He was released on $5000 bond pending the disposition of this appeal. The following issues are raised in his appeal to this Court:

I. WAS THE EVIDENCE PRESENTED AT TRIAL LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR POSSESSION OF COCAINE WITH INTENT TO SELL, BARTER, TRANSFER, DISTRIBUTE OR DISPENSE?

II. WAS HOLLAND DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL?

III. DID THE TRIAL COURT ERRONEOUSLY ALLOW THE IMPEACHMENT OF HOLLAND WITH EVIDENCE OF OTHER ALLEGED CRIMES?

THE FACTS

Deputy Sheriff Larry Hulette testified that the sheriff's department received several complaints regarding an individual dealing crack cocaine on the streets of Coldwater, Mississippi. He said that Holland was questioned on November 2, 1990 because he matched the description of the alleged crack cocaine dealer. Hulette testified that immediately before investigating the defendant, he also observed what appeared to be an exchange between Holland and another individual. Upon being arrested Holland denied possessing any cocaine, instead claiming that it had been sold. He removed a single rock of cocaine from his pocket after being asked if he had weapons in his possession. Holland explained to Hulette that the single rock of cocaine was merely for personal use. Defense counsel stipulated at trial that the substance seized from Holland was cocaine.

Officer Hulette subsequently discovered $223.75 in cash and an electronic pager in Holland's pockets. Holland freely admitted in a handwritten confession that he had sold drugs in the past while unemployed. He claimed that he had been encouraged by his cousin to sell cocaine because of his cousin's desire to control the drug sales in Coldwater. Officer Hulette testified that Holland never indicated any intention to sell cocaine in the future, but that the "intent to sell" was inferred from the written statement composed after his arrest.

Holland testified that he traveled to Coldwater, Mississippi from Tunica, Mississippi on November 2, 1990 for the purpose of purchasing the single rock of cocaine found in his possession. He said that he was carrying $223.75 in cash because he had received a paycheck earlier that afternoon. He estimated his average paycheck to be between $250 to $280 per week. He testified that he was employed as a bulldozer operator at the time, but that he was fired in August of 1991 on account of his cocaine addiction. Contrary to this testimony, Officer Hulette's police report indicated that Holland claimed to have been recently laid off at the time of his arrest.

Holland, however, testified that his employer was responsible for posting bail.

Holland testified that his intention was to smoke the cocaine in his possession instead of selling it. Officer Hulette testified that Holland indicated this intention at the time of arrest. Holland denied making any kind of exchange with another individual immediately before his arrest. He explained that he gave the written statement in hopes of his charges being dismissed. He claimed that the police expressed an interest in locating the source of the cocaine, and that they promised him the charges would likely be dismissed if he cooperated. He testified that the police expressed a desire to apprehend a "Woodard boy." Holland said that they were referring to his cousin. Holland testified that someone gave him the electronic pager to deliver to his cousin, and that he did not know if the device actually worked. Officer Hulette admitted that the pager had never been tested to determine if it was functional.

THE LAW

In order for the evidence to be sufficient to establish possession with intent to sell or deliver, the state must prove intent beyond a reasonable doubt. Esparaza v. State, 595 So.2d 418, 427 (Miss.1992). Mere suspicion of intent can not support a conviction. Stringfield v. State, 588 So.2d 438, 440 (Miss.1991). Holland's strategy of defense was to admit guilt as to simple possession, but to deny any intent to distribute by convincing the jury that the single rock of cocaine was merely for personal use. While Holland freely admitted that he possessed a rock of cocaine when officer Hulette initially stopped him for questioning, there was no direct evidence that Holland intended to sell, barter, transfer or dispense this rock of cocaine. The intent to sell or distribute contraband, however, may be established by circumstantial evidence. Jowers v. State, 593 So.2d 46, 47 (Miss.1992); Jackson v. State, 580 So.2d 1217, 1220 (Miss.1991); Hollingsworth v. State, 392 So.2d 515, 517 (Miss.1981).

Holland was carrying one rock of crack cocaine with a street value of approximately twenty dollars. This quantity of cocaine was clearly an amount commensurate with personal use. Consequently, it was necessary for the prosecution to introduce additional evidence to transform this from a case of simple possession to a conviction of possession with intent to sell or distribute. See Roberson v. State, 595 So.2d 1310, 1319 (Miss.1992) ("where the contraband is in an amount which a person could reasonably hold for personal use, other evidence of intent is necessary"); Breckenridge v. State, 472 So.2d 373, 378 (Miss.1985). The prosecution offered the following additional circumstantial evidence in support of the charge of possession with intent to distribute cocaine: 1) officer Hulette observed some type of exchange between Holland and another individual; 2) Holland was in an area associated with drug usage and sales at the time of the alleged exchange carrying $223.75 and an electronic pager; and, 3) Holland explained in a written statement that he had been selling drugs in the past three weeks.

Officer Hulette testified that he observed what appeared to be an exchange between Holland and another individual immediately before Holland was arrested with possession of one rock of crack cocaine, more than two hundred dollars in cash, and an electronic pager. This Court faced similar evidence in Jackson v. State, 580 So.2d 1217, 1220 (Miss.1991). The defendant in Jackson was arrested in an area of known drug dealing with possession of 4.1 grams of marijuana divided into six bags and $103 in cash. He was also observed holding the drugs in one hand and the money in the other immediately before being arrested. Id. We concluded that the evidence was insufficient to establish an intent to sell or deliver since the "evidence [gave] rise to two reasonable, but completely opposite inferences namely: [the defendant] was either completing a purchase or attempting to make a sale." Id. The jury was improperly required to make a decision as to which activity the defendant was engaged in since the evidence created two equally feasible inferences. Id. Likewise, the evidence produced in the present case could equally support the inference that Holland was purchasing drugs instead of distributing them. In fact, the evidence in this case is actually Furthermore, neither the amount of cash nor the electronic pager is sufficient to establish an intent to distribute beyond a reasonable doubt. See Girley v. State, 602 So.2d 844, 845 (Miss.1992) (concluding that eleven and half ounces of marijuana contained in four sandwich bags along with $861.69 in cash was insufficient to establish intent to distribute); Jowers, 593 So.2d at 47 (finding eleven ounces of marijuana, two sets of portable scales, surgical tool, rolling papers, and $356 in cash insufficient to establish intent to distribute); Stringfield, 588 So.2d at 440 (finding fourteen grams of cocaine alone insufficient to establish intent to sell or deliver). Holland even denied that the beeper was functional, and there was no proof to the contrary. The only remaining support for an "intent to distribute" lay in Holland's written statement confessing to past drug activity.

far less convincing than the evidence produced in the Jackson case because Hulette was not certain if drugs were the subject of the exchange. As a result, he could not say for sure if Holland was actually involved in an illegal exchange in the first place. His observations merely demonstrated that Holland appeared to have purchased, sold or simply traded an unidentified object in an area associated with drug dealing. It follows that the evidence of the exchange involving the defendant was not sufficient to establish an intent to distribute beyond a reasonable doubt.

Evidence of prior involvement in the drug trade is admissible to prove intent to distribute. Jowers v. State, 593 So.2d 46, 47 (Miss.1992) (Sullivan); Jackson v. State, 580 So.2d 1217, 1220 (Miss.1991); Stringer v. State, 557 So.2d 796, 797 (Miss.1990). It is admissible under M.R.E. 404(b) which provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Holland's written confession described past drug activity, and it was submitted to the jury along with an instruction limiting its use to proof of intent to distribute. In Smith v. State, 656 So.2d 95, 99 (1995), this Court held that...

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