Jennings v. State

• Decision Date: 09 February 2021
• Docket Number: NO. 2019-KA-01709-COA,2019-KA-01709-COA
• Citation: 311 So.3d 712
• Parties: Gary Lynn JENNINGS, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

311 So.3d 712

Gary Lynn JENNINGS, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01709-COA

Court of Appeals of Mississippi.

February 9, 2021

ATTORNEY FOR APPELLANT: JOHN SAMUEL GRANT IV, Flowood

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. A Calhoun County Circuit Court jury convicted Gary Lynn Jennings of the sale of a controlled substance pursuant to Mississippi Code Annotated section 41-29-139(a)(1) (Supp. 2016). The circuit court sentenced Jennings as a habitual offender to serve thirty years in the custody of the Mississippi Department Corrections (MDOC) without eligibility for early release or parole. Jennings filed a motion for a new trial or to vacate the judgment, which the circuit court denied.

¶2. Jennings now appeals. On appeal, Jennings argues that (1) his conviction should be reversed and his case be remanded for a new trial because the jury was not instructed on an essential element of the charged crime; (2) the circuit court erred by finding that it had no discretion to reduce Jennings's sentence; (3) the circuit court erred by failing to conduct a full Batson¹ analysis; (4) his conviction should be reversed because there was insufficient evidence presented on an essential element of the charged crime or, alternatively, that the verdict was against the overwhelming weight of the evidence; and (5) his conviction must be reversed because he received ineffective assistance of counsel. Upon review, we find that the circuit court failed to instruct the jury on an essential element of the charged crime—that Jennings knowingly and intentionally sold a controlled substance. Accordingly, we reverse Jennings's conviction and sentence and remand this case for a new trial. We also find that had the jury been properly instructed, the State offered sufficient evidence to support Jennings's conviction for the sale of a controlled substance; therefore, we find that the circuit court did err in denying Jennings's posttrial motion to vacate the judgment on this ground.

FACTS

¶3. In 2017, Mississippi Bureau of Narcotics agents arrested Jennings for selling methamphetamine to a confidential informant. Jennings was subsequently indicted for selling methamphetamine pursuant to section 41-29-139(a)(1). Jennings's indictment charged that on April 25, 2017, Jennings

did unlawfully, willfully, feloniously, knowingly and intentionally, without authority of law, sell and/or transfer more than ten (10) grams, but less than thirty (30) grams, of a certain controlled substance, to-wit: 26.651 grams of Methamphetamine, which is a Schedule II controlled substance ... to [a] [c]onfidential [i]nformant ... (CI), and did receive from the said CI the sum of Four Hundred Dollars ($400.00) in good and lawful money ... for the said controlled substance, in violation of the provisions of [s]ection 41-29-139(a)....

Upon the State's motion, the circuit court amended Jennings's indictment to reflect Jennings's status as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015), based on Jennings's prior convictions.

¶4. A jury trial was held August 13-14, 2019. During the trial, the jury heard testimony from the following witnesses for the State: Jon Lepicier, an agent with the Mississippi Bureau of Narcotics who facilitated the controlled purchase; Erik Frazure, who worked with the Mississippi Forensics Laboratory, who identified the substance recovered from the controlled purchase as methamphetamine; and Kenneth Jaco, the confidential informant who performed the controlled purchase. After the State rested, the defense moved for a directed verdict, which the circuit court denied.

¶5. The jury ultimately returned a verdict, finding Jennings guilty of the sale of a controlled substance. Before sentencing, the State sought to have the circuit court sentence Jennings as a nonviolent habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The circuit court accordingly sentenced Jennings as a habitual offender pursuant to section 99-19-81 to serve thirty years in the custody of the MDOC without eligibility for early release or parole. During sentencing, the circuit court judge stated his belief that "the [c]ourt is ... legally obligated to impose the statutory maximum for the crime for which the defendant has been convicted here today."

¶6. Jennings filed a motion for a new trial and an amended motion for a new trial or to vacate the judgment. In his amended motion, Jennings argued that "the instructions given to the jury were improper, and were in violation of the defendant's constitutional rights." He also challenged the sufficiency and weight of the evidence, the legality of his sentence, and jury selection and its composition.

¶7. The circuit court denied Jennings's posttrial motion. During this time, the circuit court judge expressed that "I think the court should have discretion to sentence him to something other than the maximum. But, I don't have that discretion and I can't exercise discretion that I don't have. So I gave him the only sentence that the law allows and I'm not proud of that, Mr. Jennings. It's just the way, that is part of my job."

¶8. This appeal followed.

DISCUSSION

I. Jury Instructions

¶9. Jennings first asserts that he was denied his fundamental right to due process when the trial court failed to instruct the jury on an essential element of the charge against him. Specifically, Jennings argues that the trial court did not instruct the jury that they must find that Jennings "knowingly or intentionally" sold a controlled substance, as required by section 41-29-139(a)(1). As a result, Jennings argues that his conviction for selling methamphetamine must be reversed. We agree. For the reasons set forth below, we reverse Jennings's conviction and sentence based upon this assignment of error and remand this case for a new trial.

¶10. Jennings was indicted for selling a controlled substance under section 41-29-139(a)(1), which provides, "Except as authorized by this article, it is unlawful for any person knowingly or intentionally : (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance[.]" Miss. Code Ann. § 41-29-139(a)(1) (emphasis added). Therefore, "[a]n essential element of the crime with which [Jennings] was charged was that he had knowledge that he was selling or transferring a controlled substance and that he intended to do so." Hale v. State , 191 So. 3d 719, 724 (¶11) (Miss. 2016).

¶11. The transcript reflects that during the jury instruction conference, the State submitted Instruction S-1-A,² which purported to provide the elements of the charged offense of sale of a controlled substance. Instruction S-1-A stated as follows:

The Defendant, Gary Lynn Jennings, is charged in the Indictment with the felony crime of selling and/or transferring 26.651 grams of Methamphetamine, a Schedule II controlled substance as provided for by the laws of the State of Mississippi.

If you find beyond a reasonable doubt from the evidence in this case that:

1. On or about April 25, 2017,

2. In Calhoun County, Mississippi,

3. Gary Lynn Jennings sold and/or transferred more than ten (10) grams, but less than thirty (30) grams, of Methamphetamine, a Schedule II controlled substance, to Kenneth Jaco,

Then you shall find the Defendant guilty as charged in the indictment, in which case you should write your verdict on a separate piece of paper provided to you by the Court for that purpose in the following form:

"We, the jury, find the Defendant, Gary Lynn Jennings, guilty of Sale of a Controlled Substance under the Indictment."

If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Gary Lynn Jennings, not guilty, in which case you should write your verdict on a separate sheet of paper provided to you by the Court for that purpose in the following form:

"We, the jury, find the Defendant, Gary Lynn Jennings, not guilty of Sale of a Controlled Substance under the Indictment."

As shown, Instruction S-1-A omits the statutory element that Jennings must have "knowingly or intentionally" sold methamphetamine. Jennings did not object to this instruction, and the record reflects that Instruction S-1-A was given to the jury. The record reflects that Instruction S-1-A was the only instruction given to the jury that provided them with the law regarding Jennings's charged offense. Based on this instruction, the jury found Jennings guilty of selling a controlled substance.

¶12. The transcript further reflects that during the jury instruction conference, the defense proposed Instruction D-5 that included all of the essential statutory elements of the charge against Jennings. The proposed instruction stated as follows:

Gary Lynn Jennings is charged with selling methamphetamine.

If you find beyond a reasonable doubt from the evidence in this case that:

1. On or about April 25, 2017, in Calhoun County, Mississippi;

2. Gary Lynn Jennings knowing [sic] or intentionally and without authority of law sold;

3. Methamphetamine in the amount of 26.651 grams;

4. To Kenneth Jaco;

then you shall find the defendant guilty as charged.

If the prosecution did not prove any one of the above listed elements beyond a reasonable doubt, then you shall find Gary Lynn Jennings "Not Guilty."

¶13. During consideration of Instruction D-5, the circuit court commented, "It's the second half of S-1[-A], I believe, is it not?" Defense counsel, apparently also believing that Instruction D-5 contained the same elements set forth in Instruction S-1-A, responded, "I don't feel the need to offer it twice." As a result, Instruction D-5 was withdrawn and not given to the jury.

¶14. As stated, the record reflects that Jennings did not object to Instruction S-1-A. Gen...