Knight v. State

• Decision Date: 10 November 2011
• Docket Number: No. 2010–KA–00770–SCT.,2010–KA–00770–SCT.
• Parties: Kenneth KNIGHTv.STATE of Mississippi.
• Court: Mississippi Supreme Court

72 So.3d 1056

Kenneth KNIGHT

v.STATE of Mississippi.

No. 2010–KA–00770–SCT.

Supreme Court of Mississippi.

Sept. 8, 2011.Rehearing Denied Nov. 10, 2011.

Phillip Broadhead, Oxford, Office of Indigent Appeals by Leslie S. Lee, attorneys for appellant.Office of the Attorney General by Lisa Lynn Blount Scott Stuart, attorneys for appellee.Before CARLSON, P.J., PIERCE and KING, JJ.KING, JUSTICE, for the Court:

¶ 1. Kenneth Hugh Knight was convicted in the Pearl River County Circuit Court of possession of a controlled substance with intent to distribute while in possession of a firearm. Aggrieved, Knight appeals, raising three issues: (1) ineffective assistance of counsel, (2) the denial of his motion for a directed verdict or a judgment notwithstanding the verdict (JNOV), and (3) the denial of his motion for a new trial. Because the record is not sufficient to address Knight's claim of ineffective assistance of counsel, we dismiss the claim without prejudice. But we affirm the circuit court's judgment on the remaining issues.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 2, 2007, Lieutenant Chad Dorn of the Picayune Police Department was on patrol when he received instructions to be on the lookout for a stolen, green Ford Explorer. Lieutenant Dorn located what he believed to be the stolen vehicle at 615 North Buren Avenue in Picayune, Mississippi. At this point, Lieutenant Dorn called for backup; police officers Josh English and Edwin Merwin responded to the call.

¶ 3. Lieutenant Dorn checked the vehicle identification number (VIN) on the vehicle and found that it matched the VIN of the stolen vehicle that was reported by dispatch. Then, he knocked on the door of the residence in hopes of finding the driver of the vehicle. Knight answered the door. Lieutenant Dorn asked for the driver of the vehicle, and Knight brought Lisa Shoemake to the door. Lieutenant Dorn and Shoemake stepped away from the door. He advised Shoemake of her Miranda rights and then asked about the vehicle.¹ According to Lieutenant Dorn, Shoemake told him that the vehicle belonged to her sister and that she had borrowed it without permission.

¶ 4. Lieutenant Dorn testified that he knew Shoemake because he previously had arrested her, and she was known to have a drug problem. Thus, Lieutenant Dorn inquired as to Shoemake's purpose at the residence. According to Lieutenant Dorn, Shoemake told him that she had purchased crack cocaine, which she had already ingested, from Knight. Acting on this information, Lieutenant Dorn ordered Officer English and Officer Merwin to get everyone out of the home and to secure the premises while he obtained a search warrant. Officer English testified that he cleared the home and detained Knight, Shoemake, Angel Case (Knight's friend) and Knight's thirteen-year-old son until Lieutenant Dorn returned.

¶ 5. Lieutenant Dorn returned with the search warrant and commenced to search the premises.² Under the cushions of a couch, Lieutenant Dorn found a plastic baggy containing several off-white, rock-like objects, $542 in cash, and a sawed-off shotgun. Officer Bryan Dawsey of the Picayune Police Department testified that he had marked the evidence, stored it in the evidence locker, and eventually had taken the evidence to the Mississippi Crime Laboratory for testing. Chancey Bass, a forensic scientist for the Mississippi Crime Laboratory, tested the evidence. He testified that the substance was determined to be 2.6 grams of cocaine, a schedule II drug.

¶ 6. Lieutenant Dorn arrested Knight and Case. Shoemake was not arrested for the drugs or the stolen vehicle, but she was taken in for questioning. Shoemake provided a written statement to police. According to Lieutenant Dorn, Knight declined to give a written statement, but he voluntarily gave an oral statement in which he claimed ownership of the seized cash and requested that it be returned to him.

¶ 7. At trial, Knight's counsel stipulated to the sufficiency of the search warrant. Shoemake testified for the State. She stated that she had gone to Knight's house to buy crack cocaine, and she had purchased $30 worth of crack cocaine twice that day. Although she did not see an exchange of drugs between Case and Knight, Shoemake stated that Case had retrieved the drugs from Knight, and then had delivered the drugs to her. On cross-examination, Shoemake acknowledged that she had pleaded guilty to possession of a controlled substance and was currently serving her sentence—five years suspended, with two years on house arrest. Defense counsel asked Shoemake whether she was a prior convicted felon, and she said “yes.” According to Shoemake, the maximum sentence for her crime was eight years, but she did not receive the maximum sentence. Shoemake denied receiving a plea deal in exchange for her testimony.

¶ 8. Case also testified for the State. She stated that Knight was a friend, and she had stayed with him at times because his home was a known place to acquire drugs. Case was not aware of Shoemake's allegations against her-that she was distributing drugs from Knight's home. Case testified that when the police arrived at Knight's home, Knight was asleep on the couch, where he slept often. Case acknowledged that she initially was charged as a codefendant in Knight's case, but she had pleaded guilty to a lesser charge of possession. She had received a nonadjudicated, two-year sentence with probation. But, thereafter, Case had violated her probation and was serving her sentence at the time of Knight's trial. Case also denied that she had received a plea deal in exchange for her testimony.

¶ 9. Based on this evidence, a Pearl River County jury convicted Knight of possession of cocaine with intent to deliver or sell while in possession of a firearm. The circuit court entered Knight's Order of Conviction on April 23, 2010. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with twenty years suspended and ten years to serve, and twenty years of post-release supervision, with five years reporting and fifteen years nonreporting. Knight filed a Motion for JNOV or, in the Alternative, a New Trial. The circuit court denied the motion. On April 27, 2010, Knight filed a Renewed Motion for JNOV or, in the Alternative, a New Trial. The circuit court denied this motion as well. On March 6, 2010, Knight timely filed his notice of appeal.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 10. This Court analyzes claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Johnson v. State, 29 So.3d 738, 745 (¶ 20) (Miss.2009). There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. Id. To rebut this presumption, the petitioner must show that “(1) his [trial] counsel's performance was deficient, and that (2) the deficiency prejudiced him.” Id. (citing Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985)). Knight raises three claims of ineffective assistance of counsel, but these claims rest on one question: whether there was sufficient probable cause for the search warrant.

¶ 11. Knight argues that he received ineffective assistance of counsel because: (1) his trial counsel failed to investigate whether probable cause existed for the search warrant, (2) his trial counsel failed to request a suppression hearing, and (3) his trial counsel stipulated to the sufficiency of the search warrant. The State argues that Knight's claim should not be considered on direct appeal and is more appropriate for a motion for post-conviction relief.

¶ 12. Mississippi Rule of Appellate Procedure 22(b) provides in pertinent part, that: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” We believe that the record is not sufficient to address Knight's claim of ineffective assistance of counsel.

¶ 13. Article 3, Section 23 of the Mississippi Constitution provides, in pertinent part that: “no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.” Miss. Const. art. 3, § 23. In Petti v. State, 666 So.2d 754, 757 (Miss.1995), this Court stated that:

A search warrant may only be issued when the police have demonstrated probable cause by introducing evidence of underlying facts and circumstances before the magistrate granting the warrant. Probable cause exists when facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it. The affidavit is the means of presenting to the issuing magistrate a basis upon which he may determine whether in fact probable cause exists.

(citing Barrett v. Miller, 599 So.2d 559, 566 (Miss.1992) (internal citations omitted)). When a defendant attacks a search warrant on the grounds that there was not sufficient probable cause for its issuance, the reviewing court must determine whether the magistrate's decision was supported by substantial evidence. Petti, 666 So.2d at 757.

¶ 14. In this case, the magistrate found probable cause to issue the search warrant based on Lieutenant Dorn's affidavit, which stated that:

On 06–02–07 at 0830 [hours,] I located a reported stolen vehicle behind the residence of 615 North Buren Ave. While conducting my investigation[,] I was advised by Lisa Shoemake[,] who was at the residence, that Kenneth Knight had been selling Crack Cocaine to various people at this residence. Lisa Shoemake is a reliable source who has been used in the past to get information to conduct other search warrants. She gave...