Lee v. State

• Decision Date: 29 January 2019
• Docket Number: NO. 2016-KA-01187-COA,2016-KA-01187-COA
• Citation: Lee v. State, 281 So.3d 101 (Miss. App. 2019)
• Parties: Major LEE a/k/a Major Lee Jr., Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

281 So.3d 101

Major LEE a/k/a Major Lee Jr., Appellant

v.STATE of Mississippi, Appellee

NO. 2016-KA-01187-COA

Court of Appeals of Mississippi.

January 29, 2019

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, JACKSON

BEFORE GRIFFIS, C.J., WESTBROOKS AND TINDELL, JJ.

TINDELL, J., FOR THE COURT:

¶1. A Lowndes County jury found Major Lee guilty of possession of cocaine with the intent to sell and possession of marijuana. See Miss. Code Ann. § 41-29-139 (Rev. 2009). After allowing amendment to the indictment, the Lowndes County Circuit Court found Lee to be a habitual offender within the meaning of Mississippi Code Annotated section 99-19-81 (Rev. 2007) and a prior offender under the Uniform Controlled Substances Law, Mississippi Code Annotated section 41-29-147 (Rev. 2009). The trial court sentenced Lee to concurrent sentences of sixty years and six years and fined him a total of $ 2,006,000. Lee filed an unsuccessful pro se motion for a new trial or, alternatively, for a judgment notwithstanding the verdict (JNOV). Lee now appeals asserting two errors: prosecutorial misconduct and improper amendment to the indictment. Finding no error, we affirm.

FACTS

¶2. On August 10, 2006, a Columbus police officer attempted to lawfully stop a vehicle. The vehicle failed to stop and led police on a chase. Other officers joined in the vehicle pursuit. Upon reaching a dead end, the vehicle stopped, and Officers Brad Ray and Eric Lewis saw Lee run from the vehicle. Both officers saw Lee fleeing with a clear plastic bag on his right side. To Officer Ray, it looked like a bag of marijuana. Lee attempted to climb a fence but was apprehended in the process. The officers grabbed Lee when the upper half of his body was hanging over the fence with his legs on the officers' side of the fence. Upon apprehending Lee, the officers discovered he was no longer carrying the plastic bag.

¶3. After handcuffing Lee, Officer Ray found $ 480 in Lee's pocket. The officers also found a bag of marijuana hanging from the fence where they apprehended Lee. A corner of that bag could be seen caught in the slats on the officers' side of the fence. After retrieving the bag of marijuana and looking over the fence, Officer Lewis, a drug agent with the Columbus Police Department's narcotics division, saw and recovered a second smaller bag of what appeared to be cocaine. This second bag was on the ground on the side opposite the officers. The officers testified the second bag was small enough to have been concealed by Lee. Lee was charged with possession of marijuana and possession of cocaine with the intent to sell.

¶4. At trial, Officers Ray and Lewis identified Lee as the man they saw flee the traffic stop with a clear plastic bag before they pulled him off a fence and arrested him. Specifically, on the charge of possession of cocaine with intent to sell, the State presented evidence through police officers, who had experience with drug- and cocaine-related arrests, that the amount of drugs recovered had a street value between $ 1,500 to $ 2,500 and that the amount recovered was more than that possessed by a typical drug user. A forensic scientist from the Mississippi Crime Lab testified that the off-white, powdery substance in one of the bags was 20.44 grams of cocaine and that the plant material in the other bag was 97.2 grams of marijuana.

¶5. The jury found Lee guilty on both counts. During the sentencing phase of the trial, the trial court allowed amendment of the indictment to reflect Lee's status as a habitual offender under section 99-19-81 and a second or subsequent offender of the Mississippi Uniform Controlled Substance Law, section 41-29-147. On February 18, 2009, the trial court sentenced Lee as a habitual offender and second or subsequent drug offender to sixty years on Count I with a $ 2,000,000 fine, and to a concurrent six years on Count II with a $ 6,000 fine.

¶6. Lee filed a pro se motion for a new trial or, alternatively, for a JNOV with the circuit clerk on July 27, 2010. A copy of that motion was sent to the district attorney, but a copy was not sent to the circuit court. Consequently, the matter was not set for hearing, and Lee's motion was not ruled upon. In 2016, upon Lee's petition, the Mississippi Supreme Court required a response from the circuit court, the district attorney, and Lee's trial counsel regarding the absence of an order ruling on Lee's motion. This resulted in the circuit court ruling on Lee's pending motion for a JNOV. The motion was denied. Now on appeal from the circuit court's order, Lee's appellate counsel submitted a brief asserting two issues: (1) prosecutorial misconduct; and (2) untimeliness of the amended indictment for sentencing as a habitual offender. Concerned that an issue regarding this Court's jurisdiction may have existed, we asked for supplemental briefing from the parties on that issue. The parties each filed briefs addressing the potential jurisdiction issue, and the matter is now ripe for determination.

DISCUSSION

I. Jurisdiction

¶7. The record reveals that no motion for a new trial or a motion for a judgment notwithstanding the verdict was timely filed according to the deadlines of the Mississippi Rules of Civil Procedure, Rules 50 and 59. However, the Circuit Court of Lowndes County found excusable neglect for the delay and granted Major Lee leave to appeal out-of-time on August 24, 2016. Lee's notice of appeal was filed with the Supreme Court and the matter was docketed. The Supreme Court did not dismiss the appeal. The matter was assigned to the Court of Appeals with cause number 2016-KA-01187-COA on March 14, 2017. Therefore, we find this Court has jurisdiction to proceed with our determination on the merits of Major Lee's appeal.

II. Prosecutorial Misconduct

¶8. Lee argues that prosecutorial misconduct occurred on five separate occasions during his trial. On the first occasion, during voir dire, the State asked: "Is there anybody here who thinks we don't have a drug problem in Lowndes County, Mississippi?" Two further instances occurred in closing arguments as the defense and the State bantered over the jury's role in the trial:

[Defense:] [T]his is a question not of drugs, but a question of the power of the State, what it can roll – when it can roll over a person, and how a person is protected.

And later in response the State stated:

[State:] It is not the job of the jury to do what you [are] asked to do to protect this defendant. If it's your job to protect this defendant, then folks it's also your job to protect society and people in Lowndes County from people who sell drugs.

¶9. In another instance, the State offered its contention of what was required for a conviction for possession of cocaine with intent to sell, asking, "will everybody be able to follow that jury instruction and find this defendant guilty as charged?" In the final and fifth instance, Lee alleges that during closing argument, the State made several negative comments on his constitutional right to trial and his right to counsel.

¶10. On four of the five occasions, Lee failed to object at trial and did not raise these issues in his posttrial motion. Lee waived appeal of those claims by his failure to allege and develop such error in the record or his posttrial motion. See Porter v. State , 564 So.2d 31, 35 (Miss. 1990).

¶11. In Mississippi, the "rule governing preservation for review provides that if an appellant raises an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for a new trial." Ahmad v. State , 603 So.2d 843, 847 (Miss. 1992). We adhere to "the policy of giving the trial court, prior to appellate review, the opportunity to consider [any] alleged error." Id. Here, the record clearly reflects no objection by Lee to the remaining prosecutorial remarks noted in his appellate brief. Additionally, Lee's posttrial motion noted no such objections. Their inclusion in Lee's posttrial motion would have given the trial court at least one opportunity to review the alleged errors. Lee did not object to any of the now complained of remarks made during trial and the "failure to object contemporaneously at trial waives any claim of error on appeal." Gillett v. State , 56 So.3d 469, 520 (¶ 150) (Miss. 2010).

¶12. However, we may "review such a claim if the prosecutor's statement was so inflammatory that the trial judge should have objected on his own motion." O'Connor v. State , 120 So.3d 390, 399 (¶ 26) (Miss. 2013). In the present case, we do not find the prosecutor's comments, separately or collectively, to be so inflammatory that the trial court should have intervened on its own. Therefore, we find that Lee waived his opportunity for appeal on these newly asserted grounds of prosecutorial misconduct.

¶13. It was only on the first occasion that Lee's trial counsel objected to the State's comment. To this, the trial court advised the State to "move along." Lee argues this comment burdened the jury with the added responsibility to "send a message" and "protect the entire county." When it is alleged that the State's remarks rise to the level of prosecutorial misconduct, we must review the record and determine: (1) whether the referenced remarks were improper; and (2) if so, whether the referenced remarks "prejudicially affected the accused's rights." Spicer v. State , 921 So.2d 292, 318 (¶ 55) (Miss. 2006), abrogated on other grounds by O'Connor , 120 So.3d at 400-01 (¶¶ 28-29). "It must be clear beyond a reasonable doubt that, absent the prosecutor's [inappropriate] comments, the jury could have found the defendant guilty." Id.

¶14. Lee asks us to evaluate the prosecutor's remarks standing alone and out of context. He argues that the referenced remarks sent a message to the jury to consider the drug problem in Lowndes County and protect the...