Long v. State
| Decision Date | 20 January 2011 |
| Docket Number | No. 2009-KA-01861-SCT.,2009-KA-01861-SCT. |
| Citation | 52 So.3d 1188 |
| Parties | Richard Leon LONG v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Office of Indigent appeals by George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appellee.
Before GRAVES, P.J., RANDOLPH and PIERCE, JJ.
¶ 1. On May 13, 2008, Richard Long was indicted for selling a controlled substance within 1,000 feet of a public park. After a one-day trial, Long was found guilty and sentenced as an habitual offender to life imprisonment without the possibility of parole. On appeal, Long raised several issues. However, because the issues lack merit, this Court affirms Long's conviction and sentence.
¶ 2. On October 28, 2009, Long was tried for the sale of a controlled substance, diazepam (Valium), within 1,000 feet of a public park. At trial, Agent Jerry Rodgers of the Olive Branch Narcotics Division testified that he was acting in an undercover capacity when he met Long. At this initial meeting, Rodgers arranged to purchase Valium from Long. Rodgers also supplied Long with his phone number so that Long could contact him when the Valium pills were available. After meeting with Long, Rodgers conducted an initial investigation and discovered that Long lived approximately 100 feet from a fence that separated the Olive Branch City Park and the trailer park where the purchase would take place.
¶ 3. On January 22, 2009, Long called Rodgers to notify him that he had the pills and was ready to sell them as soon as the funds were available to Rodgers. Rodgersthen notified his narcotics team that it was time to set up the controlled buy. The narcotics team wired Rodgers for audio and video, which began recording once Rodgers left to meet Long. Once Rodgers was in route to the buy location, he received a phone call from Long confirming the time and place they were to meet.
¶ 4. As Rodgers pulled into the trailer park, he noticed Long outside his trailer, flashing his vehicle's lights. Rodgers parked next to Long's vehicle. He then stepped out of his vehicle to carry out the transaction. Rodgers and Long had engaged in a short conversation when Long produced a small sack of pills. Rodgers then counted out $100 and the exchange was made. After the exchange, Long told Rodgers that he would be getting some more pills in and told Rodgers to give him a call. After the transaction was complete, Rodgers got back into his vehicle and drove off.1
¶ 5. Rodgers and the narcotics team then met at the Olive Branch Narcotics Division, where the bag of pills was kept until it was delivered to the Mississippi Crime Laboratory by Officer Cliff Roberts of the Olive Branch Police Department. Once at the lab, Erik Frazure, a forensic chemist specializing in drug analysis, tested the pills Rodgers had bought from Long. Frazure concluded that the pills were, in fact, diazepam, which is sold under the trade name, Valium, a schedule IV controlled substance.
¶ 6. At trial, the prosecution rested its case-in-chief after Frazure's testimony. The defense then moved the trial court for a directed verdict, alleging that the prosecution had failed to prove a prima facie case that Long had sold a controlled substance within 1,000 feet of a public park. The trial court subsequently denied Long's motion, finding that the prosecution had met the requirements for the matter to go to the jury. Following the trial court's denial, the defense rested its case-in-chief without presenting any evidence. Counsel for both sides then gave closing arguments. Subsequently, the jury found Long guilty of selling a controlled substance within 1,000 feet of a public park. The trial court then excused the jury before the sentencing phase of the trial.
¶ 7. At sentencing, the prosecution presented argument alleging that Long had been indicted as an habitual offender under Mississippi Code Section 99-19-83, citing Long's two prior felonies: (1) sexual assault on a child, and (2) aggravated incest with his own child. See Miss.Code Ann. § 99-19-83 (Rev.2007). Regarding the conviction for aggravated incest with his own child, Long contested and argued, According to Long, the girl was not his daughter at the time of the offense, she was the daughter of a woman that he married three years later. However, the trial judge found that the certified documents from Colorado:
The trial court, out of precaution, proceeded by performing a proportionality analysis. The trial court stated:
¶ 8. On November 3, 2009, Long filed his motion for judgment notwithstanding the verdict or for a new trial. On December 9, 2009, the trial court denied Long's motion. Thereafter, Long timely filed his appeal.
¶ 9. Long raises five issues on appeal:
¶ 10. Based on the record before this Court, we affirm Long's conviction and sentence.
¶ 11. In determining whether a jury verdict is against the overwhelming weight of the evidence, "this Court will only overturn a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Boyd v. State, 977 So.2d 329, 336 (Miss.2008) (citing Taggart v. State, 957 So.2d 981, 987 (Miss.2007)). When making this determination, "the evidence should be weighed in the light most favorable to the verdict." Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). If, in viewing the evidence in the light most favorable to the verdict, allowing the verdict to stand would constitute an unconscionable injustice, the proper remedy is to grant a new trial. Bush, 895 So.2d at 844-845.
¶ 12. Viewing the evidence in the light most favorable to the State and resolving all reasonable inferences in favor of the State, this Court finds that the jury verdict was not against the overwhelming weight of the evidence. The surveillance video makes clear the fact that Long sold Valium to Rodgers on January 22, 2009, at the location alleged in the indictment.
¶ 13. Long argued that the surveillance video was unreliable because it did not show any drugs or money being exchanged and the alleged seller was shown only for a brief moment. Although the man selling the Valium was shown on the video for only a brief moment, Rodgers testified that the man on the video was Long. Furthermore, while no money or drugs are seen on the video, Rodgers testified that he counted out $100 and exchanged the money for the pills.2 The pills were then delivered to the Mississippi Crime Laboratory, where Erik Frazure determined that the pills were, in fact, Valium, a controlled substance.
¶ 14. Although the surveillance video fails to show any money or drugs being exchanged, Rodgers testified that Long sold Valium to him for $100. Therefore, this Court finds that the verdict is not against the overwhelming weight of the evidence. Accordingly, we affirm the trial court's denial of Long's motion for judgment notwithstanding the verdict and for a new trial.
¶ 15. Long complains that the prosecutor's closing remarks equated to a "send-a-message" argument, which this Court consistently has held to be improper. Brown v. State, 986 So.2d 270 (Miss.2008). The language specifically complained of reads as follows:
You know, its not a murder case, but the sale of drugs, the illegal sale of drugs is important, ladies and gentlemen. It's important to control it, and you do so by stopping those that get caught selling drugs illegally, which is exactly what this man did. The defendant sold drugs illegally and—and h...
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...is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.’ ” Long v. State, 52 So.3d 1188, 1195 (Miss.2011) (citations omitted). “The trial court's rulings are presumed correct, and this presumption will prevail unless the record sho......
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...unusual punishment. ¶61. An appellate court generally will not disturb a sentence where it does not exceed the statutory maximum. Long v. State, 52 So. 3d 1188, 1197 (¶31) (Miss. 2011) (citing Cummings v. State, 29 So. 3d 859, 861 (¶4) (Miss. Ct. App. 2010)). But "if a sentence is grossly d......