Miller v. State

• Citation: 634 So.2d 127
• Decision Date: 17 March 1994
• Docket Number: No. 91-KA-00201,91-KA-00201
• Parties: Rudolph MILLER, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 127

634 So.2d 127

Rudolph MILLER, Jr. v. STATE of Mississippi.

No. 91-KA-00201.

Supreme Court of Mississippi.

March 17, 1994.

Arthur D. Carlisle, Pascagoula, for appellant.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

En Banc.

SMITH, Justice, for the Court:

Rudolph Miller, Jr. was tried and convicted in the Circuit Court of Harrison County, for the crime of possession of cocaine with intent to deliver, and received a sentence of ten years with three years suspended.

Aggrieved, Miller appeals, assigning errors by the trial court as follows:

I. THE LOWER COURT ERRED IN NOT SUSTAINING APPELLANT'S MOTION

FOR DIRECTED VERDICT AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER.

II. THE LOWER COURT ERRED IN NOT SUSTAINING APPELLANT'S MOTION IN LIMINE SEEKING TO PROHIBIT ELICITATION OF TESTIMONY CONCERNING OUTSTANDING WARRANTS FILED AGAINST APPELLANT.

III. THE LOWER COURT ERRED IN NOT SUSTAINING APPELLANT'S MOTION FOR A DIRECTED VERDICT AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE STATE'S THEORY OF CONSTRUCTIVE POSSESSION.

We have carefully examined Miller's assignments of error and find that issues I and III warrant discussion. Although the evidence is insufficient under the facts of this case to support a conviction and sentence for possession with intent to distribute cocaine, there is sufficient evidence to support a finding of possession. We therefore remand this case for sentencing on the lesser included offense of possession of cocaine.

FACTS

While on routine patrol, Officer Larry Akins, of the Biloxi Police Department, saw Rudolph Miller, whom he recognized. Following a verification by radio, Officer Akins arrested Miller on two outstanding warrants. Officer Akins followed procedure and did a pat-down inspection of Miller for concealed weapons and then placed Miller's hands behind him and handcuffed him. Officer Akins testified that he found no weapon, but did feel what he thought was a matchbox, some keys, and some coins in Miller's pants pocket. Officer Akins placed Miller in the back seat behind the driver's side of his patrol car and took him to the Biloxi Police Department.

Officer Akins exited his vehicle, took Miller out, locked the vehicle and took Miller into the police station. Miller had no matchbox on his person in the police station. Officer Akins returned, unlocked his patrol car and, following routine procedure, searched the back seat area where Miller had been seated and found under the seat a matchbox containing twelve "rocks," later identified as crack cocaine.

Officer Akins testified that he observed Miller squirming around in the back seat while enroute to the station. At the time that he was taken from the vehicle, Miller had managed to move his hand around to his left pocket and appeared to be reaching in the pocket. Once inside the police station, Investigator Daniel Kent Jones searched Miller and found $143 in currency on him.

Officer Akins testified that he followed the standard procedure when he came on duty of searching the patrol car and also of again searching the patrol car after he had taken in the one previous arrestee that day. Officer Akins testified that he locked his patrol car while he took Miller into the station. When he returned to the car, he unlocked it and at that time found the matchbox wedged down in the back seat toward the door. Officer Akins testified that he knew there was nothing in the car prior to him placing Miller in the back seat and transporting him to the police station.

Officer Akins further testified that no one else had access to the patrol car during his shift and that he locked the car while he took Miller into the police station.

Lt. Richard O'Bannon of the Special Crime Unit, a narcotics division of the Biloxi Police Department, testified that he had been involved in hundreds of drug related cases. He stated that crack cocaine is typically carried in matchboxes; that a user normally did not have more than one or two rocks on his person; and that the amount attributed to Miller was large enough to indicate an intent to distribute. He further related that crack cocaine is smoked by use of a pipe. The twelve rocks, in his opinion, would yield a four hour high if smoked continuously.

Miller called no witnesses and elected not to testify on his own behalf. The case was submitted to the jury on the theory that Miller had constructive possession of the cocaine from which an inference could be made that he intended to distribute it to others because of the quantity and nature of the contraband.

DISCUSSION

I.

Miller contends that the lower court erred in not sustaining his motion for directed verdict as the evidence was insufficient to support a conviction for possession of a controlled substance with intent to deliver.

On the question of intent to deliver a controlled substance, this Court has faced some difficulty when confronted primarily with quantity alone as evidence of intent. In Edwards v. State, 615 So.2d 590, 595 (Miss.1993) this Court stated, "Quantity, standing alone, might be insufficient to demonstrate an intent to distribute beyond a reasonable doubt." As this Court stated in Stringfield v. State, 588 So.2d 438, 440 (Miss.1991):

[P]roof of possession with an intent to distribute or sell should not be based solely upon surmise or suspicion. There must be evidentiary facts which will rationally produce in the minds of jurors a certainty, a conviction beyond reasonable doubt that the defendant did in actual fact intend to distribute or sell the cocaine, not that he might have such intent. It must be evidence in which a reasonable jury can sink its teeth.

In the Edwards case, possession of 47 individual doses of crack cocaine along with Edwards' admission and the surrounding circumstances were found to be sufficient proof of intent. In the present case, there was testimony that most drug users would only have a couple of rocks for their personal use. However, there was nothing to connect Miller with the possibility that the drugs were intended for sale. While Miller was arrested on outstanding warrants for sale of cocaine, the jury did not have this information presented to them. The testimony of Lt. Richard O'Bannon that the quantity was more than a typical user would have and would yield a four-hour high if smoked continuously is not sufficient to take this case out of possession alone.

In numerous cases, where the Court has found the proof insufficient to support a charge of possession with intent to distribute, this Court has remanded the case for resentencing on the lesser included offense of possession. Jowers v. State, 593 So.2d 46 (Miss.1992); Thomas v. State, 591 So.2d 837 (Miss.1991); Stringfield v. State, 588 So.2d 438 (Miss.1991); Jackson v. State, 580 So.2d 1217 (Miss.1991).

In Jowers, the Court stated:

However, the evidence clearly establishes that Jowers was guilty of the lesser included offense of possession of marijuana. The jury had more than sufficient evidence to find her guilty of that charge. Although the jury was presented with conflicting testimony concerning Jowers' possession of the marijuana, the jury resolved that conflict in favor of the State, and the jury is the sole judge of the weight and credibility of the witness.

Jowers, at 47, citing Dixon v. State, 519 So.2d 1226, 1228 (Miss.1988).

In the case sub judice, Miller's possession of the cocaine was resolved by the jury in favor of the State. The proof was sufficient by the State to support a charge of possession. There is no need for another jury to decide this issue, and this case should only be remanded for resentencing on possession.

III.

Miller argues that the lower court erred in not sustaining his motion for a directed verdict as the evidence was insufficient to support the State's theory of constructive possession.

Constructive possession has been the subject of frequent interpretation by this Court. Actual physical possession need not be shown for conviction if the contraband is in the constructive possession of the accused. If the substance is subject to the defendant's dominion or control, it is said to be within the his constructive possession.

In Curry v. State, 249 So.2d 414, 416 (Miss.1971), this Court stated:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession.

The proof showed that Miller was in close proximity to the crack cocaine since it was found where he had been seated as the only passenger in the back seat of the police vehicle. The vehicle had been searched prior to his...