Nevels v. State

• Decision Date: 19 August 2021
• Docket Number: NO. 2020-KA-00335-SCT,2020-KA-00335-SCT
• Parties: Johnny NEVELS a/k/a Johnny Waye Nevels a/k/a Johnny Wayne Nevels v. STATE of Mississippi
• Court: Mississippi Supreme Court

325 So.3d 627

Johnny NEVELS a/k/a Johnny Waye Nevels a/k/a Johnny Wayne Nevels

v.STATE of Mississippi

NO. 2020-KA-00335-SCT

Supreme Court of Mississippi.

August 19, 2021

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson, W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. Johnny Nevels appeals his convictions on three counts of drug possession. He claims he was entitled to a circumstantial evidence instruction, which the trial court refused. He also argues his trial should not have proceeded in his absence.

¶2. After reviewing Nevels's circumstantial-evidence-instruction claim, we conclude it is finally time to lay aside the false notion that, when it comes to circumstantial evidence cases, there is somehow a higher burden of proof than beyond a reasonable doubt. In reality, there is but one burden of proof in criminal cases—guilt beyond a reasonable doubt. Considering this certainty and longstanding precedent that circumstantial evidence is given the same weight as direct evidence and can support a jury's guilty verdict, we overrule our previous case law that has required a special instruction ramping up the burden of proof in circumstantial evidence cases. Because the jury in this case was properly instructed on the burden of proof, we find no reversible jury instruction error.

¶3. We also find no abuse of discretion in the trial court's determining Nevels had waived his right to be present and thus could be tried in absentia. That said, under our rules of criminal procedure, Nevels could not waive his right to be present at his later felony sentencing. Miss. R. Crim. P. 10.1(b)(2)(A). Thus, it was error for the trial court to sentence Nevels in absentia. We affirm Nevels's convictions on three counts of drug possession. But we vacate his sentences and remand this case to the trial court for resentencing. The court should sentence Nevels at a hearing during which he is present.

Backgrounds Facts & Procedural History

¶4. When the illegal drugs were discovered, Nevels was under supervised parole.

He had appeared at the Warren County parole office at 5:00 p.m., just as the office was closing and a parole agent was about to lock the door. The terms of Nevels's parole required he submit to drug testing. As Nevels was signing in, his parole agent stopped him and instructed him to take a drug urinalysis test.

¶5. On his way to the restroom, Nevels told the officer he could not provide a urine sample because "he had just gone to the bathroom before he pulled up." After fifteen minutes passed, the officer told Nevels he would be taken into custody for violating a condition of his supervision. A physical struggle ensued, and another officer was called in to help place Nevels in custody. Once subdued, the officers frisked Nevels for weapons. During the pat down, one parole agent "felt something in [Nevels's] pockets." Inside the pockets he found "a few bullets and some [car] fuses." He also found "a pair of car keys." But the agent did not see any cars in the parking lot. He then checked the adjacent MDOC parking lot and noticed one non-MDOC vehicle—a Cadillac with no license plate, which was later discovered to have no registration tied to the Vehicle Identification Number.

¶6. The agent used the key fob found in Nevels's pocket to see if it matched the Cadillac. It did. So the agent then called the Vicksburg Police Department to stand by while the vehicle was searched. This search revealed a switchblade knife, a canister filled with pink and yellow pills, and a bag containing syringes and a crystal-like substance.

¶7. Forensic testing showed half the pills found were amphetamine and the other half were oxycodone tablets. The crystal-like substance was 11.08 grams of methamphetamine. A grand jury returned a three-count indictment charging Nevels with (Count I) possession of amphetamine, (Count II) possession of oxycodone, and (Count III) possession of methamphetamine. Based on his felony criminal history, Nevels was indicted as a subsequent drug offender and as a habitual offender. Nevels was later released on bail.

¶8. Nevels appeared for two pretrial hearings. But he did not show up for his trial. The court tried him in absentia. And the jury found him guilty of all three counts. Nevels also did not appear on a later date at his sentencing hearing. At this hearing, the trial court sentenced him as a habitual offender to eight years on Count I, eight years on Count II, and twenty years with five years suspended on Count III. The judge ordered the sentences to be served consecutively.

Discussion

¶9. Nevels appeals his convictions. He argues the keys in his pocket that opened the Cadillac where the drugs were found were not direct evidence he possessed the car. So he maintains the judge wrongly refused his proposed circumstantial evidence instruction. He also insists the trial court erred by trying him in absentia.

I. Circumstantial Evidence Instruction

¶10. We first address Nevels's claim he was entitled to a circumstantial evidence instruction. In doing so, we finally put to rest the errant notion that there are two different burdens of proof in criminal cases—one for direct evidence cases and another for purely circumstantial cases.

¶11. We note that for years this Court has routinely tied its imposition of circumstantial evidence instructions to the incorrect notion that there is an "arguably stricter burden of proof placed upon the state in circumstantial evidence cases ."

Fisher v. State , 481 So. 2d 203, 214 (Miss. 1985) (emphasis added).¹ Indeed, Nevels's trial counsel, in arguing for a circumstantial evidence instruction, insisted the State's proposed instruction, which instructed the jury it must find Nevels guilty beyond a reasonable doubt, did not include the "correct burden." Instead, defense counsel argued for the additional burden, requiring the jury to find Nevels guilty "to the exclusion of every reasonable hypothesis consistent with innocence."

¶12. Essentially, the assumption underlying a circumstantial evidence instruction is that the State must do more than prove a defendant's guilt beyond a reasonable doubt in circumstantial evidence cases. But this notion is obviously not true. Without question, there is no higher criminal standard of beyond beyond a reasonable doubt. Rather, in all criminal cases, there is but one burden of proof—guilt beyond a reasonable doubt. Indeed, "[t]he standard of proof beyond a reasonable doubt ... ‘plays a vital role in the American scheme of criminal procedure,’ because it operates to give ‘concrete substance’ to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding." Jackson v. Virginia , 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979) (quoting In re Winship , 397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970) ). As Justice Banks pointed out three decades ago:

The concept of proof beyond a reasonable doubt is fully embodied in our U.S. Constitution. In Re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In Winship , the Supreme Court held that the reasonable doubt standard was constitutionally required under the Due Process Clause. In making this holding, the Court reviewed: the acceptance of the practice in common law jurisdictions, the long use of the standard by the Court, and the need to reduce the risk of convicting the innocent. 397 U.S. at 361-64, 90 S.Ct. 1068 ....

No court, however, has found a constitutional basis for a heightened burden of proof in circumstantial evidence cases. Whether proof is made by circumstantial or by direct evidence, the state must show guilt beyond a reasonable doubt.

King v. State , 580 So. 2d 1182, 1193 (Miss. 1991) (Banks, J., concurring) (emphasis added). The simple truth is that the heightened standard of proof has no foundation in our Constitution.

¶13. This Court's approach has for years created confusion for trial judges who are called to distinguish between what is often hard to discern—whether evidence is "direct" or "circumstantial." That appears to have been the debate in this case—was the evidence that Nevels possessed the keys to the Cadillac in his pocket direct or circumstantial evidence of his dominion and control over the drugs inside? As this Court has acknowledged, answering such questions is not always easy. "In many cases, the proof does not fall neatly into one of these evidentiary categories." Williams v. State , 305 So. 3d 1122, 1129 (Miss. 2020). "There are too many shades of gray." Keys v. State , 478 So. 2d 266, 268 (Miss. 1985). So, as in this case, trial judges have routinely been forced to make their best guess and wait to see if their subjective call turns out to be in line with a majority of this Court.

¶14. But most important, this heightened-standard-of-proof fiction conflicts with this Court's clear and longstanding position that circumstantial evidence and direct evidence carry the same weight. Williams , 305 So. 3d at 1129 ("Evidence is either direct or circumstantial. And both types of evidence carry the same weight."); Cardwell v. State , 461 So. 2d 754, 760 (Miss. 1984) ("Circumstantial evidence is entitled to the same weight and effect as direct evidence and this Court has upheld convictions based solely on circumstantial evidence."); Bogard v. State , 233 So. 2d 102 (Miss. 1970) ("[I]t is pointed out that ‘circumstantial evidence, ordinarily, is entitled to the same effect and weight as direct evidence and may, in the concrete, be the more reliable and stronger.’ " (quoting 23 C.J.S. Criminal Law § 907 (1961) )). Basically, what this Court has done over the years is create two different categories—cases in which the State must prove guilt beyond a reasonable doubt and cases in which the State must additionally prove guilt to the exclusion of every reasonable...