Pinter v. State
| Decision Date | 06 June 2017 |
| Docket Number | NO. 2016–KA–01029–COA,2016–KA–01029–COA |
| Citation | 221 So.3d 378 |
| Parties | Robert Andy PINTER, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶ 1. Robert Andy Pinter was convicted of possession of at least one-tenth of a gram but less than two grams of methamphetamine, possession of less than thirty grams of marijuana, and possession of less than 100 dosage units of alprazolam (Xanax) and sentenced to serve a total of four years in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender. On appeal, Pinter argues that (1) his wife's testimony that he had been known to use marijuana and methamphetamine rises to the level of plain error or ineffective assistance of counsel; (2) the trial judge erred in denying his motion to suppress evidence of the drugs at issue and his alleged statement to police; (3) the evidence is insufficient to support the conviction or, alternatively, the verdict was against the overwhelming weight of the evidence; and (4) his sentence as a habitual offender is illegal and plain error.
¶ 2. We find no error in Pinter's trial and therefore affirm his convictions. We also hold that the trial court did not commit plain error by finding that Pinter is a habitual offender. Therefore, we also affirm Pinter's sentence as a habitual offender on Count I, possession of methamphetamine. However, the State concedes error insofar as the trial court sentenced Pinter as a habitual offender on Count III, possession of alprazolam, a misdemeanor offense that is outside the scope of the habitual offender statute. Therefore, we remand for resentencing on Count III only.
FACTS
¶ 3. On June 15, 2015, at approximately 10:45 a.m., Sebastopol Chief of Police Daniel Ogletree was observing traffic on Highway 21 from the parking lot of the Carquest across from the Piggly Wiggly in Sebastopol. A Nissan Sentra passed by, and Chief Ogletree observed that its driver was not wearing a seatbelt, so he initiated a traffic stop. Chief Ogletree approached the vehicle, explained the reason for the stop, and asked the driver for his license. The driver, Pinter, said that the seatbelt was broken and that his license was suspended. Pinter gave Chief Ogletree his Mississippi Identification Card. Chief Ogletree called the Scott County Sheriff's Department, confirmed that Pinter's license was suspended, and also learned that there was an active warrant for Pinter's arrest. Chief Ogletree then placed Pinter in handcuffs and under arrest and moved Pinter to the backseat of his patrol car.
¶ 4. Chief Ogletree then conducted an inventory search of the Sentra. In the trunk, he found two bags containing a crystal-like substance that was later determined to be methamphetamine, with a total combined weight of about half a gram; two bags containing a green leafy substance, later determined to be marijuana, with a total combined weight of approximately twenty-two grams; and a bag containing twenty-five pills, later determined to be alprazolam (Xanax ). The drugs were on top of a large, open tool bag. Chief Ogletree testified that he returned to his patrol car and read Pinter his Miranda rights from a card that Chief Ogletree kept in his wallet. Chief Ogletree testified that Pinter listened and then stated that he understood his rights. Pinter did not ask for a lawyer or invoke his right to remain silent. Chief Ogletree showed Pinter the drugs and asked why he had them in the trunk of the car. According to Chief Ogletree, Pinter responded that "he liked the way that it made him feel when he ... used the drugs."
¶ 5. Pinter was indicted for possession of at least one-tenth of a gram but less than two grams of methamphetamine, possession of less than thirty grams of marijuana, and possession of less than 100 dosage units of alprazolam. His case proceeded to a jury trial on June 6, 2016. Chief Ogletree and a forensic scientist from the Mississippi Crime Laboratory testified for the State.
¶ 6. After the State rested, Pinter's wife, Hope Pinter, testified that she and Pinter lived in a camper on a lot outside of Sebastopol. Hope's mother and sister and their families also lived on the lot in a separate camper and trailer. A total of nine adults lived on the lot, and all had access to and drove the Sentra, which was registered to Hope's mother. Hope testified that her sister and her sister's boyfriend had used the car the night before Pinter's arrest and had returned that morning. On cross-examination, Hope acknowledged that Pinter worked in construction and owned a large bag of tools. Without objection, she also testified as follows:
¶ 7. Pinter then took the stand in his own defense. Pinter testified that he did not see Chief Ogletree remove the drugs from the Sentra, and he denied that the drugs belonged to him. Pinter also denied that he owned a tool bag. He testified that he only owned a "tool apron." Pinter also denied that Chief Ogletree read him his Miranda rights or that he ever told Chief Ogletree that the drugs were his or that they made him feel good. Pinter testified that the Sentra belonged to his mother-in-law and that he only used it when he needed it. He testified on direct examination that he had used marijuana and methamphetamine. On cross-examination, he also admitted that he had used Xanax in the past. Pinter claimed that he had "no knowledge" whatsoever as to who owned the drugs at issue in this case.
¶ 8. The jury found Pinter guilty on all three counts. At Pinter's sentencing hearing, the State offered to introduce certified copies of judgments reflecting seven prior felony convictions: two for grand larceny, three for burglary of a dwelling, and one each for aggravated assault and escape from a jail. Pinter's counsel specifically stated that he did not object to the admission of the documents, but the documents were never formally admitted into evidence. The court then found that Pinter was a habitual offender, see Miss. Code Ann. § 99–19–81 (Rev. 2015), and sentenced him to serve a total of four years in MDOC custody, without eligibility for probation or parole.1 Pinter subsequently filed a motion for a new trial, which was denied, and a notice of appeal.
ANALYSIS
¶ 9. As stated at the outset of this opinion, Pinter raises four issues on appeal. We address these issues, three of which include two sub-issues, below.
¶ 10. Pinter first argues that the admission of his wife's testimony that he had "been known to use" marijuana and methamphetamine (see supra ¶ 6) constitutes plain error or that his attorney's failure to object to these questions constitutes ineffective assistance of counsel. For the reasons that follow, we conclude that the testimony does not rise to the level of plain error. We decline to address any ineffective assistance claim without prejudice to Pinter's right to raise the issue in a properly filed motion for post-conviction relief.
¶ 11. Pinter argues that evidence of his prior drug use was inadmissible under Mississippi Rules of Evidence 404(b) and 403 and that the trial court committed "plain error" by failing to sua sponte direct Pinter's wife not to answer questions on the subject. We conclude that Pinter fails to demonstrate "plain error" for multiple reasons.
¶ 12. First, "in order to determine if plain error has occurred, we must determine if the trial court has deviated from a legal rule , whether that error is plain, clear, or obvious, and whether the error has prejudiced the outcome of the trial." Green v. State , 183 So.3d 28, 31 (¶ 6) (Miss. 2016) (emphasis added; brackets and quotation marks omitted). We recently addressed a similar claim of "plain error" based on hearsay testimony admitted without a contemporaneous objection. There, we stated:
No "legal rule" requires a trial judge to exclude hearsay in the absence of an objection. Trial judges are not expected to strike or exclude hearsay sua sponte. Whether to object is a decision left to the discretion of counsel, who may have strategic reasons for not objecting.... [A] trial judge [is not required] to insert herself into the role of counsel and sua sponte raise hearsay objections on the defendant's behalf (or risk subsequent reversal based on "plain error"). Because no "legal rule" requires that of a trial judge, the judge in this case committed no error—plain or otherwise—by not acting sua sponte to prevent or strike [hearsay] testimony.
Shaheed v. State , 205 So.3d 1105, 1112 (¶ 21) (Miss. Ct. App. 2016).
¶ 13. The same reasoning applies to testimony about Pinter's prior drug use. Such testimony may be admissible depending on its purpose, see M.R.E. 404(b)(2), and whether to object to it "is a decision left to the discretion of [trial] counsel, who may have strategic reasons for not objecting." Shaheed , 205 So.3d at 1112 (¶ 21). As such, the trial judge in this case did not deviate from any "legal rule" by not inserting himself into the role of defense counsel and striking or prohibiting the testimony sua sponte. No error, plain or otherwise, was committed.
¶ 14. Moreover, precisely because there was no objection, we cannot say whether Hope's testimony might have been elicited for a permissible purpose. Even if there had been a contemporaneous objection, evidence of Pinter's prior drug use could have been admitted for any purpose other than proving his character in order to show that he acted in conformity therewith. M.R.E. 404(b). "When, as here, a defendant does not physically possess the illegal drugs, the State must prove constructive possession of the drugs in...
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