Pulliam v. State
| Decision Date | 04 November 2021 |
| Docket Number | NO. 2020-KA-01018-SCT,2020-KA-01018-SCT |
| Citation | 328 So.3d 93 |
| Parties | Undra PULLIAM a/k/a Andre Pulliam v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLANT: JAMES H. POWELL, III, Durant
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON KAY HARTMAN
BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. Undra Pulliam was granted an out-of-time appeal of his 2016 conviction for the sale of crack cocaine. After review of Pulliam's appeal, we find neither his challenge to the weight of the evidence nor his attack on his habitual offender sentence have merit. We affirm Pulliam's conviction and sentence.
Background Facts and Procedural History
¶2. James White, a confidential informant working with North Mississippi Narcotics Unit Agents Chris Brown and Kevin Warren, conducted a controlled purchase of crack cocaine from Pulliam. At the pre-buy meeting, the agents and White discussed the planned purchase from Pulliam. They searched White's vehicle for contraband and provided him with $350 to make the purchase. White was fitted with audio and video recording devices to capture the buy. Tailed by the agents, White drove to the buy location—a house on Terry Road in Tupelo. The agents parked two blocks away.
¶3. A few minutes after entering the house, White left the buy location and called the agents. They met him a block or two away. White handed Agent Brown a bag containing crack cocaine, and the two briefly discussed the controlled buy.
¶4. The State charged Pulliam with the sale, transfer, or distribution of more than two but less than ten grams of crack cocaine in violation of Mississippi Code Section 41-29-139 (Rev. 2018). Pulliam had been convicted previously of other felony cocaine offenses. So the day before trial, the State sought an amendment to Pulliam's indictment to charge him as a habitual offender.1 See Miss. Code Ann. § 99-19-81 (Rev. 2015).2
¶5. The informant, White, died before trial, making him unavailable to testify. The State introduced the video of White's controlled buy. The video and audio showed White entering Pulliam's house. The two shook or slapped hands. And after this, cash money is visible in Pulliam's hand. The video showed Pulliam counting money at a table. A clear, plastic bag of a substance believed to be crack cocaine is visible on the table. Pulliam then, with the money in his left hand, shook or slapped White's hand again. While shaking hands, White moved toward the plastic bag on the table. There is audio of what sounds like plastic being grabbed. When the table is visible again, the baggie is gone.
¶6. At trial, Agent Brown testified about the buy location and video. Agent Brown identified Pulliam. Another law enforcement officer, Beth Smith, had attended high school with Pulliam. She also positively identified him in the video.
¶7. Agent Brown photographed the baggie containing a large white rock. He field tested the substance and determined it was crack cocaine. Alicia Waldrop, a forensic scientist specializing in drug analysis at the Tupelo Crime Lab, also testified. She verified the substance was crack cocaine, weighing 4.95 grams. Pulliam testified in his own defense. He denied exchanging drugs for money with White.
¶8. The jury found Pulliam guilty. The trial judge sentenced him as a habitual offender to twenty years’ imprisonment.
¶9. Two years later, Pulliam filed a postconviction petition in the trial court seeking an out-of-time appeal. But the trial judge denied him an out-of-time appeal. The Court of Appeals reviewed this denial and reversed and remanded for an evidentiary hearing. Pulliam v. State , 282 So. 3d 734, 737 (Miss. Ct. App. 2019). It did so based on Pulliam's unrefuted allegation that he had not been advised of his right to appeal. Id. at 737. On remand, on August 17, 2020, a successor trial judge—Judge Kelly L. Mims—heard Pulliam's request,3 after which he entered an order granting Pulliam thirty days to file an out-of-time appeal. Pulliam filed the present appeal.
Discussion
¶10. In his out-of-time appeal, Pulliam challenges his cocaine sale conviction and his habitual offender sentence.
¶11. Pulliam seeks a new trial, first arguing the jury's guilty verdict was against the weight of the evidence. As support, Pulliam does not raise any error relating to admission of the video of the purported drug sale. Instead, he cites the lack of an eyewitness to the sale and the quality of the video. He also claims improper bolstering by Agent Brown contributed to his guilty verdict.
¶12. When reviewing challenges to the weight of the evidence, this Court views the evidence "in the light most favorable to the verdict." Little v. State , 233 So. 3d 288, 292 (Miss. 2017). A guilty verdict will only be disturbed "when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (quoting Lindsey v. State , 212 So. 3d 44, 45 (Miss. 2017) ).
¶13. Viewed in the light most favorable to his guilty verdict, Pulliam's cocaine sale conviction must stand. Because the informant had died before trial, he was unavailable to testify. But Agent Brown did testify. He described the pre-buy meeting where he searched White and his vehicle, provided him with $350 in buy money, and wired him with audio and video equipment. The State also offered the video and still photographs taken from it. The jury watched the video, which showed White's interaction with Pulliam and cash money. The video also captured the two discussing "hard" and "soft," which based on Agent Brown's training and experience meant crack and powder cocaine, respectively. Also prominent in the video is what appears to be a baggie of crack cocaine on the table. The small plastic baggie seen on Pulliam's table was tied in a manner to have what the State described as a "tail" on it. The baggie was gone after the two slapped hands and White began to exit the house. White left the buy site and then met Agent Brown a block away. He turned over the more than two grams of crack cocaine to Agent Brown. Brown photographed the apparent bag of cocaine. And the photo showing the "tail" on the baggie was admitted in evidence and considered by the jury. Two agents identified Pulliam in the video, and a lab analyst verified the substance submitted to her was 4.95 grams of crack cocaine.
¶14. As part of his weight of the evidence challenge, Pulliam now suggests Agent Brown improperly bolstered this evidence by pitching White as a trusted informant and provided improper opinion testimony by describing what he saw in the video as a drug deal. But Pulliam did not object to Agent Brown's testimony at trial. And "[t]his Court repeatedly has held that a failure to object contemporaneously at trial forfeits an issue on appeal." Potts v. State , 233 So. 3d 782, 788 (Miss. 2017) (citing Hall v. State , 201 So. 3d 424, 428 (Miss. 2016) ). Forfeited error is reviewed for plain error only. And "the Court's decision to utilize plain error is discretionary, not obligatory." Flynt v. State , 183 So. 3d 1, 14 (Miss. 2015). Thus, the fact a particular error may have occurred does not mandate plain error analysis. Instead, the doctrine is applied sparingly—"only in situations when ‘a defendant's substantive or fundamental rights are affected.’ " Green v. State , 183 So. 3d 28, 31 (Miss. 2016) (quoting Flora v. State , 925 So. 2d 797, 811 (Miss. 2006) ). This Court may only appropriately exercise its discretionary review when failure to do so would result in "a manifest miscarriage of justice" or if there is an error that " ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " Hall , 201 So. 3d at 428 (quoting Brown v. State , 995 So. 2d 698, 703 (Miss. 2008) ).
¶15. We need not delve deep into the informant-bolstering claim or fact-versus-expertopinion question concerning Agent Brown. First, there was no objection to Agent Brown's description of the meeting captured in the video. And there is certainly no requirement that Pulliam's attorney object to it. Trial strategy plays a great deal in an attorney's decision whether to object with an eye on excluding testimony. To the extent Pulliam is arguing his attorney was constitutionally deficient for not objecting to the now-complained-of testimony, we note the strong presumption that a lawyer's trial conduct falls within "the wide range of reasonable professional assistance." Carr v. State , 873 So. 2d 991, 1003 (Miss. 2004). With respect to this general presumption, this Court has held that an attorney's decision whether to object " ‘fall[s] within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim." Id. (quoting Cole v. State , 666 So. 2d 767, 777 (Miss. 1995) ).
¶16. Viewing the circumstances as they existed at the trial, this Court makes "every effort ... to eliminate the distorting effects of hindsight" and "indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland v. Washington , 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L.Ed. 2d 674 (1984). From opening statement to closing argument, Pulliam's attorney hammered on the State's lack of an eyewitness. Allowing Agent Brown to describe what he saw in the video as a drug deal, then obtaining repeated admissions from him that, in fact, he did not witness the events and saw no drugs or money change hands, certainly lined up with that tactic.
¶17. Still, the bottom line is that this case presented a classic jury question. And in addition to Agent Brown's testimony, there was indeed a video. What the video actually depicted and the quality or worth of the video was for the jury to decide. Mujahid v. State , 324 So. 3d 275, 280 (Miss. 2021). But judging from the...
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