Roberson v. State

• Decision Date: 26 February 1992
• Docket Number: No. 89-KA-0595,89-KA-0595
• Citation: 595 So.2d 1310
• Parties: Lewis Benjamin ROBERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1310

595 So.2d 1310

Lewis Benjamin ROBERSON v. STATE of Mississippi.

No. 89-KA-0595.

Supreme Court of Mississippi.

Feb. 26, 1992.

Robert D. Jones, Jordan & Jones, Meridian, for appellant.

Mike C. Moore, Atty. Gen., Patricia W. Sproat, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the court:

Lewis Benjamin Roberson was convicted by the Circuit Court of Lauderdale County, Mississippi, for the possession of cocaine with the intent to sell, barter, transfer, or otherwise dispense or deliver in violation of Miss.Code Ann. Sec. 41-29-139(a)(1) (Supp.1990). Roberson was sentenced to thirty (30) years in the Mississippi Department of Corrections, with five (5) years suspended and five (5) years on probation. Roberson was also fined $50,000.00.

Roberson assigns the following six errors:

1. The trial court erred in levying an excessive sentence, in violation of local custom, which denied Roberson an opportunity to present meliorative factors to the court, and which was disproportionate to other sentences given by the trial court;

2. The trial court erred in allowing into evidence inflammatory and prejudicial statements by State's witnesses;

3. The trial court erred in allowing Officer Buchanan's testimony as to alleged oral statements made by Roberson;

4. The trial court erred in denying Roberson's motion to suppress the fruits of the search warrant issued on September 19, 1987;

5. The trial court's conviction of Roberson was against the overwhelming weight of the evidence, and was unsupported by the evidence; and

6. The trial court erred in denying Roberson's post-judgment motions.

On the night of September 18, 1987, Officers Bobby Davis, Michael J. Hoadley, and Andrew Emerson of the Meridian Police Department, were engaged in the surveillance of Apartment C-9 at the Stratford Manor Apartments for suspected drug activity. Davis lived in the Stratford Manor Apartments and his apartment was approximately twenty-five feet east of Apartment C-9, and he had been watching Apartment C-9 from his apartment since September 3, 1987. Officer Davis saw a lot of men that he knew associated with drugs going in and out of the apartment. The only person Davis saw frequent the apartment was Lewis Roberson.

Davis had also seen Roberson at a "Super Stop" store, adjacent to Stratford Manor. A clerk of that store informed Davis that he suspected Roberson of being engaged in drug activity. Davis never actually saw Roberson do anything wrong at the "Super Stop" but because of these incidents Davis suspected drug activity and arranged surveillance of the apartment.

On the night of September 17, the three officers saw only one black male in the apartment. There was no other activity. On the night of September 18, the officers had been on the stake out for approximately three hours when they saw Joe Griffin enter Apartment C-9. When Griffin came out of the apartment and walked to his car, Emerson approached him and asked to search him. Griffin consented to the search and Emerson found four rocks of cocaine and placed Griffin under arrest.

Emerson alone or with Officer Hoadley (there was a conflict in this testimony at trial) went to obtain a search warrant and left Officer Davis to watch Apartment C-9. Davis knew that someone else was in the apartment after Griffin was arrested because the lights were on before Griffin arrived and went out after Griffin left. When Emerson returned with the warrant, Patrolman Warren Buchanan, a uniformed officer with the Meridian Police Department, was called in to execute the search warrant. Buchanan knocked on the door and when no one answered, he kicked the door in and the officers entered the apartment, with their guns drawn. Inside they found Roberson in bed asleep and they gave him the search warrant. The officers secured the apartment and began to search it.

The search was conducted by Buchanan, Hoadley, and Emerson. Davis was not present during the search, as he took Griffin to the police station. Buchanan found $5,530.00 in cash, and a gun under the dishwasher in the kitchen. He also found a notebook and a set of keys in the bedroom. Hoadley found a voter registration card in one closet with the name Lewis B. Roberson and an address of Pompano Beach, Florida. In another closet Hoadley found an average selection of clothes. In the kitchen Emerson and Hoadley found two bags containing 46 individual baggies of crack cocaine, a total of some 1200 rocks. Roberson was then arrested.

While the search was going on, the apartment received five to seven telephone calls. Emerson answered the calls and the person on the other end of the line each time asked for Lewis Roberson. Each time the person would hang up and call again. At trial Officer Emerson testified that he knew the person on the other end of the line and that his nickname was "Pooky," and that he was a known drug dealer.

Although Davis believed that Roberson lived in the apartment, an examination of the lease showed that Joe Griffin was the person living in Apartment C-9. None of the items seized were dusted for Roberson's fingerprints. An investigation showed that Roberson was in fact from Pompano Beach, Florida.

On April 19, 1989, the trial court heard motions to disclose evidence. One of the motions was for the prosecution to produce any oral or written statements made by Roberson before or after his arrest and the district attorney stated that there were none. The trial court ordered the district attorney to produce such a statement for the defense if one was later found to exist.

The trial court also considered a motion to suppress. Roberson argued that the search warrant stated that the place to be searched was controlled by subject or subjects known as alias "L.A." and that Roberson was not "L.A." He further pointed out that although the search warrant mentions an attachment, there was no attachment to it, and it was not seen by the magistrate who signed the warrant.

The prosecution responded that the underlying facts used simply did not have "attachment" written on it. Officers Davis, Hoadley, and Emerson were offered to connect the written instrument of underlying facts to the search warrant. Davis testified that the statement was in his handwriting and that it was the underlying facts of probable cause for the search warrant. Davis said that Hoadley went to get the search warrant and that Hoadley took the handwritten statement with him to the magistrate. The statement was prepared a day before the search took place and did not include any information about the arrest of Joe Griffin.

Hoadley and Emerson testified that they went to get the warrant, giving the handwritten statement of underlying facts and verbal testimony from Emerson about the arrest of Joe Griffin to the magistrate. The officers could not explain why no return was completed for the search.

The trial judge found that the search warrant was valid, and the motion to suppress was denied.

Roberson also argued a motion to dismiss or a demurrer challenging the validity of the indictment because it did not establish a connection between Roberson and the cocaine nor did it establish to whom he sold cocaine. The trial judge denied the motion, but did require the prosecution to specify what portion of the statute it sought to enforce against Roberson.

The trial began on April 27, 1989. During his testimony, Officer Davis frequently referred to people going in and out of the apartment where Roberson was arrested as "people known to associate with drugs." Roberson objected to the reference as being prejudicial, but the trial judge felt that it was relevant and more probative than prejudicial and overruled the objection.

During Hoadley's testimony, the prosecution asked him his opinion as to whether the amount of cocaine seized was for personal use or for resale. Roberson objected to that testimony arguing that it took the determination away from the jury, but the objection was overruled.

Officer Buchanan testified that upon the discovery of the money he asked Roberson how much money he had. He stated that when he asked Roberson if $5,000.00 sounded right, Roberson responded that it sounded about right. When he told Roberson the exact amount, Roberson responded that that sounded even better. This statement was not disclosed during discovery and came as a surprise to both Roberson and the State. However, Roberson did not object.

Roberson did not take the stand, but offered one witness, Yvonne Williams, who testified that Roberson was not "L.A." Williams also testified that Roberson resided in Pompano Beach, Florida, and that he would visit Meridian on occasion to meet his girlfriend, staying in Meridian from a couple of days to a week with different people.

The trial was concluded on April 28, 1989, and the jury returned with a verdict of guilty. To the surprise of both the State and Roberson, the trial judge, immediately after receiving the verdict, initiated the sentencing phase without the benefit of a sentencing report. The State recommended the maximum sentence. Roberson was not prepared to present any evidence for the sentencing phase. However, the trial judge proceeded to sentence Roberson to thirty (30) years in the custody of the Mississippi Department of Corrections, suspending five (5) of the years and ordering supervised probation for five (5) years after discharge from the custody of the Department of Corrections. Roberson was also fined $50,000.00.

On May 3, 1989, the trial court heard two post-trial motions, for a judgment notwithstanding the verdict or in the alternative a new trial, and for resentencing. The motion for new trial was based on the surprise disclosure of Roberson's oral statements, the alleged prejudicial remarks of some of the witnesses, and because the evidence did not give anything to the jury that would allow it to reasonably connect Roberson...