Day v. State

818 So. 2d 1196, 2002 WL 418419
CourtCourt of Appeals of Mississippi
DecidedMarch 19, 2002
Docket1999-KA-01303-COA
StatusPublished
Cited by4 cases

This text of 818 So. 2d 1196 (Day v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. State, 818 So. 2d 1196, 2002 WL 418419 (Mich. Ct. App. 2002).

Opinion

818 So.2d 1196 (2002)

Andrew Lee DAY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-01303-COA.

Court of Appeals of Mississippi.

March 19, 2002.
Rehearing Denied June 11, 2002.

*1199 Carl L. Souser, Gulfport, attorney for appellant.

Office of the Attorney General, by Wayne Snuggs, attorney for appellee.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

KING, P.J., for the Court.

¶ 1. Andrew Lee Day was convicted of the sale or transfer of a controlled substance by the Circuit Court of Harrison County and sentenced to twenty years in the custody of the Mississippi Department Corrections. Aggrieved, Day has appealed and raised three issues which we cite verbatim:

I.
The Defendant's Trial Counsel was ineffective;
II.
The Court erred in denying Defendant's motion to exclude the admission of the State's Exhibit 1, the substance and the testimony of Alison Smith, Mississippi Crime Lab. The State failed to establish a legal and sufficient chain of custody;
III.
The sentence was an abuse of the Court's sentencing discretion and was disproportionate to the crime and as such constitutes cruel and inhuman treatment in violation of the Eighth Amendment.

FACTS

¶ 2. On February 13, 1998, the Costal Narcotics Enforcement Team (CNET) conducted an undercover narcotics operation. Kevin Brazil was the undercover officer involved in the drug transactions. Robert Young was the case agent who oversaw the operation: distributing the money, recording the transactions and securing and labeling the evidence recovered. Officer Brazil drove a truck equipped with an audio transmitter and a video recorder. A man, identifying himself as "Red," and later identified as Andrew Lee Day, met with Officer Brazil. On February 13, 1998, Day was recorded in the vehicle with Officer Brazil on three occasions. On the last occasion, Day produced something from his mouth. Because of a power failure, the video recorder did not capture any exchange between Day and Brazil. Officer Brazil turned the substance over to Officer Young who bagged and labeled it. Later, the substance was transported to the crime lab for drug analysis. Allison Smith, a forensic scientist with the Mississippi Crime Laboratory in Gulfport, testified that the substance was cocaine.

¶ 3. On October 28, 1998, Day was indicted in the Circuit Court of the Second Judicial District of Harrison County for transfer of a controlled substance, in violation of Miss.Code Ann. § 41-29-139(1) (Rev.2001). On February 1, 1999, Day *1200 waived arraignment and entered a plea of not guilty.

¶ 4. At Day's trial, begun on March 9, 1999, the State offered the testimony of Officers Brazil and Young, and Allison Smith. Brazil and Young testified regarding the audio and visual recordings of the transaction between Officer Brazil and Day and the disposition of the substance alleged to have been attained from Day. Both acknowledged that there was no visual recording of an exchange of money for drugs. However, Brazil testified that he purchased cocaine from Day. Allison Smith of the State Crime Lab at Gulfport testified as to the receipt of a substance for analysis which proved to be cocaine.

¶ 5. Day's counsel objected to the admissibility of the videotape and the drug and its chemical analysis. After presentation of the State's case-in-chief, Day moved for a directed verdict based upon the "State's failure to establish a prime facie case of transfer of a controlled substance because the recording [did] not show a hand to hand transaction." This motion was denied.

¶ 6. Day then rested without calling any witnesses. The jury found Day guilty of "sale or transfer of a controlled substance, to wit, cocaine."

¶ 7. During sentencing, Day's counsel argued that the proof failed to establish that Day was a drug dealer, and that the trial court should reserve "the upper limits [of sentences] should be left for those who commit the more egregious crimes." Day was sentenced to twenty years in the custody of the Mississippi Department of Corrections.

¶ 8. On December 17, 1999, the court denied Day's motion for a new trial and allowed substitution of appellate counsel.

I.

Whether the Defendant's trial counsel was ineffective.

¶ 9. Day alleges that his trial counsel was ineffective thereby depriving him of a fair trial. He alleges that this ineffectiveness manifested itself in his counsel's failure to prepare and investigate prior to trial; the failure to make pre-trial motions; the failure to obtain or review discovery; the failure to meet with Day except on two occasions prior to trial; the failure to object to the prosecution's presentation of Day's prior convictions and pending charges during sentencing; and the failure to offer mitigating circumstances during the sentencing.

¶ 10. To establish a prime facie case of ineffective assistance of counsel, the defendant has the burden to demonstrate (1) that the performance of counsel was deficient and (2) that the defendant was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). See also McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). In judging counsel's effectiveness, the totality of circumstances of each case must be considered. McQuarter, 574 So.2d at 687.

¶ 11. This totality of circumstances must be considered in conjunction with the "strong but rebuttable presumption that counsel's conduct falls within a broad range of reasonable professional assistance." Id. The presumption is overcome if the defendant demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence *1201 in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "In addition to the presumption that counsel's conduct is reasonably professional, there is a presumption that counsel's decisions are strategic in nature, rather than negligent." Marshall v. State, 759 So.2d 511(¶ 9) (Miss. Ct.App.2000).

¶ 12. We have divided Day's allegations of ineffective assistance of counsel into two categories: (1) counsel's actions prior to trial and (2) counsel's actions during trial.

Counsel's actions prior to trial

¶ 13. Day tells this Court that counsel should have (1) investigated the case prior to trial, (2) made pre-trial motions, (3) obtained discovery, and (4) met with him with greater frequency prior to trial. He suggests that had these things been done, his attorney would have known that a proper chain of custody was not established on the cocaine.

¶ 14. There is no merit to this suggestion. A sufficient chain of custody was established through the testimonies of Brazil, Young and Smith. Unless there is reason to believe that the evidence offered has been tampered with, or is otherwise not the same, it is not necessary to call each and every person who handled it. Ormond v. State, 599 So.2d 951, 959 (1992).

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Cite This Page — Counsel Stack

Bluebook (online)
818 So. 2d 1196, 2002 WL 418419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-state-missctapp-2002.