Hales v. State

933 So. 2d 962, 2006 WL 1349994
CourtMississippi Supreme Court
DecidedMay 18, 2006
Docket2004-KA-02084-SCT
StatusPublished
Cited by10 cases

This text of 933 So. 2d 962 (Hales v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hales v. State, 933 So. 2d 962, 2006 WL 1349994 (Mich. 2006).

Opinion

933 So.2d 962 (2006)

Donald HALES,
v.
STATE of Mississippi.

No. 2004-KA-02084-SCT.

Supreme Court of Mississippi.

May 18, 2006.
Rehearing Denied August 3, 2006.

*963 Daniel Kyle Robertson, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. Donald Hales was indicted by the grand jury of the Second Judicial District of Jones County for the possession of a controlled dangerous substance, in violation of Miss.Code Ann. Section 41-29-139 (Rev.2005). Hales was tried before a jury in the Circuit Court and found guilty of the illegal possession of cocaine. The circuit court sentenced Hales to a sixteen-year sentence with four years suspended. Hales was then remanded to the custody of the Mississippi Department of Corrections to serve a total of twelve years. It is from this conviction and sentence that Hales perfected the present appeal.

¶ 2. After due consideration, we find no error by the trial court in this case. Accordingly, the judgment of the trial court is affirmed.

FACTS

¶ 3. On or about February 11, 2004, Laurel narcotics officers secured a search warrant and arrived at an apartment occupied by Donald Hales. The officers knocked on the door and announced their presence, but heard what they perceived to be running water emanating from the bathroom area of the apartment. The officers then decided to breach the entryway of the residence in order to prevent the possible destruction of evidence. The officers discovered Hales standing in the bathroom holding some sort of towel or rag in his hand. Also, officers found Hales' female companion taking a shower. Both individuals were taken into custody, and the officers commenced a search of the apartment.

¶ 4. During the search, officers noticed a non-working stove in one of the cluttered rooms in the apartment. Officers lifted the top panel of the stove and saw a bag containing a rock like substance, which appeared to be crack cocaine. In addition, two razor blades covered in a white powdery substance were discovered on a table in the apartment. These items, which contained *964 the suspected illegal substance, were collected and submitted to the crime lab for chemical analysis. After testing, the crime lab determined the substance covering the razor blades was a cocaine residue and the bag contained 5.71 grams of cocaine.

¶ 5. On March 24, 2004, Hales was indicted for possession of 5.71 grams of cocaine, in violation of Section 41-29-139. Hales was subsequently tried by a jury before the circuit court. At trial the State presented evidence, including photographs and officer testimony, in an attempt to demonstrate that Hales was knowingly in possession of a controlled dangerous substance. Hales failed to produce evidence or testimony to contradict the State's evidence. Instead, Hales testified on his own behalf during the hearing and admitted residing in the apartment that was searched by the narcotics officers. Hales denied having any knowledge of the cocaine that was recovered in his apartment by the officers. Alternatively, Hales suggested his girlfriend's son and a friend stashed the cocaine in his apartment without his knowledge.

¶ 6. After closing arguments, the circuit court submitted the case to the jury for deliberations. Shortly thereafter the jury returned a guilty verdict. Hales was sentenced and subsequently filed a motion for a new trial, or in the alternative, a motion for judgment notwithstanding the verdict. The circuit court overruled Hales' motions. Hales now appeals to this Court.

ANALYSIS

I. MOTION FOR MISTRIAL

¶ 7. Prior to commencement of the trial, Hales' counsel motioned the trial court to exclude any items other than the cocaine that was recovered in Hales' apartment. The following relevant communications took place pretrial:

DEFENSE COUNSEL: One brief thing, there's — I see that there is several things that Mr. Van Syckel has in his possession that was [sic] recovered pursuant to the search warrant. My client is charged with possession of 5.71 grams of cocaine. I would move the court for an order prohibiting the State from introducing anything else that was a fruit of the search warrant other than the cocaine which he's on charge for here today.
PROSECUTION: Well, Your Honor, there's the cocaine.
TRIAL COURT: If it's not pursuant to the search warrant, what was identified to be searched for, we all know that can't be brought in. If it's something that they went there to find, if there's other contraband —
PROSECUTION: It will all be related to cocaine, Your Honor, but so the Court will know, they found the cocaine and then they found two razor blades, which are used to cut cocaine, that the crime lab will identify as razor blades with cocaine residue. That's the only other thing that was found.

DEFENSE COUNSEL: There's also marijuana that was found.

PROSECUTION: We're not getting into that.

TRIAL COURT: Okay. Well, let's go then.

¶ 8. This pretrial discussion left Hales, not unreasonably, with the impression the district attorney would not divulge any evidence of the presence of marijuana to the jury. However, during the direct examination one of the narcotics officers the district attorney admitted a color photograph into evidence which depicts a razor blade, a cell phone, a bottle of beer, a bag *965 of cocaine, and what appeared to be a small plastic bag of marijuana. Hales' attorney insists he was unaware the color photograph contained marijuana because the prosecution submitted a black and white copy of the photograph during pretrial discovery. Further, defense counsel maintains the poor quality of the black and white copy rendered an indecipherable image of the bag of marijuana at issue. Moreover, Hales' defense counsel maintains the only time he saw the color photograph was prior to its admission into evidence. Hales' counsel did receive a disc, which would have revealed the color photo at issue had counsel had it printed. Hales' counsel did not print the color photo.

¶ 9. Hales contends this color photograph clearly violated the pretrial order because of the marijuana it portrays. Hales also claims the only purpose for offering the color photograph was to inflame and prejudice the jury. We note the photograph at issue is clearly suspect in that it contained the cocaine and other items, when the record clearly reflects only the cocaine was found in the stove. It appears the photo at the center of controversy here was clearly one taken of all the seized items together and did not adequately demonstrate where the seized items were physically located in Hales' apartment when first observed by the officers. The trial court was concerned about the color photograph and made the following remarks:

TRIAL COURT: Now, on this photograph here, I know it's in evidence and it's been presented in evidence. The only thing that disturbs me about it is the fact that it's obvious what it is. And to put a photograph into evidence and not be a part of the crime that's involved here is kind of disturbing to the Court because it's — I don't know.
PROSECUTION: As I said, Your Honor —
TRIAL COURT: It's not a matter of what you said. It's a matter of what you did. You presented it to the jury, a picture of a substance there that anybody — I mean, I don't know what these peoples' common experiences are.

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Bluebook (online)
933 So. 2d 962, 2006 WL 1349994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hales-v-state-miss-2006.