Harris v. State

921 So. 2d 366, 2005 Miss. App. LEXIS 423, 2005 WL 1499689
Court of Appeals of Mississippi·Decided June 21, 2005·No. No. 2003-KA-02111-COA·Published·Cited by 1 cases

Opinion

KING, C.J.,

for the Court.

¶ 1. Larry Harris was convicted in the Circuit Court of Hinds County, Mississippi of possession of cocaine. As a second time offender, he was sentenced to a term of twelve years in the custody of the Mississippi Department of Corrections, with four years of supervised probation. Aggrieved by his conviction and sentence, Harris raises the following issues, which we quote verbatim:

I.The trial [cjourt erred when it allowed the case to go to the jury, as the prosecution should have been collaterally estopped from pursuing charges against Mr. Harris. Prosecutors had in hand a guilty plea from William Pugh, who confessed to possession of the very same cocaine the [Sjtate alleged Mr. Harris possessed, thus depriving Mr. Harris of his fundamental right to due process of law and a fair and impartial trial[.j
II. The trial [cjourt erred when it refused to admit into evidence the sentencing order of William Pugh, who possessed the cocaine in dispute, so that the jury lacked all relevant and probative facts surrounding the arrest of Mr. Harris[.j
III. The trial [cjourt erred when it refused a continuance or a mistrial due to the unavailability of [Sjtate witnesses Ben Bratton and Richard McGahey, both of whom would have offered evidence exculpatory to Mr. Harris. This error deprived Mr. Harris of his fundamental right to compel the attendance of witnesses in his behalf, a fair and impartial trial and due process of law, all secured to him under both federal and state constitutions[.j
IV. The trial [cjourt erred when it refused jury instruction D-7; the evidence was clearly insufficient because the testimony of Officer Robert Shegog lacked all indicia of credibility, as evidenced by the report he filed of the April 3, 2001 raid.

FACTS

¶ 2. On the afternoon of April 3, 2001, Harris went to 821 Powell Rhodes Street in Jackson. According to Harris, he went to visit the owner of the residence. Officers with the Jackson Police Department (narcotics division) conducted a narcotics raid on this residence at that time. Seven officers entered the house to execute a search warrant.

¶ 3. Officer Robert Shegog of the Jackson Police Department testified that he was the last officer to enter the house. Upon entering the house, Officer Shegog “keyed on a black male subject that was sitting beside a black chair to the right-hand side of the door as you go in. He was wearing green pants and a white tee shirt.” There were several individuals at [369]*369this house. According to Officer Shegog, he asked all of the individuals to raise their hands, but one male, later identified as Larry Harris, refused to do so.

¶ 4. As Shegog began to approach Harris, he noticed that Harris had something inside of his left hand, which he threw on the floor beside the left side of a chair. Shegog then detained Harris, put him in handcuffs, and advised Officer Harding (case agent in charge of the narcotics raid) of the substance Harris threw on the floor. Harding retrieved the substance and placed it in a clear plastic evidence bag. The substance was later taken to the crime lab, where it was determined to contain cocaine. According to Patricia Barnes of the Jackson Police Department crime lab, the weight of the substance was 1.08 grams.

¶ 5. Officer Harding stated that Shegog informed him that he saw Harris throw a “plastic bag with cocaine behind a chair, which he was seated in.” Harding assisted Shegog in detaining Harris. Harding picked up the bag of substance and advised Harris that he was under arrest and advised him of his Miranda rights. Harding also indicated that he “did not see any drugs” on Harris.

¶ 6. Harris testified that an individual named William Pugh was sitting in the chair where the cocaine was located. According to Harris, he was under the impression that he and another individual were not going to jail because they had been separated from the other individuals at the house and were told that they were not going to jail. Harris indicated that Officer Preston Carter “ran a check on everybody.” The call indicated that someone named Larry C. Harris was wanted on a felony shoplifting charge. Harris was then advised that he had to go downtown to straighten out the matter. Harris stated that his name was not Larry C. Harris but Larry D. Harris and asked one of the officers to contact his sister, a former Jackson police officer to verify the name. Harris further stated that he did not have cocaine in his possession on April 3, 2001, nor did he place the substance on the floor beside the chair.

¶ 7. Harris was convicted of possession of cocaine and sentenced to a term of twelve years in the custody of the Mississippi Department of Corrections, with four years of supervised probation. Harris filed posttrial motions, which were denied.

ISSUES AND ANALYSIS

I.

Whether the State should have been collaterally estopped from prosecuting Harris on the charge of possession of cocaine.

¶ 8. Harris argues that the criminal proceedings against him should have been barred by the doctrine of collateral estop-pel because another individual entered a guilty plea regarding possession of the same cocaine Harris was charged with possessing.

¶ 9. “Collateral estoppel provides that an issue of ultimate fact which was a valid and final judgment may not be re-litigated between the same parties in a subsequent suit.” Farris v. State, 764 So.2d 411 (¶ 37) (Miss.2000) (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)).

¶ 10. Harris alleges that the “ultimate fact” was decided when another individual was indicted and subsequently pled guilty to possession of the same cocaine Harris was charged with possessing. Harris relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) where approximately four armed men robbed six poker players in the home of one of the [370]*370victims and the defendant was charged with separate counts of robbery of each of the victims. The defendant was tried on one count and was acquitted for insufficient evidence where the defendant’s identity was the single issue in dispute. The federal rule of collateral estoppel, along with the Fifth Amendment right against double jeopardy, precluded a subsequent prosecution of the defendant for the robbery of a different player. In that case, the court stated that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. 1189.

¶ 11. In its response, the State cites State v. Oliver, 856 So.2d 328 (Miss.2003), where the supreme court held that the “doctrine of collateral estoppel did not preclude State from charging defendant with offense that was basis for unsuccessful petition to revoke probation.”

¶ 12. In Oliver, the court stated the following:

In Sanders, this Court adopted the collateral estoppel analysis of Ashe only because “it has become so firmly embedded in federal criminal constitutional procedural jurisprudence — -illogical though it is.” Id.

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Harris v. State, 921 So. 2d 366, 2005 Miss. App. LEXIS 423, 2005 WL 1499689 (Mich. Ct. App. 2005).

921 So. 2d 366 (Harris v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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