Hosey v. State

77 So. 3d 507, 2011 Miss. App. LEXIS 348, 2011 WL 2323031
CourtCourt of Appeals of Mississippi
DecidedJune 14, 2011
DocketNo. 2010-KA-00602-COA
StatusPublished
Cited by5 cases

This text of 77 So. 3d 507 (Hosey 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
Hosey v. State, 77 So. 3d 507, 2011 Miss. App. LEXIS 348, 2011 WL 2323031 (Mich. Ct. App. 2011).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Harrison County Circuit Court found Jherashio Ra-mandes Hosey guilty of possession of cocaine with the intent to distribute it. During a bifurcated proceeding, the circuit court found that Hosey qualified for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), and sentenced Hosey to thirteen years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Hosey appeals and raises the following seven issues: sufficiency of the evidence; weight of the evidence; whether the jury’s form of the verdict was ambiguous; exclusion of a defense witness who unexpectedly appeared during the second day of no-sey’s trial; admission of prior convictions in which Hosey was convicted for selling narcotics; admission of a law-enforcement officer’s lay opinion testimony; and cumulative effect of the errors. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In Spring 2009, the Gulfport Police Department had a “pole camera” installed on a utility pole at the intersection of 31st Avenue and 20th Street in Gulfport, Mississippi. The camera wirelessly streamed digital video images to a secure, limited-access web site. During the afternoon of April 28, 2009, Sergeant Rob Enochs of the Gulfport Police Department watched the camera feed from his office computer. The video feed depicted a man later identi-[510]*510fled as Hosey conducting what Sergeant Enochs described as “hand to hand exchanges.”

¶ 3. Sergeant Enochs had Detectives Mark Joseph and Bradley Walker watch the video feed for a moment. Sergeant Enochs then asked the two detectives to make contact with Hosey to determine whether he was selling drugs. Detectives Joseph and Walker drove to the intersection in Detective Walker’s black, unmarked Dodge Durango sport utility vehicle. According to the detectives, Hosey began walking in the opposite direction when he saw the SUV approaching.

¶ 4. Detective Walker maneuvered the SUV so that Detective Joseph could exit the passenger side of the SUV near Hosey. When Detective Joseph announced that he was with the Gulfport Police Department, Hosey ran from him. According to Detective Joseph, just as he was able to grab Hosey, Hosey discarded what was later confirmed to be cocaine. Detective Joseph later testified that Hosey drew his fist back as if he was going to punch Detective Joseph. A physical altercation followed. Detective Bradley testified that he got out of the driver’s side of the SUV and helped Detective Joseph subdue Hosey. After Hosey was secured, Detective Walker found the substance Hosey has discarded. Subsequent testing revealed that the substance was .10 gram of cocaine.

¶ 5. On September 28, 2009, a Harrison County grand jury returned an indictment against Hosey charging him with possession of narcotics with the intent to distribute. Hosey waived arraignment and pled not guilty. Hosey subsequently filed a motion in limine, arguing that the prosecution should be prohibited from introducing evidence of the fact that he had prior felony convictions.1 On the same day that Hosey filed his motion in limine, the prosecution filed a motion to amend the indictment to include a charge that Hosey was a habitual offender pursuant to section 99-19-81.

¶ 6. Hosey’s trial began on March 16, 2010. The prosecution called Sergeant Enochs as its first witness. The circuit court adjourned for the day after Sergeant Enochs testified. The next day, the prosecution called Detective Joseph, Detective Walker, and Dr. Thomas Pittman, who testified that he analyzed the substance that Detective Joseph had recovered. According to Dr. Pittman, the substance was .10 gram of cocaine.

¶ 7. Following Dr. Pittman’s testimony, the circuit court ruled on Hosey’s motion in limine. The circuit court granted Ho-sey’s motion in part. That is, the circuit court held that the prosecution would not be allowed to introduce evidence of Ho-sey’s prior convictions that did not involve the transfer or sale of narcotics. However, the circuit court also held that the prosecution would be allowed to introduce evidence of Hosey’s prior convictions involving the transfer or sale of narcotics to demonstrate that Hosey intended to transfer or sell narcotics on April 28, 2009. The circuit court noted that it would give a limiting instruction.

¶ 8. At approximately noon on the second day of Hosey’s trial, Hosey’s attorney informed the circuit court that an unexpected witness had appeared at the trial. [511]*511That witness, Cassie Moore, had not been subpoenaed because neither the prosecution nor Hosey’s attorney were aware that Moore was an eyewitness to the events that transpired on April 28, 2009. Outside of the presence of the jury, Hosey’s attorney proffered Moore’s testimony, which will be discussed in greater detail in the analysis portion of this opinion. In any event, the circuit court held that Moore would not be allowed to testify. Like Moore’s testimony, the circuit court’s rationale for its decision will be discussed in greater detail, below.

¶ 9. After Hosey’s proffer of Moore, the prosecution briefly re-called Detective Joseph. After Detective Joseph’s re-call testimony, the circuit court informed the jury that the prosecution and Hosey had stipulated that Hosey “was previously convicted in the Harrison County Circuit Court on two occasions for the felony of transfer of a controlled substance.” The prosecution rested its case-in-chief after the circuit court had read the stipulation to the jury.

¶ 10. Hosey then called Natasha Hands as his first witness. Hands worked at a nearby beauty salon. She testified that she was an eyewitness to the altercation between Hosey and Detectives Joseph and Walker. To summarize, Hands testified that a person who matched Detective Walker’s description got out of the driver’s side door of the unmarked SUV and “jumped on” Hosey. Hands’s testimony contrasted with that of Detective Joseph’s who testified that he — not Detective Walker — got out of the passenger-side door of the unmarked SUV before he became involved in the physical altercation with Ho-sey.

¶ 11. Hands also testified that Hosey did not throw or discard anything during the altercation. On cross-examination, Hands admitted that she did not know what Hosey was doing before she went outside of her beauty salon. She also admitted that Hosey’s hands were “balled” before Detective Joseph attempted to apprehend Hosey.

¶ 12. Hosey testified after Hands. Ho-sey denied that he had any cocaine in his possession. He further denied that he had been selling cocaine. According to Hosey, his mother had dropped him off at a carpentry trade school earlier on the morning that he was arrested, where he applied to take classes. Hosey testified that he left the carpentry trade school and got a ride from someone who dropped him off near the area where he was arrested. Regarding what he was doing in the area, Hosey’s testimony was somewhat inconsistent. When asked why he was wearing “house shoes,” Hosey testified that his brother had his other pair of shoes. Hosey further testified that his brother had had his shoes for three weeks, and he was waiting in the area because he thought that his brother might randomly drive through. However, Hosey testified that he did not know his brother’s phone number or where his brother lived.

¶ 13. Additionally, Hosey testified that he was looking for a ride to a temporary employment agency.

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Bluebook (online)
77 So. 3d 507, 2011 Miss. App. LEXIS 348, 2011 WL 2323031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hosey-v-state-missctapp-2011.