McDonald v. State

921 So. 2d 353, 2005 WL 1154193
CourtCourt of Appeals of Mississippi
DecidedMay 17, 2005
Docket2003-KA-02077-COA
StatusPublished
Cited by3 cases

This text of 921 So. 2d 353 (McDonald 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
McDonald v. State, 921 So. 2d 353, 2005 WL 1154193 (Mich. Ct. App. 2005).

Opinion

921 So.2d 353 (2005)

Lamar McDONALD a/k/a Lamaar MacDonald, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02077-COA.

Court of Appeals of Mississippi.

May 17, 2005.
Rehearing Denied November 15, 2005.
Certiorari Denied February 16, 2006.

*355 John Edward Jackson, Kurt Guthrie, attorneys for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before KING, C.J., CHANDLER and BARNES, JJ.

CHANDLER, J., for the Court.

¶ 1. The Pearl River County Circuit Court convicted Lamar McDonald of possession of a controlled substance and sale of a controlled substance. Miss.Code Ann. § 41-29-139(a)(1) (Supp.2004). McDonald appeals, raising the following issues:

I. WHETHER MCDONALD'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WERE VIOLATED WHEN HE WAS FOUND GUILTY OF A LESSER-INCLUDED OFFENSE

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO EXCUSE A JUROR FOR CAUSE

III. WHETHER MCDONALD RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL

IV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE OFFICER TO INTERPRET THE CONTENTS OF THE TAPE RECORDING

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Picayune Police Department and the Drug Enforcement Administration (DEA) engaged in an undercover drug operation with the purpose of purchasing an ounce of crack cocaine from Lamar McDonald. A confidential informant introduced McDonald to undercover DEA agent Terry Davis. McDonald sold an ounce of crack cocaine for $550 to Agent Davis. Agent Davis, who was recording the transaction, asked if he might be able to purchase more cocaine from McDonald, and McDonald quoted him a price of $1,500 for three more ounces. After the transaction, McDonald left in his car.

¶ 4. Officer Joel Hudson tried to follow McDonald, but he was unable to maintain his cover, and he inadvertently confronted McDonald. McDonald lost control of his vehicle and fled on foot. The police conducted an inventory search of McDonald's vehicle and found another cookie of crack cocaine. Five days later, McDonald was apprehended and arrested. The grand jury indicted McDonald on two counts: (1) sale of a controlled substance and (2) possession of a controlled substance with the intent to distribute.[1] Both crimes are encompassed within Mississippi Code Annotated Section 41-29-139(a)(1) (Supp.2004).

¶ 5. During the voir dire stage of trial, McDonald's counsel asked the jury panel whether anyone was related by blood or marriage to anyone in law enforcement. Potential juror Susan Quave stated that she was married to a retired law enforcement officer. When the judge asked her whether she would accept what law enforcement said, she replied that she would tend to believe what the law enforcement agency presented. Quave was selected to serve on the jury.

¶ 6. When Officer Davis testified at trial, the prosecutor played the tape recording of the drug transaction. The prosecutor was then allowed to ask Officer Davis a series of questions that McDonald claims were impermissibly designed to elicit his interpretation of the tape recording.

¶ 7. At the conclusion of the trial, McDonald was found guilty of both crimes *356 and sentenced to serve two consecutive thirty year sentences, with the final twenty years of his second sentence suspended and five years in post-release supervision.

ANALYSIS

I. WHETHER MCDONALD'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WERE VIOLATED

¶ 8. McDonald argues that his separate convictions were a violation of his rights under the Double Jeopardy Clause because the events which gave rise to his convictions were based on the same factual circumstances that arose out of the same transaction and that he should not be punished twice for the same events. The Mississippi Supreme Court has recognized that the Fifth Amendment protection against double jeopardy encompasses three separate sub-protections: (1) protection against a second prosecution for the same offense following an acquittal; (2) protection against a second prosecution for the same offense following a conviction; and (3) protection against multiple punishments for the same criminal offense. Thomas v. State, 711 So.2d 867, 870 (¶¶ 14-15) (Miss.1998). McDonald's appeal pertains to the protection against multiple convictions for the same criminal offense. This test "inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution." Id. at 870(¶ 15) (quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)).

¶ 9. In the present case, the two offenses for which McDonald was convicted are sale of a controlled substance and possession of a controlled substance with intent to distribute. Both of these offenses are identified in Mississippi Code Annotated Section 41-29-139(a)(1) (Supp. 2004), which states: "Except as authorized by this article, it is unlawful for any person knowingly or intentionally: (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance." Two independent crimes merge into one when the greater crime necessarily includes all the elements of the lesser crime as a lesser included (sic) offense. Smith v. State, 818 So.2d 383, 386(¶ 9) (Miss.Ct.App.2002) (citing Newburn v. State, 205 So.2d 260, 264 (Miss.1967)). McDonald argues that his separate offenses of possessing a controlled substance and selling a controlled substance merged, because the only difference between the two offenses is the additional step of actually selling the drugs.

¶ 10. In Laughter v. State, 241 So.2d 641 (Miss.1970), the Mississippi Supreme Court reversed and rendered the defendant's separate convictions of possession and sale of marijuana, because it found that a conviction of both crimes violated the defendant's rights under the Double Jeopardy Clause. However, in Laughter the court made it clear that the application of this principle is limited. The court noted, "[T]he one transaction principle does not apply when it is shown that a defendant had in his possession marijuana or other prohibitive drugs either before or after the sale. In other words, if the appellant had gone to a place where he had marijuana concealed, procured it and sold it to the undercover agent he could have been properly charged, convicted and punished for the possession and sale of marijuana." Id. at 643.

¶ 11. In the present case, McDonald sold an ounce of cocaine to a DEA agent. After the sale, the police conducted an inventory search of McDonald's vehicle and found another cookie of crack cocaine. *357 Because McDonald remained in possession of cocaine after he sold the cocaine to Officer Davis, he can be convicted for both possession and sale of a controlled substance without violating his rights under the Double Jeopardy Clause, consistent with the precedent established in Laughter v. State. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN FAILING TO EXCUSE A JUROR FOR CAUSE

¶ 12.

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Bluebook (online)
921 So. 2d 353, 2005 WL 1154193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-state-missctapp-2005.