McKee v. State
| Docket Number: | 2002-KA-01048-COA Linked Case(s): 2002-CT-01048-SCT ; 2002-KA-01048-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-09-2004 Opinion Author: Thomas, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of cocaine - Illegal search - Circumstantial evidence instruction - Chain of custody - Admission of crack pipe and antenna - Ineffective assistance of counsel Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-09-2002 Appealed from: Leake County Circuit Court Judge: Marcus D. Gordon Disposition: POSSESSION OF COCAINE IN AN AMOUNT BETWEEN 2 AND 10 GRAMS - SENTENCED TO 12 YEARS Case Number: 02-CR-008-LE-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Harold D. McKee |
HAROLD D. MCKEE (PRO SE)
LAUREL G. WEIR |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Possession of cocaine - Illegal search - Circumstantial evidence instruction - Chain of custody - Admission of crack pipe and antenna - Ineffective assistance of counsel |
| Summary of the Facts: | Harold McKee was convicted of possession of cocaine and was sentenced to twelve years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Illegal search McKee argues that the court erred in admitting evidence which had been seized in violation of McKee's constitutional rights, because he was only arrested for a minor traffic offense for which the usual remedy is the issuance of a citation. While a warrant is generally required before the search for or seizure of evidence may be conducted, no warrant is required to seize an object in plain view when viewed by an officer from a place he has the lawful right to be, its incriminating character is readily apparent and the officer has a lawful right of access to the evidence. In this case, the officer legally stopped McKee for a traffic violation. He smelled alcohol on McKee's breath and saw an open container of alcohol in the vehicle. Under the plain view doctrine, the officer was entitled to seize this evidence without a warrant. The presence of alcohol gave the officer sufficient probable cause to also search the vehicle. Even had probable cause been absent, McKee would have no standing to complain. He was not the owner of the vehicle at the time of his arrest but was merely test-driving it in order to determine whether he wished to purchase it. A defendant may not seek to suppress evidence through a complaint that the constitutional rights of a third party have been violated, in this case the right of the actual owner of the vehicle to be free of a warrantless search. Issue 2: Circumstantial evidence instruction McKee argues that he was entitled to a circumstantial evidence instruction because the State failed to prove he had exclusive dominion and control over the vehicle. An accused is entitled to receive a particular species of instruction when the evidence against him is wholly circumstantial and he so requests. The evidence against McKee is not wholly circumstantial. That portion of the cocaine found on his person constitutes direct evidence of possession. Because the evidence is of the mixed variety, partly circumstantial and partly direct, a circumstantial evidence instruction is not required. Issue 3: Chain of custody McKee argues that the State failed to establish a chain of custody between the time the cocaine was seized and the time it was presented at trial. Not only did McKee fail to object to this alleged error at trial, but testimony at trial properly established the chain of custody. Issue 4: Admission of crack pipe and antenna McKee argues that the evidence concerning the crack pipe and antenna was that the police car had not been searched by the police prior to McKee being placed in the vehicle and there was no proof that he placed it there. McKee failed to object at trial. In addition, his statement does not accurately reflect the testimony at trial. McKee also argues that it was error not to introduce the pipe and antenna into evidence. The State was not required to introduce evidence of this separate crime and McKee puts forth neither a theory nor authority for the notion that the items must have been introduced as evidence. Issue 5: Ineffective assistance of counsel McKee argues that he received ineffective assistance of counsel because his attorney failed to object to a defective indictment, failed to object to court's refusal of the circumstantial evidence instructions, failed to secure a jury instruction on the State's burden of proof, failed to object to introduction of prejudicial evidence of other crimes, and failed to seek suppression of evidence obtained in violation of the Fourth Amendment. With regard to his claim of defective indictment, the indictment is a two-sided document and all necessary signatures appear on the back side of it. With regard to the failure of his attorney to object to circumstantial evidence instructions, trial counsel was not required to make any separate objection and cannot be found defective for failing to do that which was unnecessary. McKee also argues that additional instructions should have been offered. Taking the instructions given as a whole, the jury was correctly informed of the State's obligation to prove the elements of the crime beyond a reasonable doubt. That is sufficient. McKee next argues he was prejudiced by the introduction of evidence regarding another, separate crime. Even assuming that failure to object to the testimony was deficient, McKee's claim fails for lack of prejudice to him as a result of the deficient performance. Finally, McKee argues counsel was deficient by failing to seek suppression of the cocaine found in the truck he was driving. Because there was no violation of any constitutional rights with respect to the search and seizure of evidence from the truck or from McKee's person, counsel did not perform defectively by recognizing this. |
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