Phinizee v. State


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Docket Number: 2006-KA-00846-COA
Linked Case(s): 2006-KA-00846-COA ; 2006-CT-00846-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-25-2007
Opinion Author: CARLTON, J.
Holding: Affirmed

Additional Case Information: Topic: Sale of cocaine & Possession of cocaine with intent to distribute - Motion to suppress - Excessive sentence - Prior bad acts - M.R.E. 404(b) - M.R.E. 403
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-16-2006
Appealed from: LOWNDES COUNTY CIRCUIT COURT
Judge: James T. Kitchens, Jr.
Disposition: CONVICTED OF COUNT I, SALE OF COCAINE AND SENTENCED TO THIRTY YEARS AND PAY A FINE OF $5,000; COUNTS II AND III, POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE AND SENTENCED TO THIRTY YEARS AND PAY A FINE OF $5,000 ON EACH COUNT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO SENTENCES IN COUNTS II AND III AND SENTENCES IN COUNTS II AND III TO RUN CONCURRENTLY TO EACH OTHER FOR A TOTAL OF SIXTY YEARS
District Attorney: Forrest Allgood
Case Number: 2004-0244-CR1

  Party Name: Attorney Name:  
Appellant: JOHN PHINIZEE A/K/A JOHN L. PHINIZEE, JR.




JOHN DAVID WEDDLE



 

Appellee: STATE OF MISSISSIPPI STEPHANIE BRELAND WOOD  

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Topic: Sale of cocaine & Possession of cocaine with intent to distribute - Motion to suppress - Excessive sentence - Prior bad acts - M.R.E. 404(b) - M.R.E. 403

Summary of the Facts: John Phinizee was convicted of one count of the sale of cocaine and two counts of possession of cocaine with intent to distribute. He was sentenced to thirty years for each count with the sentences in counts two and three to run concurrently and the sentence in count one to run consecutively with the sentences in counts two and three for a total of sixty years to serve. He appeals.

Summary of Opinion Analysis: Issue 1: Motion to suppress Phinizee argues that that the cocaine found in his truck should have been suppressed as the product of a warrantless search, the warrant obtained to search the pool hall he owned and operated was not supported by probable cause, and any statements he gave to police are fruits of the poisonous tree. A warrantless search of an automobile incident to arrest is proper where the police have made a lawful custodial arrest of the occupant of the automobile. In the instant case, it is beyond dispute that Phinizee was lawfully arrested based on probable cause that he had sold cocaine. Phinizee was lawfully arrested based on probable cause and the cocaine found inside his vehicle was clearly within the permissible scope of the search, i.e., a container located in the passenger compartment of the vehicle. Phinizee argues that the warrant obtained was not supported by probable cause but instead based upon misleading and anonymous information. Probable cause exists where it is based on information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found. Here, there was substantial evidence in the affidavit to support the justice court judge’s finding of probable cause to issue a warrant for the search of the pool hall. While the affidavit does contain information from unnamed informants it also contains information based on personal observations of police officers involved in the case which corroborates the information received from anonymous sources. Issue 2: Excessive sentence Phinizee argues that his sixty-year sentence was disproportionate to the crimes committed and constitutes cruel and unusual punishment. As a general rule, a sentence will not be disturbed on appeal if the sentence imposed is within the statutorily proscribed limits. Although the sentence Phinizee received seems somewhat harsh in light of the fact that he was a first offender, it is not grossly disproportionate to the crimes committed. Phinizee faced a possible sentence of ninety years, thirty on each count. Thus, Phinizee’s sentence was well within the statutorily proscribed limits. Issue 3: Prior bad acts Phinizee argues that the court erred when it allowed a witness to testify regarding prior drug transactions between her and Phinizee. Under M.R.E. 404 (b), evidence of prior bad acts is generally inadmissible; however, it is well-settled that evidence of prior drug sales is admissible to prove intent to distribute where the court conducts a M.R.E. 403 balancing test and gives a limiting instruction. Evidence of prior bad acts is admissible to tell the complete story so as not to confuse the jury. The admission of prior bad acts is also permissible to show intent. Here, the trial court conducted a 403 balancing test and determined that the probative value of the tendered evidence substantially outweighed the danger of any prejudice because two of the charges were possession with intent to distribute, of which intent is an essential element. Also, the court gave a proper limiting instruction to the jury. Therefore, the trial judge did not abuse his discretion in admitting the evidence of prior bad acts under Rule 404 (b).


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