Dora v. State
| Docket Number: | 2005-KP-00487-COA Linked Case(s): 2005-KP-00487-COA ; 2005-CT-00487-SCT ; 2005-CT-00487-SCT ; 2005-CT-00487-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-15-2007 Opinion Author: GRIFFIS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Possession of cocaine - Comment on failure to testify - Right to speedy trial - Jury instructions - Amendment of indictment - Suppression of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-23-2004 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: CONVICTED OF POSSESSION OF COCAINE MORE THAN THIRTY GRAMS AND SENTENCED AS AN HABITUAL OFFENDER AND SUBSEQUENT DRUG OFFENDER TO SERVE A TERM OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. THE SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION. FURTHER, THE DEFENDANT IS FINED IN THE AMOUNT OF $2,000,000. Case Number: 2001-0665-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | TERRY DORA |
TERRY DORA (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
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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 - Comment on failure to testify - Right to speedy trial - Jury instructions - Amendment of indictment - Suppression of evidence |
| Summary of the Facts: | Issue 1: Comment on failure to testify Dora argues that the prosecutor’s comment on his failure to testify warranted a mistrial. The prosecutor is prohibited from making both direct comments and those which could be reasonably construed by a jury as a comment on the defendant’s failure to testify. Once such improper comments are made the defendant is entitled to a mistrial. The error is incurable. The prosecutor in this case made a number of comments that the evidence was undisputed and that the only living person who could “come forward and say that didn’t happen” was Dora. The jury could reach no other conclusion except that the prosecutor was telling them, “Look, if [the witnesses] were not telling the truth, Dora would have taken this witness stand and denied it.” Because these comments were impermissible, the court abused its discretion in not granting the mistrial. Issue 2: Right to speedy trial Dora argues that both his statutory and constitutional rights to speedy trial have been violated. Dora waited to raise this issue for the first time on appeal. Because he did not raise it within the 270 day period, he has acquiesced to any violation of his statutory speedy trial rights. When the constitutional right to a speedy trial violation is raised for the first time on appeal, the case is remanded to the lower court to consider reasons for the delay. On remand, the court is instructed to conduct a constitutional speedy trial hearing. Issue 3: Jury instructions Dora argues that he was not allowed to instruct the jury on his theory of the case and that the jury was improperly instructed on the law of possession. The accomplice instructions were properly refused. As Dora recognizes, his theory at trial was actual innocence. Furthermore, there was no evidence that any other individuals were accomplices. With regard to his argument that the court should have granted a proffered instruction because it presented his theory of actual innocence, the court refused it, because it operated as a directed verdict. The prosecution had presented sufficient evidence to support a conviction. However, the jury was not instructed on the complete law of possession. Nowhere in the cumulative instructions was the jury asked to find whether Dora was also aware of the character of the substance, i.e., that it was cocaine. This is an additional, essential element to possession of a controlled substance. This defect should not be repeated on remand. Issue 4: Amendment of indictment Dora argues that the amendment to include habitual offender status was untimely and prejudicial. Indictments may be amended to include habitual offender status if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. It is permissible to amend an indictment to charge habitual offender status even after the jury has returned a guilty verdict. Dora was put on notice over a year before trial that the State sought to amend the indictment to charge him as an habitual offender. Issue 5: Suppression of evidence Dora argues that the evidence obtained during the search of the house and the later search of his truck should have been suppressed. It is undisputed that Dora did not own the home nor did he reside there. As such, he cannot complain of the search the house. As for the truck, there was no evidence found in it, retrieved from it, or used against him. |
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