Barlow v. State
| Docket Number: | 2005-KA-01179-COA Linked Case(s): 2005-KA-01179-COA ; 2005-CT-01179-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-12-2008 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of cocaine with intent to distribute while in possession of firearm & Conspiracy to distribute cocaine - Unlawful search and seizure - Indictment - Prior convictions - Expert testimony - M.R.E. 701 - Jury instructions - Sufficiency of evidence - Proportionality of sentence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Concurs in Result Only: ROBERTS, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-11-2005 Appealed from: LINCOLN COUNTY CIRCUIT COURT Judge: Michael M. Taylor Disposition: CONVICTED OF COUNT I: POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND CONVICTED OF COUNT II: CONSPIRACY TO POSSESS COCAINE WITH INTENT TO DISTRIBUTE. SENTENCED TO FIFTY YEARS ON COUNT I AND TEN YEARS ON COUNT II, WITH THIRTEEN YEARS SUSPENDED AND THIRTEEN YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, SAID SENTENCES ENHANCED BY POSSESSION OF A FIREARM. ALSO, SENTENCED TO PAY A FINE OF $10,000, $105 IN RESTITUTION, AND $300 TO THE STATE CRIME LAB. District Attorney: Dee Bates Case Number: 04-38KS |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | COREY BARLOW |
MATTHEW WARREN KITCHENS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS | ||
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| Topic: | Possession of cocaine with intent to distribute while in possession of firearm & Conspiracy to distribute cocaine - Unlawful search and seizure - Indictment - Prior convictions - Expert testimony - M.R.E. 701 - Jury instructions - Sufficiency of evidence - Proportionality of sentence |
| Summary of the Facts: | Corey Barlow was convicted of one count of possession of cocaine with intent to distribute while in possession of a firearm and one count of conspiracy to distribute cocaine. For the possession count, he was sentenced to an enhanced term of fifty years. Barlow was also sentenced to ten years on the conspiracy count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Unlawful search and seizure Barlow argues that the officers did not have reasonable suspicion or probable cause to make the warrantless stop, and that the roadblock was violative of the Fourth Amendment because it was pretextual, as it was set up solely to apprehend him. Because he is a parolee, he has a lesser expectation of privacy. Courts generally hold that although an inmate is released on parole, the parole authorities may subject him, his home and his effects, to inspection and search as may seem advisable to them. Barlow also argues that because the officer was a field officer and not a field supervisor he lacked the authority to detain or arrest him without a warrant and had no lawful authority to delegate that power to regular law enforcement officers. The Mississippi Code uses the terms field officer and field supervisor interchangeably. Therefore, pursuant to section 47-7-27, the officer had the authority to initiate the roadblock with the Sheriff’s Department. Barlow also argues that the trial court erred in refusing to suppress statements that he allegedly made to law enforcement officers after he was apprehended at the roadblock. The deputy testified that while he was transporting Barlow to the residence, Barlow told him that they were going to find a large amount of drugs at the house. Although he may not have explicitly waived his rights, he implicitly did so by continuing to talk after he had been advised that he was under no obligation to make any statements. Issue 2: Indictment Barlow argues that the trial judge erred in refusing to strike portions of the indictment that charged him with possession of cocaine with intent to distribute while in possession of a firearm, which subjected him to enhanced punishment. Barlow was indicted by a grand jury and the trial judge cannot be found in error for refusing to strike portions of an indictment when there is evidence to support the charged offense. Issue 3: Prior convictions Barlow argues that the trial judge erred in admitting the evidence of his prior convictions. It is reasonable to assume that the jury likely was able to learn from the sentencing order that Barlow had prior convictions for drug offenses. Therefore, if the sentencing order was properly admitted, and it was, it was not improper for the prosecutor to make reference to those convictions during his closing argument. Issue 4: Expert testimony Barlow argues that the court erred in allowing a witness to provide expert testimony, as it unfairly bolstered the factual portion of his testimony. The testimony of the witness was based on his experience as a law enforcement officer and did not exceed what is allowed under M.R.E. 701. Issue 5: Jury instructions Barlow argues that the trial judge erred in refusing to grant a number of defense instructions and in granting State’s instructions. A trial judge may properly refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Thus, this issue lacks merit. Issue 6: Sufficiency of evidence Barlow argues that the evidence was insufficient to sustain his conviction of conspiracy to possess cocaine with intent to distribute, because there is no proof that he and another person entered into an agreement to possess and distribute cocaine. The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Although disputed by Barlow, there was testimony that Barlow and the other person lived in the Beard Road residence where a large quantity of cocaine was found. Based on this evidence, a jury reasonably could have found that Barlow and the other person were conspiring to possess and distribute cocaine. Barlow argues that there was insufficient evidence to establish that he intended to distribute the cocaine. It can be logically inferred that when a person possesses the amount of drugs that Barlow did, it is more likely than not that they will not be used for personal consumption. Barlow argues that there was insufficient evidence to support the enhancement for possessing the cocaine while in possession of a firearm. Even though Barlow did not have exclusive dominion and control over the residence, cocaine and the firearm were found in the bedroom that the officers testified that Barlow told them belonged to him. Thus, there is sufficient evidence to support his conviction for possession of cocaine while in possession of a firearm. Issue 7: Proportionality of sentence Barlow argues that his sentence of sixty years with forty-seven years to serve in the custody of the Mississippi Department of Corrections violates the United States and Mississippi constitutions. Sentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute. Barlow’s sentence was within the statutory limits. |
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