Brown v. State
| Docket Number: | 2008-KA-00944-COA Linked Case(s): 2008-KA-00944-COA2008-CT-00944-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-15-2009 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of cocaine - Sufficiency of indictment - Prosecutorial misconduct - Sentence - Section 99-19-83 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-10-2008 Appealed from: PONTOTOC COUNTY CIRCUIT COURT Judge: Thomas J. Gardner Disposition: CONVICTED OF POSSESSION COCAINE, A SCHEDULE II CONTROLLED SUBSTANCE, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: John Richard Young Case Number: CR07-160 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | PATRICIA ANN BROWN |
JIM WAIDE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER | ||
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 - Sufficiency of indictment - Prosecutorial misconduct - Sentence - Section 99-19-83 |
| Summary of the Facts: | Patricia Brown was convicted of possession of cocaine, in an amount greater than .10 gram but less than 2 grams, and sentenced as a habitual offender to life. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of indictment Brown argues that, as the indictment failed to distinguish between the cocaine attributable to Brown and the cocaine attributable to another person, it was insufficient to notify Brown of the charge against her. The primary purpose of an indictment is to inform the defendant of the charges against him so as to allow him to prepare an adequate defense. However, Brown never objected to the form of the indictment prior to or during trial. Where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice. Accordingly, Brown's claim may not be raised for the first time in this appeal. Issue 2: Prosecutorial misconduct Brown argues that prosecutorial misconduct resulted in her receiving prejudicial and unfair treatment at trial, i.e., the prosecution’s persistent allusions to a sexual relationship between Brown and another person prejudiced her trial. It is only when a procedural error results in substantial and irreparable prejudice to the accused that a mistrial should be declared by the judge. Although the State subjected three witnesses to improper questioning, the court properly instructed the jury to disregard the evidence. When a jury is instructed by the court to disregard a statement, it is presumed that the jury will follow the court’s instructions. Here, these particular questions by the prosecution did not establish a level of prejudice which would have merited granting a mistrial. Brown also argues that the prosecution’s references to the fact that the other person had pleaded guilty rendered her trial fundamentally unfair. There was no objection to this testimony at trial. Failure by defense counsel to contemporaneously object to a prosecutor’s remark at trial bars consideration of prosecutorial misconduct allegations on appeal. Brown also argues that the introduction of the evidence of crack cocaine found inside the house was error. The circuit court judge clearly instructed the jury that the only drug evidence that was in question is that which the State alleged fell from Brown’s pocket, the single rock of crack cocaine. He admonished the jury that all other items discussed might only be considered in weighing the credibility of the testimony and evidence. Thus, there was no error in the introduction of the evidence of cocaine in the house. Issue 3: Sentence Brown argues that the amendment to the indictment which subjected her sentence to the section 99-19-83 enhancement was due to her decision to go forward with a jury trial instead of pleading guilty. A circuit court judge may amend an indictment in order to charge a defendant as a habitual offender because it does not affect the substance of the charged crime, but only the subsequent sentencing. It is plain from the record that Brown’s prior convictions warranted the imposition of section 99-19-83, which mandated that if Brown was convicted, the circuit court judge must impose a life sentence. A defendant charged with a serious offense, one for which he could be sentenced to more than six months in custody, is guaranteed the right to a jury trial. A defendant, however, does not have a constitutional right to a plea bargain. There is no dispute Brown and the co-defendant had similar criminal backgrounds, yet the amendments to the indictment rendered their sentences significantly disparate. The timing of the amendments to the indictment, occurring on the very day that the co-defendant entered his guilty plea, raises a concern of possible vindictiveness of the part of the State. However, Brown has not presented any evidence to show that the State knew of her conviction for a violent felony at the time of the original indictment. Thus, the disparity in sentencing did not violate Brown’s constitutional right to trial by jury. Brown’s sentence conforms to the requirements of the habitual offender statute, and the circuit court thoroughly considered Brown’s sentence in light of the facts and her previous criminal history. |
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