Sistrunk v. State
| Docket Number: | 2009-KA-00179-COA Linked Case(s): 2009-KA-00179-COA ; 2009-CT-00179-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-30-2010 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of hydrocodone - Admission of statement - Ineffective assistance of counsel - Discovery violation - Sufficiency of evidence - Section 41-29-139(c) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Carlton, J. Concur in Part, Concur in Result 1: Maxwell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-08-2008 Appealed from: WALTHALL COUNTY CIRCUIT COURT Judge: Michael M. Taylor Disposition: Conviction of possession of at least two, but less than ten, dosage units of hydrocodone and sentence, as a habitual offender, to eight years in the custody of the Mississippi Department of Corrections and to pay a $5,000 fine. District Attorney: Dee Bates Case Number: 2008-04-T |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOEL SISTRUNK |
HUNTER NOLAN AIKENS |
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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 hydrocodone - Admission of statement - Ineffective assistance of counsel - Discovery violation - Sufficiency of evidence - Section 41-29-139(c) |
| Summary of the Facts: | Joel Sistrunk was convicted of possession of at least two, but less than ten, dosage units of hydrocodone. He was sentenced as a habitual offender, to eight years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of statement Sistrunk argues that the trial court erred in admitting the recorded statement that he provided to officers. In the statement, Sistrunk made clear that he had been actively involved in the use of illegal drugs for several years. He also alluded to the fact that he had been incarcerated. Sistrunk’s attorney not only failed to object to the introduction of the statement, but he stated that he preferred that the statement be admitted into evidence. Sistrunk also argues that the prosecutor committed prosecutorial misconduct in offering the statement into evidence because he had filed a motion in limine to prevent any evidence of his prior convictions or past bad conduct. Sistrunk fails to consider that it was his attorney who agreed to have the statement pre-marked and who later suggested that it be entered into evidence. Further, as stated, Sistrunk’s attorney did not seek to redact that portion of the tape that Sistrunk now contends was substantially prejudicial to his case. Therefore, the issue is procedurally barred. Issue 2: Ineffective assistance of counsel Sistrunk argues that he did not receive effective assistance of counsel because his attorney failed to object to the admission of the statement and failed to object to statements made by the prosecutor during his closing argument regarding Sistrunk’s prior convictions. The record is not adequate to allow a determination of whether Sistrunk’s attorney’s decision to allow the statement into evidence constitutes ineffective assistance of counsel, as it can be argued that Sistrunk’s attorney may have agreed to the admission of the statement with the hope that the jury would conclude that the charges against Sistrunk were filed not because he actually possessed the contraband, but because he refused to work as a confidential informant for the authorities. Sistrunk can raise this issue in a motion for post-conviction relief should he desire to do so. Issue 3: Discovery violation Sistrunk argues that he was unfairly surprised by the State’s failure to disclose during discovery that a forensic scientist with the Mississippi Crime Laboratory would testify that he possessed ten milligrams of hydrocodone. Sistrunk’s attorney failed to make a contemporaneous objection at trial. Thus, the issue is procedurally barred. Issue 4: Sufficiency of evidence Sufficient evidence exists to support Sistrunk’s conviction for possessing hydrocodone. Pursuant to section 41-29-139(c), a tablet constitutes a dosage unit. Therefore, Sistrunk violated the statute by possessing hydrocodone tablets for which he did not have a prescription. Although the testimony reveals that Sistrunk had a prescription for hydrocodone, he did not have a prescription for the ten milligrams that were found in his possession. |
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