Thompson v. State
| Docket Number: | 2008-KA-01946-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-27-2010 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of marijuana - Right to counsel - URCCC 8.05 - Hearsay - M.R.E. 404(b) - Right of confrontation - Weight of evidence Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-01-2007 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: David H. Strong Disposition: CONVICTED OF COUNT I, POSSESSION OF MORE THAN 500 GRAMS BUT LESS THAN ONE KILOGRAM OF MARIJUANA WITH THE INTENT TO DISTRIBUTE WITHIN 1,500 FEET OF A CHURCH, AND SENTENCED TO TWENTY YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND COUNT II, UNLAWFUL POSSESSION OF MORE THAN TEN GRAMS BUT LESS THAN THIRTY GRAMS OF COCAINE WITH THE INTENT TO DISTRIBUTE WITHIN 1,500 FEET OF A CHURCH, AND SENTENCED TO FIFTEEN YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRE District Attorney: Dee Bates Case Number: 07-222-PKS-PKT |
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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: | David Bernard Thompson |
JOSEPH A. FERNALD, JR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: STEPHANIE BRELAND WOOD | ||
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 marijuana - Right to counsel - URCCC 8.05 - Hearsay - M.R.E. 404(b) - Right of confrontation - Weight of evidence |
| Summary of the Facts: | In Count I, David Thompson was convicted of possession of more than 500 grams but less than one kilogram of marijuana with the intent to distribute within 1,500 feet of a church. In Count II, he was convicted of possession of more than ten grams but less than thirty grams of cocaine with intent to distribute within 1,500 feet of a church. For Count I, the court sentenced Thompson to twenty years, with five years suspended and fifteen years to serve followed by five years of post-release supervision. In Count II, the court sentenced Thompson to fifteen years, with five years suspended and ten years to serve followed by five years of post-release supervision. Thompson appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to counsel Thompson elected to represent himself at trial. He now argues that he did not properly waive his right to counsel. Pursuant to the Sixth Amendment to the United States Constitution, every criminal defendant has a right to assistance of counsel. Implicit in this right is the right to waive counsel, thus insuring the right of a defendant to conduct his or her own defense. But, a defendant may not waive assistance of counsel, represent himself at trial, and then claim he was denied assistance of counsel on a motion for a new trial or appeal. When a criminal defendant insists on representing himself, a circuit court must inform that defendant of his rights in accordance with the requirements of URCCC 8.05. If the defendant maintains his desire to proceed pro se, the circuit court should determine whether the defendant has exercised this right knowingly and voluntarily and, if so, make the finding a matter of record. Here, the circuit court not only met the requirements of Rule 8.05, but it far surpassed them. After discussion and encouragement by the circuit court, Thompson finally agreed to allow an attorney to assist him in an advisory role. The circuit court also informed Thompson that proceeding pro se was not in his best interest. There is nothing more that the trial court could have done. Issue 2: Hearsay Thompson argues the circuit court allowed the prosecution to elicit inadmissible hearsay testimony from an officer. Thompson is procedurally barred from raising this issue on appeal, as he objected to the testimony on the ground of relevancy rather than testimonial hearsay. The officer’s testimony was offered to show how Thompson came under investigation. There was no error in allowing the testimony. The testimony was not prejudicial. A significant amount of marijuana and cocaine was found in a house undisputed to be Thompson’s. Additionally, authorities found small plastic bags, a scale, and a large amount of money in Thompson’s home. The officer’s testimony regarding those events was admissible pursuant to M.R.E. 404(b) to demonstrate the intent element of both counts of possession of narcotics with intent to distribute them. Issue 3: Right of confrontation Thompson claimed that the assistant district attorney in Pike County was present during the search of his house. Thompson sought to call the assistant district attorney as a witness, but the court refused his request. Thompson now argues that the circuit court infringed on his right to confront witnesses against him. Mississippi’s Constitution provides that an accused of right may have compulsory process for obtaining witnesses in his favor, but this does not mean he may subpoena anybody or anything as he pleases. The assistant district attorney was not a necessary witness, as he had nothing of significance to offer at trial. Issue 4: Weight of evidence Thompson argues that the verdict of the jury is contrary to the weight of credible evidence. Authorities seized the following evidence as a result of the search of Thompson’s home: approximately 105 grams of marijuana in the stove; approximately 408 grams of marijuana, small sandwich bags, and a “finger scale” in the closet of the master bedroom; approximately 456 grams of marijuana in Thompson’s clothing; approximately 20 grams of crack cocaine in the freezer or refrigerator; and $2,000 in cash under the mattress of the bed in the master bedroom. Additionally, Thompson’s home is within 1,500 feet of Mt. Olive Baptist Church. Viewing the evidence in the light most favorable to the jury’s verdicts, the guilty verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. |
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