Hosey v. State
| Docket Number: | 2010-KA-00602-COA Linked Case(s): 2010-KA-00602-COA ; 2010-CT-00602-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-14-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Possession of cocaine with intent to distribute - Sufficiency of evidence - Verdict - Exclusion of witness - M.R.E. 401 - M.R.E. 402 - Prior convictions - M.R.E. 404(b) - Lay opinion testimony - M.R.E. 701 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-18-2010 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: Convicted of Possession of a Controlled Substance with Intent to Distribute and Sentenced as a Habitual Offender to Thirteen Years in the Custody of the Mississippi Department of Corrections, Without Eligibility for Parole or Probation District Attorney: Cono A. Caranna, II Case Number: B2401-09-00729 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jherashio Ramandes Hosey |
GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: 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 with intent to distribute - Sufficiency of evidence - Verdict - Exclusion of witness - M.R.E. 401 - M.R.E. 402 - Prior convictions - M.R.E. 404(b) - Lay opinion testimony - M.R.E. 701 |
| Summary of the Facts: | Jherashio Hosey was convicted of possession of cocaine with the intent to distribute it. He was sentenced as a habitual offender to thirteen years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Hosey argues that the evidence is insufficient to find him guilty of possession of cocaine with the intent to distribute, because no one testified that he sold cocaine. An officer testified that he watched a video feed from a pole camera at a street intersection as Hosey made several hand-to-hand transactions with people. Another officer testified that Hosey attempted to evade him and, in the process, Hosey discarded cocaine. Hosey argues that it was just as likely that he was purchasing drugs or something else. That might very well have been within the realm of possibilities, but resolution of that question was a matter for the jury. Issue 2: Verdict Hosey argues the jury did not find him guilty of possession with intent to distribute, transfer, or sell it. Hosey's argument is based on a constructive interpretation of the form of the jury's verdict which read: "We, the jury, find the defendant, Jherashio Ramandes Hosey, guilty of possession of controlled substance with intent." According to Hosey, because the instruction omitted the specific intent referenced within it, the jury’s verdict does not reflect what Hosey’s intent was. Because Hosey did not object to the jury instruction, he is procedurally barred from arguing that the circuit court erred when it submitted that instruction. Issue 3: Exclusion of witness Hosey argues that the court erred in prohibiting a witness from testifying on Hosey’s behalf. The witness appeared unexpectedly at approximately noon during the second day of Hosey’s trial. The circuit court held that the witness’s testimony was inadmissible because it was irrelevant. If the witness was not able to testify to any matters that tended to make the existence of a fact that is of consequence to the determination of the action more or less probable, then her testimony was irrelevant under M.R.E. 401 and 402. The witness could neither verify nor deny that Hosey had been transferring narcotics before he was arrested. Furthermore, she stated that she could not see whether Hosey had discarded any narcotics while law-enforcement officers attempted to apprehend Hosey. Whether Hosey possessed narcotics and whether he intended to distribute narcotics were matters that were of consequence to the determination of Hosey’s trial. Thus, the circuit court acted within its discretion when it concluded that the witness’s testimony did not make either one of those questions more or less probable. Issue 4: Prior convictions Hosey argues that the circuit court erred when it allowed the prosecution to introduce evidence that Hosey had two prior convictions involving the transfer of a controlled substance. Under M.R.E. 404(b), evidence of prior sales is admissible to show or prove intent to distribute. Issue 5: Opinion testimony Hosey argues that the circuit court erred when it allowed a police officer to testify that, based on his observation of the events depicted in the video feed from the pole camera, it was his opinion that Hosey was transferring or selling drugs. A lay witness may not express an opinion on an ultimate issue. Furthermore, a lay witness may testify regarding an opinion that is based upon his personal perceptions, and that will help the jury fairly resolve a controverted, material fact. Here, the officer did not express an opinion on the ultimate issue. He did not opine that Hosey was selling narcotics. At best, he opined that, based on his observations, it was necessary to dispatch law-enforcement officers to further investigate behavior that he considered suspicious. Thus, it was admissible under M.R.E. 701. |
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