Clarence DeJuan Anderson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-00239-COA

CLARENCE DEJUAN ANDERSON A/K/A APPELLANT
CLARENCE ANDERSON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/20/2013
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, POSSESSION
OF A CONTROLLED SUBSTANCE WITH
INTENT TO DISTRIBUTE, AND
SENTENCED AS A HABITUAL OFFENDER
TO THIRTY-FIVE YEARS WITHOUT THE
POSSIBILITY OF PAROLE; AND COUNT II,
POSSESSION OF A WEAPON BY A
CONVICTED FELON, AND SENTENCED
AS A HABITUAL OFFENDER TO TEN
YEARS WITHOUT THE POSSIBILITY OF
PAROLE, WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: AFFIRMED – 01/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.
JAMES, J., FOR THE COURT:

¶1. On April 15, 2013, Anderson was indicted on one count of possession of controlled

substance with intent to distribute in violation of Mississippi Code Annotated section 41-29-

139(a)(1) (Supp. 2015), with an enhanced penalty under Mississippi Code Annotated section

41-29-147 (Rev. 2013), and as a habitual offender under Mississippi Code Annotated section

99-19-81 (Rev. 2015). Anderson was also indicted on one count of unlawful possession of

a firearm as a convicted felon under Mississippi Code Annotated section 97-37-5 (Rev.

2015), and as a habitual offender under Mississippi Code Annotated section 99-19-81.

Following a two-day trial, the jury found Anderson guilty on both counts. Anderson appeals

to this Court arguing that the trial court erred by admitting certain evidence and refusing a

lesser-included-offense jury instruction. He also argues that he received ineffective

assistance of counsel. Finding no error, we affirm the trial court’s judgment of conviction.

FACTS AND PROCEDURAL HISTORY

¶2. On March 9, 2012, Agent Brian Sullivan, of the Mississippi Bureau of Narcotics and

the Drug Enforcement Administration, received a call from a confidential informant. The

informant told Agent Sullivan that while she was at a house with several individuals located

at 828 26th ½ Street, Gulfport, Mississippi, she observed approximately six ounces of

cocaine on a table. Agent Sullivan obtained a search warrant for the house.

¶3. Agents executed the warrant and found Anderson, a woman, and a young child inside.

The agents also discovered three firearms, cocaine, and a large quantity of cash stacked on

the kitchen counter. The agents brought Anderson into an empty bedroom adjacent to the

2
living room, and read him his Miranda1 rights in order to question him. While speaking to

Anderson, Agent Sullivan discovered crack cocaine on a shelf in the bedroom closet. It was

later tested and determined to be 6.1 grams of cocaine base. Agent Adam Gibbons testified

that Anderson wished to cooperate. In doing so, Anderson told the agents that he had

received approximately a quarter kilogram of cocaine earlier in the day and was able to sell

all of it except for the amount that was discovered in the closet. Anderson also told the

agents that he was awaiting a delivery of $9,500 worth of cocaine that he had ordered from

his source, Demarcus Clark a/k/a Tutu. Anderson told Agent Sullivan that the cash on the

kitchen counter was proceeds from the narcotics that he had sold that day. Anderson further

cooperated by riding around the area with agents showing them places where drug activities

were taking place.

¶4. Agent Sullivan testified that Anderson listed 828 26th ½ Street as his address when

he was booked. However, Anderson took the stand at trial and testified that he did not list

that as his address, nor had he ever resided there. Anderson testified that he was living at 416

Westbury Lane in Gulfport at the time of his arrest. Anderson claimed that the house at 828

26th ½ Street belonged to an individual named Chelsea Daily, and he was babysitting there

while she was at work the day of his arrest. Anderson testified that his car was being

repaired, and he was dropped off there. He testified that he was unaware of any firearms or

drugs in the house. He also testified that he was unaware of any “type of criminal activity”

occurring at the house.

1
Miranda v. Arizona, 384 U.S. 436 (1966).

3
¶5. Anderson claimed the cash was from a tax-refund check that he had cashed.

Anderson testified that he lied to agents about Tutu just to tell them something because they

had asked about an individual named Tutu. However, on cross-examination Anderson

admitted that he was “probably” going to meet Tutu later that day because he had given him

$9,500. Anderson then testified that he was not “distributing” drugs; rather, he was “just a

middleman.”

¶6. The jury found Anderson guilty on both counts, and the trial court sentenced him to

thirty-five years without the possibility of parole on count one, possession of cocaine with

intent, and ten years without the possibility of parole on count two, unlawful possession of

a firearm by a convicted felon, with the sentences to run concurrently. Anderson filed a

motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. The trial

court denied Anderson’s motion.

¶7. Anderson now appeals to this court raising three issues: (1) whether the trial court

erred by admitting the two firearms discovered at the home, which were not identified in the

indictment; (2) whether he received ineffective assistance of counsel; and (3) whether the

trial court erred by refusing a requested instruction for the lesser-included offense of simple

possession. Finding no error, we affirm.

DISCUSSION

I. Whether the trial court erred by the admitting the two firearms
discovered at the home into evidence.

¶8. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility

of evidence.” Fisher v. State, 690 So. 2d 268, 274 (Miss. 1996). Unless the judge abuses

4
this discretion so as to be prejudicial to the defendant, this Court will not reverse the ruling.

Id.

¶9. In count two, the indictment charged Anderson, a convicted felon, with illegal

possession of a Smith & Wesson 9mm handgun. During the search of the house, two other

firearms were discovered. Anderson argues that he was “irreparably prejudiced” by the

admission of the two other firearms that were not identified in the indictment. Anderson

claims that the other firearms were irrelevant, and the only purpose the prosecution had in

introducing the firearms was to prejudice the jury by making Anderson appear to be a

dangerous person.

¶10. Often, direct evidence of the intent to sell illicit drugs is not available; however, there

are other factors beyond the mere quantity of illicit drugs that may support a reasonable

inference of intent to distribute. Jones v. State, 724 So. 2d 1066, 1070 (¶14) (Miss. Ct. App.

1998). “Such factors include the possession of firearms, based on the notion that those

trafficking in illegal narcotics cannot rely upon the normal processes of the law to enforce

and regulate their economic activity and must, instead, be prepared to provide their own

protection.” Id. (citing Martin v. State, 413 So. 2d 730, 733-734 (Miss. 1982)). Moreover,

this Court has held that various items usable in drug manufacture, such as weapons and a

large amount of cash, are considered consistent with the distribution of drugs. Jenkins v.

State, 757 So. 2d 1005, 1010 (¶24) (Miss. Ct. App. 1999) (holding that these various items

can be considered by the fact-finder as evidence of intent to sell). Here, the admission of the

two other firearms was not needed to prove unlawful possession of a firearm by a convicted

5
felon in count two of the indictment because the prosecution had offered the Smith &

Wesson 9mm handgun for that purpose. However, the prosecution introduced the two other

firearms that were discovered in the search, which was certainly relevant to Anderson’s

intent to distribute cocaine as charged in count one of the indictment. See id.

¶11. Anderson also argues that the other two firearms should have been excluded because

they constitute “other crimes, wrongs, or acts” under Mississippi Rule of Evidence 404(b).

“Under Rule 404(b), ‘evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith.’” Edwards v.

State, 124 So. 3d 105, 113 (¶35) (Miss. Ct. App. 2013) (quoting M.R.E. 404(b)). However,

the Mississippi Supreme Court has held that proof of another crime or act is allowed “when

it is so interrelated to the charged crime that it constitutes either a single transaction or

occurrence or a closely related series of transactions or occurrences.” Brown v. State, 890

So. 2d 901, 912 (¶32) (Miss. 2004). Here, the two other firearms were found in the same

master bedroom, and at the same time, as the Smith & Wesson 9mm handgun during the

execution of the search warrant. The possession and discovery of the other two firearms

were so interrelated to the charged crime of possession with intent to distribute cocaine that

these events constituted a single transaction or occurrence. Thus, the admission of the two

other firearms discovered along with the Smith & Wesson 9mm handgun at the time of

Anderson’s arrest did not violate Rule 404(b).

¶12. Accordingly, we find that the trial court did not abuse its discretion by determining

that the two other firearms were relevant and allowing them to be admitted.

6
II. Whether Anderson received ineffective assistance of counsel.

¶13. “Generally, a claim of ineffective assistance of counsel will only be addressed on

direct appeal when (1) the record affirmatively shows ineffectiveness of constitutional

dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court

to make the finding without consideration of the findings of fact of the trial judge.” Reynolds

v. State, 136 So. 3d 452, 456 (¶10) (Miss. Ct. App. 2014) (citing Gill v. State, 126 So. 3d

128, 133-34 (¶27) (Miss. Ct. App. 2013)). This Court’s review of an

ineffective-assistance-of-counsel claim on direct appeal is confined strictly to the record.

Reynolds, 136 So. 3d at 456 (¶10). Anderson stipulated that the record is adequate for this

Court to determine his ineffective-assistance-of-counsel claim without findings of fact by the

trial court.

¶14. In order to demonstrate ineffective assistance of counsel, Anderson must show (1) his

counsel's performance was deficient, and (2) the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “In considering a claim of

ineffective assistance of counsel, an appellate court must strongly presume that counsel's

conduct falls within a wide range of reasonable professional assistance, and the challenged

act or omission might be considered sound trial strategy.” Liddell v. State, 7 So. 3d 217, 219-

20 (¶6) (quoting Bennett v. State, 990 So. 2d 155, 158 (¶9) (Miss. 2008)). “Decisions that

fall within the realm of trial strategy do not amount to ineffective assistance of counsel.”

Pittman v. State, 121 So. 3d 253, 258 (¶14) (Miss. Ct. App. 2013). “Counsel's decisions

whether or not to file motions, call certain witnesses, ask certain questions, and make certain

7
objections fall within the definition of trial strategy.” Id.

a. Whether Anderson’s trial counsel was
constitutionally ineffective for not stipulating to
Anderson’s prior felony conviction.

¶15. Anderson claims that his attorney was constitutionally ineffective because he did not

stipulate to Anderson’s prior felony conviction in relation to the charge of unlawful

possession of a firearm by a convicted felon.

¶16. Anderson’s counsel did not stipulate to Anderson’s prior felony conviction in relation

to the felon-in-possession-of-a-firearm charge in count two. Officer Sullivan testified that

Anderson was previously convicted of a felony for possession of a controlled substance with

the intent to distribute in 2006. The prior felony conviction was a necessary element of the

crime of felon in possession of a firearm. A stipulation that Anderson was a felon would

have been futile because the prosecution also offered that prior conviction for the purpose

of proving intent in relation to the possession with intent to distribute cocaine in count one.

Therefore, Anderson's counsel was not deficient for not stipulating the prior felony

conviction, and Anderson suffered no prejudice as a result.

b. Whether Anderson’s trial counsel was
constitutionally ineffective for not objecting to the
admission of Anderson’s prior drug-related felony
conviction.

¶17. Anderson also claims that his trial counsel was constitutionally ineffective for not

objecting to the use of Anderson’s prior drug-related felony conviction as proof of intent to

distribute cocaine.

¶18. Mississippi Rule of Evidence 404(b) provides:

8
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for other purposes
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

M.R.E. 404(b).

¶19. Evidence of prior involvement in the drug trade is admissible to prove intent to

distribute. Holland v. State, 656 So. 2d 1192, 1196 (Miss. 1995). Evidence of prior acts

offered to show intent to distribute is not barred by Rule 404 and is properly admissible if it

passes muster under Rule 403 and is accompanied by a proper limiting instruction. Swington

v. State, 742 So. 2d 1106, 1112 (¶15) (Miss. 1999). Here, the prosecution offered evidence

of the prior drug-related conviction for the purpose of proving intent to distribute. See

Campbell v. State, 118 So. 3d 598, 603 (¶13) (Miss. Ct. App. 2012) (holding that evidence

of prior drug-sale convictions is admissible under Rule 404(b) to prove intent to distribute

if it passes the Rule 403 balancing test). The trial court then properly conducted a Rule 403

balancing test, and found that the probative value was not substantially outweighed by the

danger of unfair prejudice. The trial court also gave a limiting instruction. Accordingly,

Anderson’s trial counsel was not constitutionally ineffective for not objecting to the

admission of the prior felony conviction.

III. Whether the trial court erred by refusing an instruction for the
lesser-included offense of simple possession.

¶20. Anderson argues that the trial court erred by refusing his request for an instruction on

the lesser-included offense of simple possession of cocaine. We disagree.

¶21. “A possession offense meets the definition of a lesser-included offense because it is

9
an offense necessarily committed along with the offense charged of possession with intent.”

Gregory v. State, 96 So. 3d 54, 60 (¶26) (Miss. Ct. App. 2012). While the State or defendant

may request and obtain a lesser-included offense instruction, the principal requirement for

giving the instruction is that there is evidence to support it. Edwards, 124 So. 3d at 109 (¶9).

“If a rational or a reasonable jury could find the defendant not guilty of the principal offense

charged in the indictment yet guilty of the lesser-included offense, then a

lesser-included-offense instruction is warranted.” Gregory, 96 So. 3d at 60 (¶27) (citing

Mease v. State, 539 So. 2d 1324, 1330 (Miss. 1989)). However, “[a] trial court should refuse

a proposed lesser-included instruction when the evidence presented could only justify a

conviction of the principal charge.” Booze v. State, 964 So. 2d 1218, 1221 (¶13) (Miss. Ct.

App. 2007) (citing Jones v. State, 798 So. 2d 1241, 1253 (¶38) (Miss. 2001)).

¶22. Anderson’s own testimony also eliminates the possibility that he was guilty of simple

possession. Initially, Anderson testified that he was unaware of any drugs or any type of

criminal activity whatsoever occurring in the house. On cross-examination, however,

Anderson gave the following incriminating testimony:

Q: . . . Did you tell Agent Sullivan, I gave money to Tutu?

A: Yes, I did. Yes, I did.

Q: And Tutu’s on the way to the house?

A: Yes, I did.

Q: With cocaine for me?

A: No, not for me, but cocaine was on the way.

10
Q: To the very house where you were?

A: No, ma’am.

Q: Where was Tutu going with the cocaine?

A: Probably his daddy house. You know, I probably would meet him
down there. But it wasn’t coming there, not to that address.

Q: So you were going to meet Tutu somewhere?

A: Probably, yes.

Q: Is that because the kids were in the house?

A: No. It just because, okay, if you give somebody [$]9[,]500 for 11
ounces, okay, I gave it to him for 11 ounces, they come get it, and they
gone. I’m not distributing. I’m just a middleman.

Q: You’re just the middleman?

A: Yeah.

....

Q: Okay. And you had given money to Tutu, and he was coming with
drugs for you? Y’all were going to meet somewhere?

A: Yes, ma’am.

Q: And . . . you don’t really consider yourself the dealer because you’re
just the middleman?

A: Yes, ma’am.

Q: So who are you the middleman between, Tutu and who? Who’s the
guy on the other end?

A: Just various people, you know. They’ll come to me and call, and they’ll
ask me to get them this and get them that. They give me their money,
I can do it. That’s all.

11
¶23. For a jury to find Anderson guilty for simple possession, it would have to disregard

Anderson’s initial testimony that he was unaware of any drugs in the house as well as his

admission that he was “just a middleman.” Anderson cites Perry v. State, 637 So. 2d 871,

877 (Miss. 1994), to support his argument that he was entitled to the lesser-included-offense

instruction for simple possession. However, in Perry, the defendant admitted to using

marijuana, and the amount of marijuana found was not so large as to preclude the purpose

of personal use. Id. Unlike Perry, there was no evidence presented that the cocaine was for

Anderson’s own personal use. No reasonable jury could have found Anderson guilty of the

lesser-included offense of simple possession based on the evidence presented at trial.

¶24. The evidence presented could only justify a conviction of the principal charge of

possession with intent. Thus, the trial court did not err by refusing the lesser-included-

offense instruction of simple possession.

CONCLUSION

¶25. Because Anderson’s claims are without merit, we affirm the judgment of conviction

entered by the trial court.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
FIRST JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, POSSESSION OF
A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE, AND
SENTENCE AS A HABITUAL OFFENDER OF THIRTY-FIVE YEARS WITHOUT
THE POSSIBILITY OF PAROLE; AND COUNT II, POSSESSION OF A WEAPON
BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF
TEN YEARS WITHOUT THE POSSIBILITY OF PAROLE, WITH THE
SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND WILSON,

12
JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION.

13