DATE OF JUDGMENT: 07/09/2012.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. ROGER T. CLARK. TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE AND SENTENCED AS A HABITUAL OFFENDER TO SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF PAROLE OR PROBATION AND FINED $2,000,000.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD ALAN SMITH.
BEFORE LEE, C.J., ROBERTS AND JAMES, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Johnny Lee Floyd was convicted of possession of a controlled substance with intent to distribute. Floyd was sentenced as a habitual offender to serve sixty years in the custody of the Mississippi Department of Corrections, with no eligibility for parole or probation. Floyd was also ordered to pay a fine of $2,000,000.
¶2. Floyd now appeals, asserting the following issues: (1) the trial court erred in refusing jury instruction D-5, (2) the trial court erred in allowing evidence of his
prior convictions, (3) the evidence was insufficient, (4) the State failed to establish he was a habitual offender, and (5) the trial court erred in allowing evidence concerning the results of a field test for cocaine.
¶3. On October 20, 2010, the Gulfport Police Department received an anonymous call claiming Floyd was storing and selling cocaine from an apartment located at 3503 Hancock Avenue in Gulfport, Mississippi, and that Floyd was driving a white GMC Envoy. Officer Tim Adams helped conduct surveillance on the apartment and saw Floyd exit a white GMC Envoy, go into the apartment, leave the apartment after several minutes, and drive away. Officer Adams testified Floyd's hands were empty. Officer Chuck Koewers followed Floyd. Upon learning Floyd's license had been suspended, Officer Koewers conducted a traffic stop. Officer Koewers testified Floyd did not stop immediately and was moving around in the car. After approaching the car, Officer Koewers noticed white powder on the seats and on Floyd's mouth. Officer Koewers said it appeared Floyd was attempting to swallow something.
¶4. Officer Wendell Johnson assisted Officer Koewers with the traffic stop. Officer Johnson also noticed Floyd moving around in the car prior to stopping. Officer Johnson saw the white powder in the car and around Floyd's mouth. Additionally, Officer Johnson observed a clear plastic bag containing white residue. Floyd had $558 in his pocket. After arresting Floyd, Officer Johnson procured a search warrant for the apartment Floyd had previously entered. Upon entering the apartment, Officer Johnson spoke with Keisha Floyd, Floyd's sister. Keisha told Officer Johnson it was her apartment and that she shared it with her four children and Floyd. Keisha said Floyd had been staying with her for several months.
¶5. The officers searched the bedroom where Floyd had resided and found the following: a picture of Floyd on the dresser, digital scales in the closet, a bag of cocaine powder and a bag of crack cocaine in the closet, a receipt bearing Floyd's name, various municipal court documents bearing Floyd's name, Floyd's Social Security card, cocaine residue in the dresser drawer and under the bed, and a gun under the bed. The forensic scientist from the Mississippi Crime Lab testified that one of the bags of cocaine weighed 6.8 grams and the other weighed 26.7 grams.
¶6. Keisha testified that Floyd had lived with her at one time but moved out of her apartment in August 2010. Keisha stated Jerome Boose, her cousin, then moved into Floyd's old bedroom. Keisha never gave Floyd or Boose a key to the apartment. Keisha also denied speaking with Officer Johnson at the scene and informing him that Floyd was currently living with her. On cross-examination, Keisha admitted she never told the authorities Boose was living with her.
¶7. Boose testified he moved into Keisha's apartment in June 2010 and was living there at the time the police searched the apartment. Boose claimed ownership of the drugs, the gun, and the digital scales found in the search. On cross-examination, the State introduced a taped conversation between Boose and Floyd, discussing Boose's decision to testify at Floyd's trial. The State had only learned of Boose's involvement a few days prior to trial, and Officer Adams went to interview Boose at the correctional center where he was incarcerated at ...