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McSwain v. State

Court of Appeals of Mississippi

October 28, 2014

GYRONE MARCELL MCSWAIN A/K/A GYRONE MCSWAIN, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/05/2013. TRIAL JUDGE: HON. ROBERT B. HELFRICH. TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCED TO SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED FOR POSTRELEASE SUPERVISION, AND ORDERED TO PAY A $2,500 FINE AND $550 IN RESTITUTION.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS.

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

OPINION

Page 967

IRVING, P.J.

¶1. A Forrest County jury convicted Gyrone Marcell McSwain of possession of a controlled substance. The circuit court sentenced him to sixteen years in the custody of the Mississippi Department of Corrections, with twelve years to serve and four years suspended for post-release supervision. McSwain appeals.

¶2. His appellate counsel filed a Lindsey [1] brief, certifying that he believes that there was no error at the trial stage. McSwain filed a pro se supplemental brief, alleging that: (1) the search of his house was illegal; (2) he received ineffective assistance of counsel; and (3) various instances of misconduct occurred during the trial. Finding no error, we affirm McSwain's conviction and sentence.

FACTS

¶3. On December 8, 2011, officers with the Hattiesburg Police Department executed a search warrant for a residence located at 405 East Fifth Street in Hattiesburg, Mississippi. A few days earlier, officers had made a " controlled buy" of crack cocaine at the same address from Tyrone McSwain, McSwain's's fraternal twin brother, giving them probable cause to obtain the search warrant. When officers arrived to execute the warrant, they identified McSwain leaving the residence, heading toward his car. An officer detained McSwain, while others searched and secured the residence.

¶4. Police found two pistols above the door frame of a bedroom that contained items connecting McSwain to the bedroom. In the bedroom, police found mail addressed to McSwain. They also found a picture of McSwain affixed to the mirror of the dresser in the bedroom. On the same dresser, they found what they believed to be crack cocaine. In the bedroom closet, police found one bag of a substance that appeared to be crack cocaine, a scale, and a cologne box containing $4,800 in cash. The Mississippi Crime Lab performed a

Page 968

forensic analysis of the substance found in the bedroom, and the substance tested positive for cocaine. Mail addressed to Tyrone and other narcotics were found elsewhere in the house. Tyrone appeared at the residence during the search and was also arrested.

¶5. McSwain was indicted for one count of possession of a controlled substance with the intent to distribute, with a firearm enhancement under Mississippi Code Annotated section 41-29-139 (Supp. 2014). During the trial, while testifying in his defense, McSwain admitted living at 405 East Fifth Street with his brother, Tyrone, and a nephew and having keys to the house. However, McSwain maintained that the drugs found in the bedroom were not his. After his trial, a jury convicted McSwain of possession of a controlled substance. The circuit court sentenced McSwain to sixteen years in the custody of ...


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