TERRY LYNN BARBER A/K/A TERRY L. BARBER A/K/A TERRY BARBER APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/14/2016
COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, HON. JAMES
MCCLURE III TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN TAYLOR COOK.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER.
DISTRICT ATTORNEY: JOHN W. CHAMPION.
LEE, C.J., BARNES AND WESTBROOKS, JJ.
Terry Lynn Barber was convicted of possession of
methamphetamine and sentenced to three years in the custody
of the Mississippi Department of Corrections (MDOC) as a
habitual offender without eligibility for parole. He claims
on appeal that his defense counsel was ineffective in failing
to request a jury instruction on circumstantial evidence.
Finding no error, we affirm.
OF FACTS AND PROCEDURAL HISTORY
On June 28, 2015, Deputy Rob Roberson of the Panola County
Sheriff's Department conducted a traffic stop of
Barber's vehicle on Interstate 55, as Barber had crossed
the "fog line" on the shoulder of the road.
Barber's son, Cody Dylan Barber, was a passenger in the
car. Deputy Roberson became suspicious after Barber and Cody
gave conflicting information about where they had been that
evening, and he asked for permission to search the vehicle.
Barber consented, and the search of the vehicle revealed
several small baggies used in the sale of narcotics and one
baggie containing a crystalline white powder under the
passenger's seat, which was later confirmed to be
Barber and Cody were arrested and transported to the Panola
County Detention Center. Officer Steven Moore collected
Barber's personal effects, including his wallet, and took
inventory of the items. The items were securely stored in the
facility's property storage area. Two days later,
Barber's wife visited the jail and asked Deputy Bob
Brownlee if she could pick up Barber's debit card. The
deputy opened the secured bag containing Barber's
personal effects and retrieved Barber's wallet. While
looking through the wallet to get the debit card, Deputy
Brownlee observed a bag of methamphetamine fall out of the
Barber and Cody were indicted on November 4, 2015, on one
count of conspiracy to possess methamphetamine and one count
of possession of methamphetamine in the amount of at least
two grams but less than ten grams. Barber was charged as a
habitual offender under Mississippi Code Annotated section
99-19-81 (Rev. 2015). Cody claimed responsibility for the
drugs found in the car; so the State reduced the charges
against Barber to possession of methamphetamine of at least
one-tenth gram but less than two grams for the bag discovered
in Barber's wallet.
A jury trial was held on February 16, 2016, in Panola County
Circuit Court. Officer Moore testified that he opened the
main compartment of the wallet to inventory any cash, but he
did not look in the "small individual pockets" and
noted nothing unusual about the wallet. Deputy Brownlee
testified that when he went to retrieve the wallet, the bag
containing Barber's personal effects "was secured,
tied up like all of them are." When Deputy Brownlee
pulled out the debit card, he "pulled out a sack of what
looked like methamphetamine with it." He immediately
contacted a narcotics agent, Tyler Mills, who said that he
took the item that fell from the wallet, put it into an
evidence bag, and sent it to the Mississippi Crime
Barber testified that he left his wallet on the dashboard of
his car while talking with Deputy Roberson and that the
deputy "looked through [his] wallet." He stated
that the wallet was left in the vehicle, and another officer
brought it to him upon arrival at the jail. When he arrived
at the jail, Barber said he and Officer Moore "went
through [the wallet], " and he retrieved cards out of
his wallet at that time. But Barber later said that Deputy
Roberson's testimony - that Barber had his wallet when he
was booked at the jail - was true. On rebuttal, Officer Moore
said Barber got the cards after the drugs were found.
Barber was convicted of possession of methamphetamine of at
least one-tenth gram but less than two grams. The trial court
sentenced Barber to three years in the custody of the MDOC as
a habitual offender without eligibility for parole, and
ordered him to pay a fine of $500. Barber filed a motion for a
new trial or, in the alternative, a judgment notwithstanding
the verdict, which the trial court denied. On appeal, Barber
contends that his defense counsel's failure to request a
jury instruction ...