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Barber v. State

Court of Appeals of Mississippi

June 20, 2017

TERRY LYNN BARBER A/K/A TERRY L. BARBER A/K/A TERRY BARBER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/14/2016

         PANOLA 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.

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. 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.

         SUMMARY OF FACTS AND PROCEDURAL HISTORY

         ¶2. 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 methamphetamine.

         ¶3. 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 wallet.

         ¶4. 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.

         ¶5. 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 Lab.[1] 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.

         ¶6. 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.[2] 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 ...


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