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Malik v. State

Court of Appeals of Mississippi

December 5, 2017

NITIN MALIK A/K/A NATIN MALIK A/K/A MATIN MALIK APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/11/2015

         RANKIN COUNTY CIRCUIT COURT TRIAL HON. WILLIAM E. CHAPMAN III JUDGE

          ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER RICHARD ANTHONY FILCE

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON

          BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

          GRIFFIS, P.J.

         1. Nitin Malik was convicted of two counts of the sale of hydrocodone with acetaminophen, a schedule III controlled substance, in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2013). He was sentenced to two consecutive eight-year terms. The Rankin County Circuit Court denied Malik's posttrial motion. Malik now appeals. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On May 3, 2013, the Mississippi Bureau of Narcotics (MBN) sent a confidential informant (CI) into Hometown Quickie, a convenience store located in Richland. The CI went there to purchase hydrocodone with acetaminophen pills, more commonly known as Lorcet 10 pills. The MBN agents equipped the CI with an audio-and-video recording device, fifty dollars, and a vehicle. When the CI entered the store, she encountered Malik and after several minutes of random conversation, requested "eight for forty." This transaction was captured on the audio recording but not on video.

         ¶3. Immediately after the purchase, the CI met with an MBN agent and turned over eight pills and ten dollars change. The pills were sent off to a crime lab and tested positive for hydrocodone with acetaminophen, or Lorcet 10 pills. The pills were later used as evidence against Malik. MBN did not immediately arrest Malik; instead the agency continued building a case against him.

         ¶4. On June 3, 2013, an MBN agent and the CI worked together to make another purchase from Malik. The CI allegedly prearranged a meeting with Malik. The CI again drove to the convenience store and purchased pills from Malik. The CI purchased ten pills for fifty dollars. This subsequent transaction was not captured on audio or video recording because the device's battery died shortly before the transaction began.

         ¶5. On this occasion, the MBN agent followed the CI to the store and watched her go inside. The agent waited outside and listened to the transaction through his equipment, which worked with the CI's device. Once the task was complete, the MBN agent met with the CI and collected the bag of pills. The crime lab confirmed that the ten pills contained hydrocodone with acetaminophen.

         ¶6. On September 3, 2014, a grand jury returned a four-count indictment on Malik. Malik was charged with two counts of the sale of a controlled substance (Counts I and III) and two counts of conspiracy to sell a controlled substance (Count II and IV). On May 4, 2015, the case proceeded to trial on Counts I and III only. Counts II and IV were ordered nolle prosequi[1] pursuant to the State's motion that in exchange for Malik's guilty plea on Counts I and III, the conspiracy charges would be abandoned. Notably, the State did not pursue the conspiracy charges after Malik elected to proceed with a trial.

         ¶7. Following a two-day jury trial, Malik was found guilty on both counts. On May 11, 2015, he was sentenced to eight years on Count I, for the sale of less than ten dosage units, and he received an eight-year sentence on Count III, for the sale of ten dosage units but less than twenty dosage units. The sentences were order to run consecutively, with all time to be served in the custody of the Mississippi Department of Corrections.

         ¶8. Malik timely filed posttrial motions for a new trial and an amended motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Within his motion he also requested a hearing to allow testimony of witnesses for completion of the record. Malik asserted that (1) the State failed to provide the defense with exculpatory evidence during discovery, (2) the State made improper closing arguments, (3) the trial court erred in allowing evidence of prior bad acts, and (4) his counsel was ineffective. Following a hearing on August 29, 2016, the circuit judge found that the motions were not supported by the evidence in the case. The motions were denied. Aggrieved, Malik appeals and asserts the same. We find no error and affirm.

         ANALYSIS

         ¶9. On appeal, Malik raises each issue asserted below. He asserts that each issue is inextricably intertwined and resulted in prejudice to him during the trial. We address each separately.

         I. ...


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