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Ray v. State

Supreme Court of Mississippi

January 18, 2018

GARRETT EUGENE RAY a/k/a GARRETT E. RAY a/k/a GARRETT RAY
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 09/21/2016

         STONE COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS, JR. TRIAL JUDGE

          TRIAL COURT ATTORNEYS: THERESSIA AUDREY LYONS MATTHEW DRAKE BURRELL JIM L. DAVIS, III

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

          BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.

          MAXWELL, JUSTICE

         ¶1. Garrett Eugene Ray's appointed appellate counsel filed a Lindsey brief, certifying she had thoroughly examined the record and found no arguable issues supporting Ray's appeal.[1] Ray has opted to file a pro se brief. In it, he argues the crack cocaine found in a cigarette pack he tried to discard when approached by officers was unlawfully obtained. He also insists the State violated his constitutional right to confront an informant who provided information to narcotics officers, leading to his drug arrest. This Court disagrees with both of Ray's assertions.

         ¶2. Ray abandoned the cocaine by throwing it out of his vehicle's window. Thus, the drugs were not seized in violation of the Fourth Amendment. Furthermore, the informant did not testify and was not an eyewitness to or a participant in Ray's drug possession. Nor were the informant's statements used against Ray. So the State was not obligated to disclose his or her identity, and there is no Sixth Amendment Confrontation Clause violation.

         ¶3. We affirm.

         Background Facts and Procedural History

         ¶4. Investigators with a Stone County narcotics task force received a tip from an informant about an unknown individual offering to sell crack cocaine. On January 15, 2013, Investigators Aaron Grob and Chris Ory met with the informant. The investigators directed the informant to arrange, by phone, a drug sale with this individual for later that day. The drug sale would take place at a gas station on Highway 49 in McHenry, Mississippi.

         ¶5. Testimony from a pretrial hearing showed the informant called Grob and Ory and told them that a black male, driving a white SUV, would be traveling from Harrison County into Stone County. And the SUV would park on the north side of the gas station's parking lot. Investigators Grob and Ory were given the dealer's phone number. Grob and Ory left the task force office and traveled to McHenry, Mississippi. The informant was not with them.

         ¶6. The investigators set up surveillance at McDaniel's Country Store across Highway 49 from the gas station. Less than an hour later, they spotted a black male driving a white Toyota Sequoia pull into the gas station parking lot. The driver parked on the gas station's north side. The vehicle had a Harrison County license plate, matching the description the investigators had received.

         ¶7. Investigators Grob and Ory drove across Highway 49 from McDaniel's to the gas station. Ory got out of the vehicle and approached the SUV from the front. Meanwhile, Grob drove around the gas station and parked behind the SUV. Grob called the number provided by the informant. He then watched the driver answer a cell phone and begin speaking. Ory also observed Grob make the call and saw the driver answer a cell phone and begin speaking.

         ¶8. At this point, Grob got out of his vehicle and approached the SUV on the passenger's side. The investigators were in plain clothes but had their badges visibly displayed around their necks. Both identified themselves as law enforcement. The driver's attention was focused on Grob. Not seeing Ory approach from the front driver's side, the driver threw a green Newport cigarette pack out the driver's window. The cigarette pack hit Ory in the chest, and he caught it in his hands.

         ¶9. The investigators then removed the driver from the SUV, handcuffed him, and explained why they were detaining him. At trial, both investigators identified Ray as the driver.

         ¶10. Ray initially claimed they had "the wrong guy." But he immediately backtracked and said "you've got me, sir." Once Ray was in handcuffs, Ory and Grob opened the cigarette pack and found two individually wrapped, rock-like substances, along with some cigarettes. A ...


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