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Lee v. State

Court of Appeals of Mississippi

January 29, 2019

MAJOR LEE A/K/A MAJOR LEE JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/18/2009

          LOWNDES COUNTY CIRCUIT COURT, HON. JAMES T. KITCHENS JR. JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: FORREST ALLGOOD

          BEFORE GRIFFIS, C.J., WESTBROOKS AND TINDELL, JJ.

          TINDELL, J.

         ¶1. A Lowndes County jury found Major Lee guilty of possession of cocaine with the intent to sell and possession of marijuana. See Miss. Code Ann. § 41-29-139 (Rev. 2009). After allowing amendment to the indictment, the Lowndes County Circuit Court found Lee to be a habitual offender within the meaning of Mississippi Code Annotated section 99-19-81 (Rev. 2007) and a prior offender under the Uniform Controlled Substances Law, Mississippi Code Annotated section 41-29-147 (Rev. 2009). The trial court sentenced Lee to concurrent sentences of sixty years and six years and fined him a total of $2, 006, 000. Lee filed an unsuccessful pro se motion for a new trial or, alternatively, for a judgment notwithstanding the verdict (JNOV). Lee now appeals asserting two errors: prosecutorial misconduct and improper amendment to the indictment. Finding no error, we affirm.

         FACTS

         ¶2. On August 10, 2006, a Columbus police officer attempted to lawfully stop a vehicle. The vehicle failed to stop and led police on a chase. Other officers joined in the vehicle pursuit. Upon reaching a dead end, the vehicle stopped, and Officers Brad Ray and Eric Lewis saw Lee run from the vehicle. Both officers saw Lee fleeing with a clear plastic bag on his right side. To Officer Ray, it looked like a bag of marijuana. Lee attempted to climb a fence but was apprehended in the process. The officers grabbed Lee when the upper half of his body was hanging over the fence with his legs on the officers' side of the fence. Upon apprehending Lee, the officers discovered he was no longer carrying the plastic bag.

         ¶3. After handcuffing Lee, Officer Ray found $480 in Lee's pocket. The officers also found a bag of marijuana hanging from the fence where they apprehended Lee. A corner of that bag could be seen caught in the slats on the officers' side of the fence. After retrieving the bag of marijuana and looking over the fence, Officer Lewis, a drug agent with the Columbus Police Department's narcotics division, saw and recovered a second smaller bag of what appeared to be cocaine. This second bag was on the ground on the side opposite the officers. The officers testified the second bag was small enough to have been concealed by Lee. Lee was charged with possession of marijuana and possession of cocaine with the intent to sell.

         ¶4. At trial, Officers Ray and Lewis identified Lee as the man they saw flee the traffic stop with a clear plastic bag before they pulled him off a fence and arrested him. Specifically, on the charge of possession of cocaine with intent to sell, the State presented evidence through police officers, who had experience with drug- and cocaine-related arrests, that the amount of drugs recovered had a street value between $1, 500 to $2, 500 and that the amount recovered was more than that possessed by a typical drug user. A forensic scientist from the Mississippi Crime Lab testified that the off-white, powdery substance in one of the bags was 20.44 grams of cocaine and that the plant material in the other bag was 97.2 grams of marijuana.

         ¶5. The jury found Lee guilty on both counts. During the sentencing phase of the trial, the trial court allowed amendment of the indictment to reflect Lee's status as a habitual offender under section 99-19-81 and a second or subsequent offender of the Mississippi Uniform Controlled Substance Law, section 41-29-147. On February 18, 2009, the trial court sentenced Lee as a habitual offender and second or subsequent drug offender to sixty years on Count I with a $2, 000, 000 fine, and to a concurrent six years on Count II with a $6, 000 fine.

         ¶6. Lee filed a pro se motion for a new trial or, alternatively, for a JNOV with the circuit clerk on July 27, 2010. A copy of that motion was sent to the district attorney, but a copy was not sent to the circuit court. Consequently, the matter was not set for hearing, and Lee's motion was not ruled upon. In 2016, upon Lee's petition, the Mississippi Supreme Court required a response from the circuit court, the district attorney, and Lee's trial counsel regarding the absence of an order ruling on Lee's motion. This resulted in the circuit court ruling on Lee's pending motion for a JNOV. The motion was denied. Now on appeal from the circuit court's order, Lee's appellate counsel submitted a brief asserting two issues: (1) prosecutorial misconduct; and (2) untimeliness of the amended indictment for sentencing as a habitual offender. Concerned that an issue regarding ...


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