MAJOR LEE A/K/A MAJOR LEE JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/18/2009
LOWNDES COUNTY CIRCUIT COURT, HON. JAMES T. KITCHENS JR.
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
GRIFFIS, C.J., WESTBROOKS AND TINDELL, JJ.
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.
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.
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.
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.
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.
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 ...