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Fairley v. State

Supreme Court of Mississippi

May 2, 2019


          DATE OF JUDGMENT: 07/14/2017







          BEAM, JUSTICE

         ¶1. Andre Fairley was indicted by a Harrison County grand jury for one count of possessing two or more grams, but less than ten grams of cocaine with intent to distribute, and one count of possessing more than thirty grams, but less than one kilogram, of synthetic cannabinoid, with intent to distribute. Following a jury trial at which Fairley represented himself with the aid of standby counsel, Fairley was convicted of both counts.

         ¶2. The trial court sentenced Fairley, a habitual offender, to twenty years for count one and five years for count two, with the sentences to be served day for day and concurrently. Fairley appeals both his convictions and sentences through appellate counsel[1] and pro se, claiming numerous assignments of error.[2] Finding no reversible error, we affirm Fairley's convictions and sentences.


         ¶3. On May 6, 2015, federal agents with Drug Enforcement Agency (DEA) were patrolling neighborhoods in Gulfport, Mississippi, during the agency's "Violent Tracker Initiative." Agents Brian Norton, Toby Schwartz, Raphael Bailey, and Justin McLauren were dressed in full uniform and were traveling in an unmarked vehicle.

         ¶4. The agents stopped Fairley after he failed to stop at a stop sign. Agent Norton approached Fairley, who was in the driver's seat of his minivan. A passenger, Jermaine Jackson, was riding in the vehicle with Fairley.

         ¶5. When Agent Norton approached, he told Fairley why they had stopped him and asked for Fairley's driver's license and proof of insurance. Agent Norton testified that Fairley appeared nervous but that he was compliant. He said that Fairley was sweating, that his fingers were trembling, and that he was stuttering.

         ¶6. Fairley first handed Agent Norton his TWIC[3] card rather than his driver's license. Fairley recognized his mistake and gave Agent Norton his driver's license. Fairley did not have proof of insurance. The vehicle was registered in Fairley's name.

         ¶7. Agent Norton asked Fairley to step to the back of his vehicle, and Fairley complied. When Fairley exited the vehicle, Agent Norton patted him down for weapons. Agent Norton asked Fairley if there were any illegal drugs or weapons on him or in his vehicle. Fairley replied, "No guns." Agent Norton again asked whether Fairley had any drugs, and Fairley said, "I have no guns in the vehicle."

         ¶8. According to Agent Norton, these responses from Fairley prompted Norton to ask for Fairley's consent to search the vehicle. Fairley consented and said, "No problem, I don't have any guns."

         ¶9. When Agent Norton searched Fairley's vehicle, he opened a sunglasses case and found a clear plastic bag with ten individual bags of a powder substance that Agent Norton believed was cocaine. Agent Norton next found a bag in the vehicle's back seat that contained a large amount of what he believed was "spice," or synthetic marijuana.

         ¶10. Marie Prince, a forensic chemist with the DEA, testified that she tested both substances and confirmed that they contained 2.3 grams of cocaine and 668.5 grams of synthetic cannabinoids, "AB-FUBINACA."

         ¶11. After discovering the drugs, Agent Norton placed Fairley and Jackson under arrest, and he advised them of their Miranda rights.[4] Fairley said, "Let the man go. They're mine. It's mine." Agent Norton said that Fairley clarified at the scene of the arrest that the cocaine was his, and he asked Agent Norton to let Jackson go because Jackson had nothing to do with the drugs. Agent Norton said he learned that Jackson was on probation, so he thought Fairley might be taking up for him. When Agent Norton asked Fairley more details about the cocaine, Fairley described the cocaine and its location.

         ¶12. The agents transported Fairley to the Gulfport Police Department, where Agent Norton and Agent Schwartz interviewed Fairley. During the interview, Fairley asked Agent Norton how he could go home that night. Agent Norton explained to Fairley that he and Agent Schwartz were with the DEA and that they were merely assisting the Gulfport Police Department. Agent Norton, however, told Fairley that if he provided some information, his cooperation might be taken into consideration.

         ¶13. According to trial testimony, Fairley maintained throughout the interview that the drugs were his. Fairley said that, because he had been laid off from his offshore job for nine months, he had been supplementing his income by selling cocaine. He said that, every week during those nine months, he would purchase half an ounce of cocaine, repackage it in units of either two-tenths or four-tenths of a gram, and sell the units for either twenty dollars or forty dollars.

         ¶14. As to the synthetic marijuana, Fairley purportedly told the agents that he had loaned a friend some money to pay his rent. When the friend could not repay the money, the friend gave Fairley some spice instead. Fairley said that he had been looking for someone who could sell the spice but that he was having trouble finding a seller.

         ¶15. According to the agents, Fairley refused to name his suppliers. Agent Norton said that Fairley wanted a guarantee that he would be released in exchange for his cooperation. When Agent Norton said he could not guarantee anything, Fairley ended the interview.

         ¶16. Agent Norton testified that he used his personal recorder to record the interview with Fairley. But because a number of people were arrested during the DEA's Violent Tracker Initiative, he inadvertently taped over Fairley's interview.

         ¶17. Agent Schwartz confirmed Agent Norton's account of what happened. Both agents testified that as a matter of DEA policy, all DEA interviews are conducted with two officers. This policy exists to protect the facts and to ensure that the interviewee's statements are not misinterpreted or misremembered. Agent Schwartz's account of Fairley's interview was the same as Agent Norton's; Agent Schwartz testified that taping over Fairley's interview had been accidental.

         ¶18. Fairley represented himself throughout trial. He called no witnesses and did not testify. Fairley cross-examined Agent Norton and Agent Schwartz about the evidence in the case. Specifically, Fairley questioned the agents about an individual named Willie Lee Keller.

         ¶19. The agents testified that "Willie Lee Keller" was the file name for all of the arrests during the Violent Tracker Initiative. Agent Adam Gibbons worked for the Gulfport Police Department but was assigned to the DEA task force. Agent Gibbons explained that Keller was a cocaine dealer who had been investigated by the task force since 2011. Agent Gibbons described the Keller file as a "filing cabinet" with many folders. "Andre Fairley [was] a folder in the Keller file." Agent Schwartz described the file name as a "book with many chapters."

         ¶20. All of the agents who testified said that Fairley was not being tried for any of Keller's actions. They said that the file name should have been redacted from the documents associated with Fairley's case but that it inadvertently appeared on a number of pages in Fairley's file.

         ¶21. Fairley also argued that none of the agents had seized the sunglasses case in which the cocaine was found. Fairley claimed that the photographs that showed the drugs in his vehicle had been taken at the police department and not at the scene of the traffic stop, implying that the drugs had been planted. Alternatively, Fairley implied that he was being prosecuted because he refused to work with the DEA agents.

         ¶22. Norton testified that he did not seize the sunglasses case, because it lacked evidentiary value. He said that the drugs were the only material evidence in the case.

         ¶23. Agent Gibbons testified that the photographs were taken at the scene of the traffic stop, and he told the jury that he recognized a house in one of the photographs. In response to a question asked by Fairley during cross-examination about a "parking line" depicted in one of the photographs, Agent Gibbons said that the white line is a fog line or road line, not a parking-space line. Agent Gibbons said the parking-space lines at the Gulfport Police Department are yellow, not white.

         ¶24. In response to Fairley's suggestion that he was being set up or prosecuted because he refused to cooperate, Agent Schwartz said that Fairley was arrested because drugs were found in his vehicle after a routine traffic stop. The arrest was not personal, and Agent Schwartz did not know who Fairley was before that day.

         ¶25. When questioned about why Fairley was not issued a ticket for running a stop sign, Agent Norton testified that he did not issue a traffic citation because Fairley was compliant, and he did not want to "kick a horse while it's down." Agent Norton said that he had to have Fairley's vehicle moved to get it out of the roadway. He had two options: have the vehicle towed or have an agent drive it. Agent Norton said that Fairley consented to one of the agents driving the vehicle. Both Agent Schwartz and Agent Gibbons agreed that the decision not to issue a traffic citation was not unusual. Agent Gibbons also said that a suspect is less likely to cooperate later if they have to pay to get their car out of the impound lot.

         ¶26. The jury found Fairley guilty of possessing cocaine and synthetic marijuana with intent to distribute. This appeal followed.


         I. Whether the trial court erred by admitting Rule 404(b) evidence without conducting an on-the-record Rule 403 analysis or providing a limiting jury instruction.

         ¶27. At trial, the State sought to introduce evidence that Fairley had been convicted in 1994 of possession of marijuana with intent to distribute. Fairley objected, stating, "I object, Rule 403." The trial court responded, "Okay. I believe it's Rule 404." The State said, "Your Honor, do we need to have a hearing outside the presence of the jury?" The trial court replied, "No. Rule 404 allows the introduction of evidence of this type to prove intent or motive. So the objection is overruled."

         ¶28. Rule 404(b) of the Mississippi Rules of Evidence then provided, [5]

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         ¶29. In Swington v. State, this Court reiterated that, "[e]vidence of prior involvement in the drug trade is admissible to prove intent to distribute." Swington v. State, 742 So.2d 1106, 1111 (Miss. 1999) (citing Holland v. State, 656 So.2d 1192, 1196 (Miss. 1995)). This includes evidence of a prior conviction similar to the crime charged. Id.

         ¶30. Swington explained,

Prior convictions or wrongful acts may not imply that the defendant is the type of person likely to commit the crime charged. Jenkins v. State, 507 So.2d 89, 92 (Miss. 1987). However, such evidence may be admitted for other evidentiary purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident pursuant to M.R.E. 404(b). See Robinson v. State, 497 So.2d 440, 442 (Miss. 1986). In Smith, 656 So.2d at 99, this Court held that "evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404 and is properly admissible if it passes muster under M.R.E. 403 and is accompanied by a proper limiting instruction."

Swington, 742 So.2d at 1112.

         ¶31. "To be sure, [however, ] evidence admissible under Rule 404(b) is also subject to the prejudice test of Rule 403," and the trial court is required "to consider whether its probative value on the issues of motive, opportunity and intent [are] substantially outweighed by the danger of unfair prejudice." Hoops v. State, 681 So.2d 521, 530-31 (Miss. 1996) (quoting Watts v. State, 635 So.2d 1364, 1368 (Miss. 1994)). And, "while a judge's on-the-record analysis is recommended . . ., the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial." Jones v. State, 920 So.2d 465, 476 (Miss. 2006).

         ¶32. According to the record, Fairley told the jury during opening statements that he had been framed because he "wouldn't be a snitch for the DEA." Fairley said the State's case against him was based upon "perjured, falsified, and redacted documents that they indicted [him] with." And the "charging document" in the case was actually for "a guy name Willie Lee Keller." Fairley also indicated that any assertion by the DEA that he (Fairley) had purportedly told them that the spice belonged to Jackson and that the cocaine belonged to him (Fairley), was false. Fairley said that he instead told the officers that, "Whatever you find, guns, drugs, whatever, give it all to me, let my friend go. He [has] four years over top of his head. I can stand the charge because I ha[ven't] been in trouble in 17 years."

         ¶33. During cross-examination, Fairley asked Agent Norton why they did not impound his vehicle, given the amount of drugs allegedly found inside it and given his (Fairley's) background. And Fairley questioned Agent Norton's testimony that Fairley admitted to them that he had purchased the cocaine to sell it and that he had been looking to deliver the spice to someone else. Fairley also attempted to advance the theory that the drugs may have been planted by the agents by suggesting that the photographs purportedly taken of the drugs at the scene of the traffic stop actually had been taken later at the police station. Fairley further attempted to create the impression that the real culprit in the matter was Willie Lee Keller.

         ¶34. Based upon the foregoing, the State's prior-conviction evidence was relevant to Fairley's knowledge of the drugs' presence, his intent to distribute the drugs, and the absence of mistake or accident. And by overruling Fairley's Rule 403 objection to the prior-conviction evidence, the trial court perhaps had determined that its probative value exceeded any unfair prejudice to Fairley, given the inferences and claims raised by Fairley during opening statements and cross-examination. In any event, however, we agree with Presiding Justice Kitchens that Fairley properly made (or attempted to make) a Rule 403 objection with regard to the prior-conviction evidence, and the trial court should have ruled or responded to it accordingly. See Jones, 920 So.2d at 476. But any error on the part of the trial court in not doing so was harmless. Id.

         ¶35. Again, Fairley told the jury that the evidence would show he was framed because he would not be a "snitch" for the DEA. He insinuated that the drugs were planted in his vehicle by the agents after they drove his vehicle to the police station from the scene of the stop. And he disputed having told the agents that he had purchased the cocaine to sell it and that he had sought a seller for the spice.

         ¶36. Further, this Court has held that evidence of other crimes may be admissible to tell the complete story. Palmer v. State, 939 So.2d 792, 795 (Miss. 2005). Fairley mentioned the fact of his past "trouble" and his having a "background." And he used that to try to sow doubt in the jury's mind. In attempting to imply that the agents had planted the drugs, Fairley questioned why his vehicle was not impounded, given the fact of his background and the amount of drugs allegedly found in it. Fairley also tried to suggest his innocence by submitting that, if indeed he was guilty of the crimes for which he had been accused, then why would he not cooperate with the authorities, particularly given his past trouble? Accordingly, evidence of Fairley's prior conviction provided the jury a more complete picture of factual circumstances introduced by Fairley.

         ¶37. Lastly, contrary to Fairley's claim on appeal, the trial court submitted a limiting instruction to the jury. Jury instruction S-6 stated,

The Court instructs the Jury that any evidence of prior bad acts or crimes of the defendant may be considered solely for the purpose of determining the defendant's intent or knowledge in this case. If the defendant has committed bad acts or crimes, they are not evidence corroborating or suggesting the defendant is guilty of the crime charged in this case.

         ¶38. For these reasons, we find no merit to this issue.

         II. Whether the trial court erred by not granting a mistrial on its own motion after Agent Schwartz testified about Fairley's habitual-offender status.

         ¶39. Before trial, the State filed a motion in limine to prohibit Fairley from mentioning his potential sentence. Fairley objected and argued that it was not fair that while he faced enhanced sentencing and was subject to being sentenced as a habitual offender, he could not mention facts relating to sentencing at trial. The trial court ruled that Fairley would not be allowed to mention any potential sentence during the guilt phase at trial. Fairley argued that this was an attempt ...

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