OF JUDGMENT: 07/14/2017
HARRISON COUNTY CIRCUIT COURT TRIAL JUDGE: HON. ROGER T.
COURT ATTORNEYS: JIM L. DAVIS, III WILLIAM CROSBY PARKER
CHRISTOPHER DEON CARTER
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY ANDRE A. FAIRLEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOEL SMITH
RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
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.
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 and pro se, claiming numerous assignments
of error. Finding no reversible error, we affirm
Fairley's convictions and sentences.
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.
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.
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.
Fairley first handed Agent Norton his TWIC 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
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
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."
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.
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
After discovering the drugs, Agent Norton placed Fairley and
Jackson under arrest, and he advised them of their
Miranda rights. 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.
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
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.
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.
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.
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
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
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.
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
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.
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
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.
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.
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.
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.
The jury found Fairley guilty of possessing cocaine and
synthetic marijuana with intent to distribute. This appeal
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
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
Rule 404(b) of the Mississippi Rules of Evidence then
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.
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.
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.
"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).
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
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.
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
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.
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
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
For these reasons, we find no merit to this issue.
Whether the trial court erred by not granting a
mistrial on its own motion after Agent
Schwartz testified about Fairley's habitual-offender
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