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Harvell v. State

Court of Appeals of Mississippi

May 7, 2019


          DATE OF JUDGMENT: 06/01/2017





         EN BANC.

          J. WILSON, P.J.

         ¶1. Roman Harvell had two different drug charges pending against him. Both were on the circuit court's docket for trial on May 30, 2017. At some point during jury selection on May 30, Harvell's lawyer realized that he had misunderstood which case was about to go to trial. Counsel moved for a continuance, but the judge denied the last-minute request. The jury found Harvell guilty of drug trafficking, and the court sentenced him to serve forty years in the custody of the Department of Corrections with ten years suspended.

         ¶2. On appeal, Harvell argues that the trial judge abused his discretion by denying a continuance. He also argues that he is entitled to a new trial because one of the two assistant district attorneys who tried the case previously represented a defense witness. Finally, Harvell argues that there is insufficient evidence to support the jury's verdict and his conviction. We find no error and affirm.


         ¶3. On September 28, 2016, a confidential informant (CI) went to Roman Harvell's apartment[1] to buy drugs. Investigator Jason Chism of the Baldwyn Police Department (BPD) testified that he knew that the apartment was Harvell's because he had been there on prior search warrants and because the utilities had been in Harvell's name since 2011. The CI had offered to make a drug buy in order to avoid being charged with child endangerment.

         ¶4. Before the CI went to the apartment, Chism made certain that she did not have any drugs on her person. Chism, Officer Adam Cook, and Officer Chris Gilland monitored the CI's interactions in the apartment via a three-way phone call. Chism testified that the BPD did not have equipment for audio or video recording, so they hid a cell phone on the CI and kept an open phone line during her time in the apartment. Chism stated that he was familiar with Harvell's voice because he had spoken to Harvell numerous times in the past. Chism testified that he recognized Harvell's voice during the interaction with the CI. When the CI left Harvell's apartment and returned to meet Chism, she had a substance that appeared to be meth. According to Chism, the CI "didn't buy [the meth], but was given some." A field test confirmed that it was, in fact, meth.

         ¶5. Chism then obtained a search warrant for Harvell's apartment. The underlying facts and circumstances that Chism submitted in support of his application for a warrant included evidence against Harvell that went back several years. However, the primary basis for the warrant was that the CI had obtained meth from Harvell at his apartment that day.

         ¶6. By the time Chism obtained a search warrant, Harvell had left his apartment. Officer Anthony Buse was on the lookout for Harvell. Buse knew that Harvell had a suspended driver's license, and when he saw Harvell driving, he pulled Harvell over. Buse detained Harvell and took him back to his apartment. Chism and Cook were already in the process of searching the apartment.

         ¶7. After sweeping the apartment for weapons and other occupants, Chism and Cook began to search the apartment's "master bedroom." Chism testified, without objection, that he had been to the apartment twice before on prior search warrants. Chism testified that the master bedroom was Harvell's bedroom and that Harvell had various "belongings" in it, including "power tools" and clothes. Officers also recovered bank cards and "identification" that belonged to Harvell from the bedroom and the kitchen.

         ¶8. When officers brought a drug-detection dog into the master bedroom, the dog "hit" on the closet door. The door's handle had been removed and replaced with a deadbolt. Chism asked Harvell if he had the key, but Harvell did not answer, so the police pried the door open with a tire iron. Inside the closet, they found a small safe that was bolted to the concrete slab of the house. The safe was equipped with a fingerprint lock, so the police used the tire iron to pry it open too. The safe contained a clear plastic bag containing what appeared to be meth. An analyst from the Tupelo Police Crime Lab testified and confirmed that the substance was 91.57 grams of meth. Gilland testified that this was an uncommonly large quantity of meth-more than they usually saw.

         ¶9. Chism testified that a man named Tony Agnew sometimes stayed at Harvell's apartment and that "different people would always be in and out over there." Chism did not know whether anyone else was staying there at the time of Harvell's arrest, but he conceded that there "was a very good possibility" of it. When officers initially entered the apartment, they found a woman they believed to be Harvell's aunt. Chism also acknowledged that another CI had been to the apartment on a different occasion and had bought drugs from someone other than Harvell.

         ¶10. Chism testified that Harvell's apartment was "constantly" under surveillance. As noted above, he testified, without objection, that he had been there on prior search warrants. During one search, the police found meth, which resulted in a separate indictment against Harvell. During another search, they found drug paraphernalia.

         ¶11. After the State rested, Harvell called one witness, Daniel Duvall. Duvall testified that he had known Harvell since high school. Duvall also testified that he and Chism "had run-ins on the road before." Specifically, Duvall testified that Chism arrested him in March 2014 for driving under the influence. A few days after his arrest, Duvall met with Chism and signed a written statement, prepared by Chism, in which he stated that he had bought meth from Harvell. Duvall acknowledged signing the statement, but he claimed that he "didn't read over it" and "was under pressure not to" read over it. Duvall denied telling Chism that he bought meth from Harvell. Duvall's testimony did not have anything to do with Harvell's 2016 arrest or indictment. It appears that Duvall's testimony was intended to suggest to the jury that Chism was out to get Harvell.

         ¶12. The jury found Harvell guilty of trafficking in a controlled substance. The court sentenced Harvell to serve forty years in the custody of the Department of Corrections, with ten years suspended and five years of post-release supervision. The court also imposed a fine of ...

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