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Payne v. State

Court of Appeals of Mississippi

June 18, 2019

IRVIN A. PAYNE A/K/A IRVIN ANDREW PAYNE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/23/2017

          HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T. CLARK TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS GEORGE T. HOLMES

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER JOSEPH SCOTT HEMLEBEN JASON L. DAVIS BARBARA BYRD

          DISTRICT ATTORNEY: JOEL SMITH

          BEFORE J. WILSON, P.J., McCARTY AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. A grand jury for the First Judicial District of Harrison County indicted Irvin Andrew Payne ("Payne") for unlawful possession of a firearm by a convicted felon (Count I) and possession of a controlled substance (Count III). After a jury trial, the jury found Payne guilty on both counts. The trial court sentenced Payne to serve ten years on Count I and three years on Count III, to run consecutively for a total of thirteen years in the custody of the Mississippi Department of Corrections ("MDOC"). Following the denial of Payne's motion for a judgment notwithstanding the verdict ("J.N.O.V.") or alternatively a new trial, Payne appealed, raising two issues: (1) whether Count III of the indictment was defective; and (2) whether Payne received ineffective assistance of counsel.[1] After a thorough review of the record, we reverse Payne's conviction and sentence on Count III of the indictment, render a judgment dismissing that count, and deny Payne's ineffective-assistance-of-counsel claim without prejudice to his right to file a separate motion for post-conviction relief.

         FACTS

         ¶2. On February 9, 2015, narcotics officers Sergeant Aaron Fore ("Fore") and Detective Thomas King ("King") of the Gulfport Police Department were patrolling the 20th Street and 31st Avenue area in Gulfport, Mississippi, in response to citizen complaints about drug activity.

         ¶3. Around 7:25 p.m., Fore and King were traveling northbound on 31st Avenue, a two- lane residential street, when they noticed a purple 1995 Chevrolet Lumina ("Lumina") parked facing northbound in the southbound lane. A man was standing near the Lumina talking to the occupants, but he quickly turned and walked away upon seeing the officers' patrol vehicle. The Lumina's driver then merged into the correct lane (the northbound lane) in front of the officers and immediately turned right onto 21st Street without using a turn signal.

         ¶4. Fore and King proceeded to follow the Lumina onto 21st Street, and King activated the patrol vehicle's blue lights to conduct a traffic stop for failure to give a turn signal. The driver did not stop the Lumina, but instead made a right turn onto 30th Avenue at the next intersection. At that point, King activated the sirens and continued to follow the Lumina onto 30th Avenue. While traveling down this well-lit street, Fore saw one of the Lumina's occupants throw an unknown object out of the front-passenger window. After a short distance, the Lumina's driver made another right turn onto 20th Street and finally came to a stop.

         ¶5. King exited the patrol vehicle-with Fore a few steps behind-and approached the Lumina's passenger side. King testified that he smelled the odor of marijuana coming from the Lumina. When King looked through the rear passenger window, he saw "a large rifle laying on the center console, muzzle facing forward, stock to the rear." The driver of the Lumina, later identified as Payne, had his arm on top of the rifle as though he was trying to hide the rifle or push it away. King shouted, "Gun!" to Fore, who was approaching the Lumina from the driver's side, and he instructed the Lumina's occupants to put their hands where he could see them. King then opened the rear passenger door, retrieved the rifle, and put it on top of the Lumina's trunk. Fore took the gun and secured it in the patrol vehicle. By that time, Detectives Larry McCook, Jr. ("McCook") and Joey Weust ("Weust") had arrived at the scene.

         ¶6. After securing the rifle, King "pulled both of the occupants out of the vehicle [] [and] detained them in order to do a probable cause search" on the basis of the odor of marijuana emanating from the Lumina. King then left the scene to look for the item that was thrown from the passenger window; he found nothing and returned to the scene of the traffic stop. Meanwhile, McCook searched Payne and found a small plastic bag containing a "milky, rock-like substance" in Payne's pocket. McCook turned the bag over to King, who logged the substance into evidence and sent it to the crime lab for testing.

         ¶7. The officers arrested both Payne and Latrevia Donwell ("Donwell"), Payne's passenger in the Lumina. A grand jury for the First Judicial District of Harrison County indicted Payne for unlawful possession of a firearm by a convicted felon (Count I) and possession of a controlled substance (Count III).[2] The indictment alleged "ETHYLONE" as the Schedule I controlled substance that Payne illegally possessed.

         ¶8. At trial, Payne testified in his own defense. Regarding Count I, Payne repeatedly denied knowing about or seeing a rifle in the car or that a rifle was next to him or on the center console at any point in time. But Fore testified that he looked into the back seat and saw "the butt stock of a rifle on top of the center console sticking behind the driver into the backseat compartment." King also testified that the rifle was "laying directly on top of the center console between the driver and passenger" and added that "none of it [i.e., the rifle] was in the back seat. It was all on top of the center console." Both Fore and King testified that Payne's arm was on top of the rifle when King secured it.[3]

         ¶9. As for Count III, Payne admitted the drugs found in his pocket at the traffic stop were his. He testified that he obtained the drugs at a motel in Gulfport before Fore and King pulled him over, and that he believed the drugs to be "MDMA," which is more commonly known as ecstasy-a Schedule I controlled substance. Payne also testified he knew the drugs were illegal.

         ¶10. Laura Faulks ("Faulks"), a drug analyst with the Mississippi Forensics Laboratory, testified as an expert in the field of drug analysis. Faulks performed a chemical analysis on the substance the police recovered from Payne's pocket. At trial, she testified that (1) her analysis "detected the compound ethylone in the sample"; (2) the sample weighed 0.16 grams; and (3) ethylone is a Schedule I controlled substance that has "many names," including "methylenedioxymethcathinone" or "beta keto MDEA." Faulks did not provide any other names for the substance or establish ethylone as MDMA or any other enumerated Schedule I controlled substance.

         ¶11. After trial, the jury found Payne guilty of both counts. The trial court sentenced Payne to serve ten years on Count I and three years on Count III, to run consecutively for a total of thirteen years in the custody of the MDOC. Payne subsequently filed a motion for a J.N.O.V. or alternatively a new trial. In his post-trial motion, Payne contended that the trial court erred when it denied Payne's motion to suppress evidence procured from the warrantless stop and search of the Lumina on February 9, 2015, and when it denied Payne's motion for a directed verdict on the basis that Payne had knowledge of the rifle found in the Lumina.

         ¶12. Payne timely filed his notice of appeal on February 26, 2018. He raises two issues on appeal: (1) whether Count III of the indictment was defective; and (2) whether Payne received ...


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