188 So. 3d 593
Miss. Ct. App.2015Background
- On Sept. 16, 2012, Officer Romeisha Moore stopped a Saturn driven by Fredrico Stone for speeding and discovered the tag belonged to a different vehicle and was expired; Stone admitted driving without a license.
- Stone had difficulty speaking and had a plastic item in his mouth; he resisted removal, turned toward the front passenger, and was tasered and handcuffed.
- Officer Moore observed approximately 20–29 small plastic bags containing a white substance on the ground near the passenger side; a larger clear bag was also present.
- The small bags were wet, resembled the item Moore tried to remove from Stone’s mouth, and the substance tested positive for cocaine.
- Stone was convicted of possession of cocaine, sentenced as a habitual offender to 16 years’ incarceration without parole or probation and fined $250,000; he appealed raising four issues.
Issues
| Issue | Stone’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether selection of two alternate jurors by drawing names from a cup violated rules/statute and Stone’s rights | The trial court failed to follow URCCP 4.05 and Miss. Code § 13-5-67 in empaneling alternates | Court procedures for empaneling enjoy deference; alternates were drawn, qualified, examined, sworn and had same functions | Waived for lack of contemporaneous objection; meritless and affirmed |
| Whether refusal to give a circumstantial-evidence instruction was error | Requested circumstantial-evidence instruction because alleged evidence was circumstantial | Officer Moore’s eyewitness testimony about the item in Stone’s mouth and seeing bags on ground constituted direct evidence | Instruction properly refused; affirmed |
| Whether verdict was against overwhelming weight of the evidence | Contended evidence did not strongly support guilt | Testimony linked item in Stone’s mouth to bags found on ground; bags tested positive for cocaine | No unconscionable injustice; verdict upheld |
| Whether denial of directed verdict (sufficiency) was error | Argued insufficiency of evidence to convict | Viewing evidence in State’s favor, any rational trier of fact could find elements proven beyond a reasonable doubt | Denial proper; evidence sufficient; affirmed |
Key Cases Cited
- Bunch v. State, 123 So. 3d 484 (Miss. Ct. App. 2013) (contemporaneous objection requirement for jury-selection challenges)
- Moore v. State, 816 So. 2d 1022 (Miss. Ct. App. 2002) (deference to judicial procedures for empaneling juries)
- Arguelles v. State, 867 So. 2d 1036 (Miss. Ct. App. 2003) (circumstantial-evidence instruction required only when case is wholly circumstantial)
- Sullivan v. State, 749 So. 2d 983 (Miss. 1999) (any direct evidence removes need for circumstantial-instruction)
- McInnis v. State, 61 So. 3d 872 (Miss. 2011) (eyewitness testimony to gravamen as example of direct evidence)
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (standard for overturning verdict as against the overwhelming weight of the evidence)
- Woodard v. State, 765 So. 2d 573 (Miss. Ct. App. 2000) (appellate review of denial of motion for new trial/wt. of evidence)
- Jordan v. State, 936 So. 2d 368 (Miss. Ct. App. 2005) (directed verdicts challenge sufficiency of the evidence)
- Davis v. State, 866 So. 2d 1107 (Miss. Ct. App. 2003) (jury determines witness credibility and resolves conflicts in evidence)