Nitin Malik v. State of Mississippi
249 So. 3d 416
| Miss. Ct. App. | 2017Background
- On May 3 and June 3, 2013, a confidential informant (CI) working with Mississippi Bureau of Narcotics (MBN) purchased hydrocodone/acetaminophen (Lorcet 10) from Nitin Malik at a Richland convenience store; lab testing confirmed the pills.
- Audio/video equipment was used for the first buy (audio captured); the second device battery died but an agent monitored audio through linked equipment; MBN did not record a prior unsuccessful attempt because Malik allegedly had no pills then and the recording was taped over.
- Malik was indicted on four counts (two sales, two conspiracies). At trial the State proceeded on two sale counts; conspiracy counts were nolle prosequi.
- A jury convicted Malik on both sale counts; he received two consecutive eight-year sentences. Posttrial motions (Brady violation, improper closing, prior-bad-acts evidence, ineffective assistance) were denied.
- On appeal, Malik challenged (1) nondisclosure of an alleged prior failed buy (Brady), (2) prosecutorial remarks in closing implying prior sales, (3) introduction/implication of prior bad acts under Rule 404(b), and (4) trial counsel’s alleged failure to investigate/call an eyewitness.
Issues
| Issue | Malik's Argument | State's Argument | Held |
|---|---|---|---|
| Brady violation for nondisclosure of a prior failed buy | The undisclosed recording/incident was exculpatory and would have impeached the CI; its suppression prejudiced the defense | No recording or report existed; agents would testify the CI failed because Malik had no pills, so it was not favorable or suppressed evidence | No Brady violation: evidence not shown to be favorable, suppressed, or material; Malik could have obtained info with diligence |
| Improper closing argument (bolstering CI / asserting prior buys) | Prosecutor misstated facts not in evidence by saying CI bought from Malik on prior occasions, creating unfair prejudice | Argument was a permissible inference from testimony that CI and agents knew Malik through the investigation; closing argument not evidence | No error: statements were reasonable inferences from testimony and jury instructions limited argument’s evidentiary weight |
| Rule 404(b) / prior-bad-acts evidence | References to CI knowing she could buy from Malik equated to proof of prior bad acts used to show propensity | Statements did not assert prior crimes; they claimed only that CI knew Malik as someone who would sell — an inference, not extrinsic-act proof | No 404(b) violation: prosecutor did not introduce prior-bad-acts evidence or rely on it to prove propensity |
| Ineffective assistance for not calling/interviewing cashier eyewitness | Counsel failed to investigate/call an eyewitness who would have impeached CI and altered the verdict | Counsel interviewed the witness shortly before trial and tactical choices about calling witnesses are trial strategy; record does not affirmatively show constitutional ineffectiveness | No relief on direct appeal; record does not show deficient performance or prejudice; claim preserved for post-conviction review |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose materially exculpatory evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance test: deficiency and prejudice)
- Fortenberry v. State, 191 So. 3d 1245 (Miss. Ct. App. 2015) (Brady elements articulated)
- King v. State, 656 So. 2d 1168 (Miss. 1995) (Brady standard and materiality inquiry)
- Wilson v. State, 194 So. 3d 855 (Miss. 2016) (standard for prosecutorial misconduct in closing argument)
- Curry v. State, 939 So. 2d 785 (Miss. 2006) (abuse-of-discretion review for discovery violations)