281 So.3d 1024
Miss. Ct. App.2019Background
- Police used a confidential informant to obtain meth from Harvell at his apartment on Sept. 28, 2016; the informant returned with suspected meth and a field test was positive.
- Officers obtained a search warrant, found Harvell nearby, and executed the warrant at his two-bedroom apartment (part of a triplex).
- In the master bedroom closet (deadbolted, with a safe bolted to the slab and a fingerprint lock), officers found 91.57 grams of methamphetamine.
- Harvell had other pending drug charges from 2014; both the 2014 and 2016 indictments were on the court’s docket for May 30, 2017. Defense counsel claimed he misunderstood which case would be tried and moved for a continuance during jury selection; the judge denied the motion.
- At trial Harvell called Daniel Duvall, who testified about a prior unrelated statement; one ADA (Daniels) had formerly represented Duvall and recused from cross-examining him. Harvell did not make a contemporaneous motion to disqualify Daniels.
- The jury convicted Harvell of trafficking (possession with intent to sell >30 grams). Harvell appealed, arguing denial of continuance, prosecutorial conflict based on Daniels’s prior representation of Duvall, and insufficiency of the evidence for constructive possession.
Issues
| Issue | Plaintiff's Argument (Harvell) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether denial of continuance was erroneous | Counsel misidentified which case would be tried and needed time; denial prejudiced defense | Case was on docket for trial; State subpoenaed witnesses; last-minute request not shown to cause prejudice | Denial not reversible; issue procedurally barred for not being in new-trial motion and, on merits, no abuse of discretion or manifest injustice |
| Whether ADA Daniels’s prior representation of Duvall required new trial | Daniels formerly represented Duvall and should have been disclosed; potential conflict and improper closing remarks prejudiced Harvell | Daniels disclosed and recused from cross-examination; Duvall was not listed or subpoenaed until trial day; no contemporaneous motion to disqualify | No reversible error: issue waived for lack of contemporaneous objection; Daniels properly abstained and remarks were not extreme misconduct |
| Whether closing argument remarks required reversal | Remarks implied prosecutor’s personal knowledge about Duvall aging from meth and familiarity | Remarks largely comment on evidence; defendant did not object at trial | Waived for lack of objection; comments not extreme enough to warrant reversal absent objection |
| Whether evidence was sufficient to prove constructive possession and intent to sell | Meth was not in Harvell’s actual possession and other occupants frequented apartment; no exclusive control shown | Safe was in Harvell’s locked bedroom closet, bolted safe with fingerprint lock, utilities in his name, personal items and ID found in bedroom, CI bought/got meth from Harvell same day | Sufficient evidence for constructive possession and intent to sell; conviction affirmed |
Key Cases Cited
- Shelton v. State, 853 So. 2d 1171 (Miss. 2003) (continuance-denial issue must be raised in motion for new trial to be preserved)
- Miles v. State, 249 So. 3d 362 (Miss. 2018) (reaffirming preservation rule for continuances)
- Densmore v. State, 27 So. 3d 379 (Miss. 2009) (exception for last-minute disclosure of star witness when facts are clear on record)
- Harden v. State, 59 So. 3d 594 (Miss. 2011) (record may show facts fully apparent such that post-trial motion is unnecessary)
- Poole v. State, 46 So. 3d 290 (Miss. 2010) (standard for reviewing sufficiency of the evidence)
- Carver v. State, 227 So. 3d 1090 (Miss. 2017) (constructive possession requires awareness and dominion or control)
- Powell v. State, 355 So. 2d 1378 (Miss. 1978) (contraband found on nonexclusive premises requires additional incriminating facts)
- Young v. State, 420 So. 2d 1055 (Miss. 1982) (prosecutor should not intimate personal knowledge of facts)
- Hughes v. State, 90 So. 3d 613 (Miss. 2012) (issues not raised contemporaneously are waived)
- Mickens v. Taylor, 535 U.S. 162 (U.S. 2002) (conflict-of-interest jurisprudence referenced for contrast)