Terry Lynn Barber v. State of Mississippi
232 So.3d 799
Miss. Ct. App.2017Background
- On June 28, 2015, Deputy Roberson stopped Terry Lynn Barber for crossing the fog line; Barber’s son Cody was a passenger.
- A vehicle search revealed small baggies and a crystalline white powder (methamphetamine) under the passenger seat; both men were arrested.
- At booking, Officer Moore inventoried Barber’s personal effects (including his wallet) and secured them in jail property storage.
- Two days later, Deputy Brownlee retrieved Barber’s wallet from a secured property bag to get a debit card; a bag of methamphetamine fell out of the wallet and was submitted to the crime lab.
- Barber was indicted, later convicted by a jury of possessing at least 0.1 g but less than 2 g of methamphetamine, sentenced as a habitual offender to three years without parole, fined, and denied a new trial.
Issues
| Issue | Plaintiff's Argument (Barber) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether counsel was ineffective for not requesting a circumstantial-evidence instruction | Counsel was ineffective because there was no direct evidence that Barber possessed the drugs in the wallet; the jury had to infer presence at the time Barber possessed the wallet | The record contains direct eyewitness testimony that the wallet was Barber’s and that the drugs were found in his wallet while in the jail’s secured property, so circumstantial-instruction was unnecessary | Court held counsel was not ineffective; evidence was not purely circumstantial and the omission did not constitute reversible error |
Key Cases Cited
- Bell v. State, 202 So. 3d 1239 (Miss. 2016) (ineffective-assistance claims generally better raised in post-conviction proceedings)
- Dartez v. State, 177 So. 3d 420 (Miss. 2015) (same; appellate review limited to trial record)
- Colenburg v. State, 735 So. 2d 1099 (Miss. Ct. App. 1999) (appellate review of ineffectiveness permitted when record shows constitutional deficiency)
- Carson v. State, 125 So. 3d 104 (Miss. Ct. App. 2013) (definition of circumstantial-evidence case)
- Garrett v. State, 921 So. 2d 288 (Miss. 2006) (circumstantial-evidence framework)
- Price v. State, 749 So. 2d 1188 (Miss. Ct. App. 1999) (direct evidence defined as eyewitness accounts)
- Jenkins v. State, 757 So. 2d 1005 (Miss. Ct. App. 1999) (denial of circumstantial instruction proper where drugs were directly discovered in defendant’s premises)
- Givens v. State, 618 So. 2d 1313 (Miss. 1993) (eyewitness discovery of contraband can preclude circumstantial-instruction)
- Boches v. State, 506 So. 2d 254 (Miss. 1987) (comparison of discovery-in-vehicle precedents)