LAVAR WILLIAMS a/k/a LAVAR D. WILLIAMS a/k/a LAVAR DAUNTE WILLIAMS a/k/a BOO LOVE v. STATE OF MISSISSIPPI
NO. 2019-CT-01007-SCT
IN THE SUPREME COURT OF MISSISSIPPI
02/24/2022
ISHEE, JUSTICE, FOR THE COURT
ON WRIT OF CERTIORARI; DATE OF JUDGMENT: 06/18/2019; TRIAL JUDGE: HON. DEWEY KEY ARTHUR; TRIAL COURT ATTORNEYS: KATIE NICOLE MOULDS, CHRISTOPHER TODD McALPIN, BRAD MARSHALL HUTTO, KEVIN DALE CAMP; COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT; ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, JUSTIN TAYLOR COOK, GEORGE T. HOLMES; ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, ALLISON ELIZABETH HORNE; DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR.; NATURE OF THE CASE: CRIMINAL - FELONY; DISPOSITION: AFFIRMED - 02/24/2022
ISHEE, JUSTICE, FOR THE COURT:
¶1. While he was incarcerated in the Madison County Jail, Lavar Williams‘s jailers recorded numerous telephone conversations in which Williams appeared to be directing a
FACTS
¶2. The Court of Appeals ably recited the relevant facts:
At trial, Lieutenant Trey Curtis with the Narcotics Division of the Madison County Sheriff‘s Department testified that in December 2017 he began monitoring Williams‘s phone calls while Williams was in the Madison County Detention Center. Lieutenant Curtis testified that Williams made several calls to Jeremiah Kelly and used code words to discuss narcotics. As a result, Lieutenant Curtis obtained search warrants for Williams‘s residence on Kings Crossing in Madison County and Kelly‘s mother‘s residence on North Jackson Street in Madison County.
On January 27, 2018, law enforcement executed the warrants. Lieutenant Curtis testified that law enforcement found marijuana and cocaine at Williams‘s residence. They also found currency, scales, sandwich bags, priority-mail postal stickers, and drug ledgers. According to Lieutenant Curtis, the currency was divided into stacks, and on top of each stack were ledgers with names and amounts. Lieutenant Curtis testified that the ledgers corroborated information that he had overheard on Williams‘s phone calls with Kelly. On cross-examination, Lieutenant Curtis admitted that Williams had been in jail for approximately two months and therefore had not had access to his residence.
The State played portions of several of Williams‘s phone calls to Kelly for the jury. During the calls, Williams and Kelly discussed “T-shirts,” “presents,” and “shoes.” Lieutenant Curtis explained that “T-shirts” was code for crack cocaine, and “presents” and “shoes” were codes for marijuana. Kelly assured Williams that he had written everything down and that everything was “copesetic.”
During the calls, Williams and Kelly discussed someone named “Young.” Lieutenant Curtis testified that a box found in the trash can suggested that Young lived in California. Then Williams referenced “Mark in the truck.” Kelly asked, “Mark in the truck?” Williams clarified, “In the brown truck.” Lieutenant Curtis testified he determined that Mark was a UPS driver. Later, Kelly told Williams that everything was “straight” with certain mail. According to Lieutenant Curtis, Williams told Kelly to send Young “750 times ten,” which meant $750 per pound for marijuana. Lieutenant Curtis testified that “7,500 Young” was written on one of the ledgers.
Tommy Jones, Captain of the Narcotics Division of the Madison County Sheriff‘s Department, testified that he participated in the execution of the search warrant at Williams‘s house. Captain Jones testified that law enforcement found a safe inside a bedroom closet, containing what they suspected was marijuana and cocaine, $93,259, and a stolen fully automatic MP5[-model submachine gun that had been stolen from the Jackson Police Department]. Additionally, Captain Jones testified that the ledgers mostly corroborated the phone calls between Williams and Kelly. On cross-examination, Captain Jones admitted that Williams had not had access to his house for approximately two months and that other people had access to the house.
Archie Nichols, with the Mississippi Forensics Laboratory, testified that the safe at Williams‘s residence contained 167.66 grams of cocaine, a Schedule II controlled substance, and 5,556.71 grams of marijuana, a Schedule I controlled substance. Additionally, 10.58 grams of cocaine and another .48 gram[s] of cocaine were found in Williams‘s kitchen
Finally, the State called Lenaris Milton to testify at trial. Milton had pleaded guilty to conspiracy to deliver marijuana in this case and was sentenced to serve five years. As part of his plea, he agreed to testify at Williams‘s trial. According to Milton, he grew up with Williams, and he, Williams, and Kelly were involved in the same drug business. According to Milton, he sold drugs for Williams even while Williams was in jail in January 2018. Milton specifically testified that Williams had called him from jail and
directed him to distribute drugs. Milton also testified that they used code words for drugs such as “presents” and “T-shirts.” According to Milton, he helped his wife run a clothing store in 2018, but Williams did not have anything to do with it. After the State rested its case, the defense moved for a directed verdict, which was denied. Then Williams testified. Williams‘s defense was that he had been incarcerated since December 4, 2017, and that other people had access to his residence while he was incarcerated. He admitted to calling Kelly from jail; however, he testified that they only discussed Christmas presents for his kids, not drugs. He also testified that when they discussed T-shirts, they were referring to T-shirts at Milton‘s clothing store that he helped run. Later, Williams testified that he never mentioned presents or T-shirts. According to Williams, he instructed Kelly to manage his appliance business. Williams testified that he received scratch-and-dent appliances from a man named Derek Young at Lowe‘s in Madison. Then he sold the appliances to individual buyers. Williams testified that when he said “$750,” he was referring to refrigerators. According to Williams, he had never been around any drugs and did not know of any drug activity at his house.
After the defense rested its case, the State called Lieutenant Curtis as a rebuttal witness. Lieutenant Curtis testified that although they seized some appliances from Williams‘s house, they did not find any ledgers that referred to appliances.
. . . .
Ultimately, the jury found Williams guilty. . . . Now Williams appeals, claiming his convictions for possession with intent were not supported by sufficient evidence, and his trial counsel was ineffective for failing to file post-trial motions.
Williams v. State, No. 2019-KA-01007-COA, 2020 WL 7350420, at *1-3 (Miss. Ct. App. Dec. 15, 2020). The Court of Appeals majority concluded that the evidence was sufficient to support Williams‘s convictions for possession with intent, and it found his trial counsel had not been ineffective. Id. at *4-5.
DISCUSSION
¶4. On review of the sufficiency of the evidence, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Pace v. State, 242 So. 3d 107, 118 (Miss. 2018) (quoting Swanagan v. State, 229 So. 3d 698, 703 (Miss. 2017)). This Court must decide if “any rational trier of fact could have found each element of the crime beyond a reasonable doubt . . . .” Mujahid v. State, 324 So. 3d 275, 281 (Miss. 2021) (internal quotation marks omitted) (quoting Pace, 242 So. 3d at 119).
¶5. To establish possession of a controlled substance, the State must produce evidence that a defendant (1) was aware of the presence of a substance, (2) was aware of the character of the substance, and (3) was consciously and intentionally in possession of the substance. Haynes v. State, 250 So. 3d 1241, 1244-45 (Miss. 2018) (quoting Hudson v. State, 30 So. 3d 1199, 1203 (Miss. 2010)).
¶6. The third element, the defendant‘s conscious and intentional possession, can be established constructively if the evidence demonstrates the defendant had dominion or control over the substance. Id. at 1245 (quoting Hudson, 30 So. 3d at 1203). A finding of constructive possession requires a finding that the defendant had “some type of control over the drugs under the totality of the circumstances[.]” Berry v. State, 652 So. 2d 745, 750
¶7. Contraband may also be possessed by more than one person at a time. “Two persons may have constructive possession, or one may have actual possession and the other constructive possession.” Johnson v. State, 246 Miss. 182, 145 So. 2d 156, 158 (1962) (citing 103 A.L.R. 1313 (1936); 9 Am. Jur. Burglary § 86). Dominion and control constituting possession may be had “either directly or through another person.” Watkins v. State, 101 So. 3d 628, 635 (Miss. 2012).
¶8. And, in addition to joint possession, there is accomplice liability. Under Mississippi law, “[o]ne who aids and abets another in the commission of a crime is guilty as a principal.” Buchanan v. State, 316 So. 3d 619, 631 (Miss. 2021) (internal quotation marks omitted)
¶9. The jury in Williams‘s trial was instructed:
The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that ordinarily anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent by acting in concert with or under the direction of another person or persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others, it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime. Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator. In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.
The accomplice-liability theory was reiterated by the prosecuting attorney, who advanced it as the State‘s theory of constructive possession. He preceded his reiterating of the instruction by arguing:
Now, you heard several times also that this defendant, Lavar Williams, was in the Madison County Detention Center. And we don‘t dispute that. He was there from, I think we decided, December 4th all the way through January the 27th. So he was at the Madison County Detention Center at the time, which brings me to the next instruction I want you to take a look at . . . .
¶10. Evidence adduced at trial established that Williams was aware of the presence of substances in his home. Williams‘s recorded coded conversations with Jeremiah Kelly established that Williams was aware of and approved the presence of marijuana and cocaine in his home. Documents found at Williams‘s home corroborated the substance of his coded conversations with Kelly—specific drug transactions. In his petition for certiorari, Williams does not contest his convictions for conspiracy, implicitly conceding that he was aware of the presence of drugs in his home.1 Williams further admits that Kelly and Milton had access
¶11. After reviewing the record, we conclude that the evidence was more than sufficient for a reasonable jury to find, beyond a reasonable doubt, that Williams was guilty of two counts of possession with intent to distribute on the theory that he was an accessory before the fact—that Williams did some act to “incite, encourage, or assist the actual perpetrator in the commission of the crime.” See Malone, 486 So. 2d at 363 (internal quotation mark omitted). Further discussion would be academic, as an accessory before the fact “shall be deemed and considered a principal, and shall be indicted and punished as such.”
¶12. AFFIRMED.
RANDOLPH, C.J., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., COLEMAN AND GRIFFIS, JJ.; MAXWELL, J. JOINS IN PART.
KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:
¶14. “When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view the evidence in the light most favorable to the State and decide [whether] rational jurors could have found the State proved each element of the crime.” Lenoir v. State, 222 So. 3d 273, 279 (Miss. 2017) (citing Poole v. State, 46 So. 3d 290, 293 (Miss. 2010)). Further, “[w]e are not required to decide—and in fact we must refrain from deciding—whether we think the State proved the elements. Rather, we must decide whether a reasonable juror could rationally say that the State did.” Id. (internal quotation marks omitted) (quoting Poole, 46 So. 3d at 293-94).
¶15. This Court has established the following framework for constructive possession cases:
[W]hat constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible to a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. . . . Constructive possession may be shown by establishing that the drug involved was subject to [the defendant‘s] dominion or control.
Haynes v. State, 250 So. 3d 1241, 1244-45 (Miss. 2018) (second alteration in original) (quoting Hudson v. State, 30 So. 3d 1199, 1203 (Miss. 2010)). Additionally,
this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.
Terry v. State, 324 So. 3d 753, 756 (Miss. 2021) (quoting Dixon v. State, 953 So. 2d 1108, 1113 (Miss. 2007)). This Court has held that there is a rebuttable “presumption of constructive possession due to ownership of the premises[,]” which states:
one who is the owner in possession of the premises, or the vehicle in which contraband is kept or transported, is presumed to be in constructive possession of the articles found in or on the property possessed. The presumption of a constructive possession, however, is a rebuttable presumption and must give way to the facts proven. Moreover, the rebuttable presumption of constructive possession does not relieve the State of the burden to establish defendant‘s guilt as required by law and the defendant is presumed to be innocent until this is done.
Dixon, 953 So. 2d at 1113 (quoting Hamburg v. State, 248 So. 2d 430, 432 (Miss. 1971)).
¶17. Because the State adduced credible evidence that Williams had controlled the drugs through others, the evidence supports the State‘s theory that Williams constructively possessed the drugs. Yet the majority imputes to the State and decides the case on the unargued theory of accessory before the fact. The majority‘s analysis is founded upon jury instruction S-9. Maj. Op. ¶ 9. The majority says that “[t]he accomplice liability theory was reiterated by the prosecuting attorney, who advanced it as the State‘s theory of constructive possession.” Maj. Op. ¶ 9. While the instruction‘s main thrust is its articulation of an agency theory, it does make brief mention of the concept of aiding and abetting in one sentence that is quite confusing because it is out of context with the rest of the lengthy instruction in which it appears. The confusion fomented by that instruction is exacerbated by its reference to “mere presence at the scene of the crime,” which is inconsistent with the State‘s proof of Williams‘s involvement during his incarceration in a jail that was remote from the principal situs of the crime, his residence. In contrast, the State was granted four jury instructions that explicitly informed the jury of the law concerning constructive possession in Mississippi. The State argues correctly that constructive possession may be established if an individual has dominion or control over an item “either directly or through another person.” Watkins, 101 So. 3d at 635. Here, the State presented evidence that Williams had dominion and control over the drugs through Kelly and Milton. Viewing the evidence in the light most favorable
KING, P.J., COLEMAN AND GRIFFIS, JJ., JOIN THIS OPINION. MAXWELL, J., JOINS THIS OPINION IN PART.
Notes
United States v. King, 632 F.3d 646, 652 (10th Cir. 2011) (second and third alterations in original).We also have recognized that a defendant may exercise this ability or power personally or through others who have an adequate tie to the defendant. See [United States v. Al-Rekabi, 454 F.3d 1113, 1120 (10th Cir. 2006)] (“The bedrock of constructive possession—whether individual or joint, whether direct or through another person—is the ability to control the object.“) (emphasis added); United States v. Lindsey, 389 F.3d 1334, 1339 (10th Cir. 2004) (“The evidence . . . showed Defendant maintained constructive possession of the firearms while Watson transported them [separately] in the U-Haul because he exercised dominion and control over Watson and the U-Haul. Defendant, although not in actual possession of the firearms at the time of his arrest, had both the power and the intention at the relevant time to exercise dominion and control over the firearms, either directly or through Watson.” (emphasis added)); United States v. Carter, 130 F.3d 1432, 1441 (10th Cir. 1997) (holding that the defendant had constructive possession of drugs that were being transported by a third party based on a delivery agreement he made with the driver that made it “reasonable to infer [that the defendant] had the ability to guide the destination of the cocaine“); cf. [United States v.] Massey, 687 F. 2d 1348, 1354 (10th Cir. 1982) (stating that a defendant may have constructive possession over narcotics when he or she has “some appreciable ability to guide the destiny of the drug” (quoting United States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978))).