Anthony Davon Jefferson v. State of Mississippi , 2016 Miss. App. LEXIS 705 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-00948-COA
ANTHONY DAVON JEFFERSON A/K/A APPELLANT
ANTHONY DEVON JEFFERSON A/K/A
ANTHONY JEFFERSON A/K/A MARCUS ROSS
A/K/A WESLEY THOMPSON A/K/A ANTHONY
DAVIS JEFFERSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/15/2013
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
PHILLIP BROADHEAD
WILLIAM ANDY SUMRALL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
JASON L. DAVIS
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, POSSESSION
WITH INTENT TO SELL ONE KILOGRAM
BUT LESS THAN FIVE KILOGRAMS OF
MARIJUANA, AND SENTENCED TO
SIXTY YEARS AS A HABITUAL
OFFENDER; AND COUNT II,
CONSPIRACY TO POSSESS ONE
KILOGRAM BUT LESS THAN FIVE
KILOGRAMS OF MARIJUANA, AND
SENTENCED TO FORTY YEARS AS A
HABITUAL OFFENDER, WITH THE
SENTENCES TO RUN CONCURRENTLY IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 11/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., FAIR AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. This is an appeal from Madison County Circuit Court of the jury-trial conviction of
Anthony Jefferson for possession of marijuana and conspiracy to possess marijuana. On
appeal, Jefferson asserts error because the circuit court allowed testimony about Jefferson’s
prior oral statement to police; because testimony and opening statements included references
to an out-of-court statement of Paulette Jefferson (Paulette), who did not testify; and because
the court failed to grant Jefferson’s motion for a judgment notwithstanding the verdict or, in
the alternative, a new trial. Finding no error, we affirm.
FACTS AND PROCEEDINGS BELOW
¶2. On August 17, 2011, Dominick Riley, United States postal inspector, became
suspicious of a package mailed from California to Canton, Mississippi. The package’s
sender’s name did not match the sender’s address. Also, the package came from California,
a “source state” for narcotics shipping in the United States. Riley contacted the Mississippi
Bureau of Narcotics (MBN), whose K-9 unit later alerted to the presence of narcotics in the
package. After securing a federal search warrant, the package was opened, and approximately
two kilograms of marijuana was discovered. Riley and MBN coordinated to execute a
controlled delivery of the package addressed to “the Jefferson family” at “331 Dobson
Avenue, number two,” Canton, MS 39046.
¶3. At the August 18, 2011 controlled delivery, Riley represented himself as a postal
worker delivering the package, while MBN agents observed. When Riley knocked on the
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door at the address, Paulette came out of the house. Riley asked Paulette if she was expecting
a package. She said that she was and signed for the package using a false name (Paulette
Hackett). Riley handed the package to Paulette and left. The observing MBN agents,
Candace Edwards and Anthony Moser, her partner, were in their vehicle. They watched
Paulette take possession of the package, then turn to reenter the house. Edwards next
observed Paulette look at Edwards’s vehicle, throw the package to the ground, and run back
into the house. Moser then quickly exited the vehicle in pursuit of Paulette, followed by
Edwards.
¶4. Pursuing Paulette into the home, Edwards and Moser discovered two females, one
male, a loaded shotgun, and misdemeanor amounts of illegal substances. While at the scene,
Edwards learned from the occupants of the home that Jefferson and his father were en route
to the location to retrieve the marijuana. Jefferson and his father arrived at the house and
were told to get out of their vehicle and put their hands up, to which they complied. Wesley
Layton, the supervising MBN agent, arrived on the scene shortly after. Layton testified that
after he arrived, he observed Jefferson and his father in handcuffs, and approached them
intending to resolve the identities of the two men. After he approached Jefferson, he asked
him “[what was] going on, you know, who he was.” In his response, Jefferson told Layton
that the package was his.1
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Jefferson’s counsel contemporaneously objected to Layton’s testimony on anything
that Jefferson said to Layton while he was in handcuffs unless Layton could prove that
Jefferson had been read his Miranda rights, as he asserted Jefferson was under arrest and in
handcuffs. The circuit court overruled the objection on the basis that the questioning was
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¶5. The next day, Edwards and Moser informed Jefferson of his Miranda rights, which
he waived via a written waiver form that he signed twice. According to the agents, Jefferson
told them that he knew the package was coming, that he arranged for an individual in
California to send the package, and that he intended to sell the marijuana. He also made a
written statement in which he reiterated that he knew the package was coming, but recanted
that he knew what was in the package. Jefferson and Paulette were indicted for possession
of marijuana and conspiracy to possess marijuana. The case proceeded to trial, which
commenced on May 15, 2012.
¶6. A suppression hearing was held on May 14, 2012, the day before trial, at which
Jefferson was present. Paulette’s out-of-court statement was not discussed at the suppression
hearing, other than a reference made to it by Edwards while testifying to other matters. The
court considered Jefferson’s oral and written statements during his interrogation to be
voluntary and allowable at trial. After conclusion of the suppression hearing but before trial
began, Jefferson voluntarily fled. The court commenced trial the next day after having found
that Jefferson was voluntarily, wilfully, and deliberately absent from trial and, as a result,
waived his right to be present at trial. Neither the State nor Jefferson’s counsel objected to
the court’s finding.
¶7. In opening statements, the State stated that it expected the proof to show that
statements were made by Paulette that implicated Jefferson. Jefferson’s counsel
only to resolve the ambiguous situation of Jefferson’s and his father’s identities. Jefferson
does not appeal the admission of Layton’s testimony.
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contemporaneously objected to the mention of any statements made by Paulette. The trial
judge overruled the objection, noting that the statement was made as part of opening
statements.
¶8. During trial, the trial court allowed Edwards’s and Moser’s testimony regarding
Jefferson’s verbal statement in addition to the written statement of Jefferson. Edwards was
also allowed to testify regarding the course of her investigation and how it unfolded.
Jefferson’s counsel also contemporaneously objected to the respective parts of their
testimony that mentioned statements made to them by Paulette as inadmissible hearsay. The
circuit court overruled the objections, noting that there could be no mention that Paulette
made the statement, but that their testimony would be allowed to explain the course of their
investigation and why they acted as they did in remaining at the residence after having
detained all the occupants.
¶9. Specifically, at trial, Edwards testified: “[I was] advised that someone was supposed
to contact Mr. Jefferson and advise him that the box had been received[,] and . . . the plan
was that he was going to come get it because the person at the residence had spoken to Mr.
Jefferson or someone significant to Mr. Jefferson, earlier in the day to advise the female who
sent the box that it should be coming.” Further, Edwards testified that she “learned
[Jefferson] was already en route to the residence . . . with an individual[,] . . . [a]nd when
they arrive[d], [they were] going to come to the residence, and the reason they were coming
to the residence was to retrieve the package.” Paulette never testified.
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¶10. In a jury trial, Jefferson was convicted of possession of marijuana in an amount more
than one kilogram but less than five kilograms with intent to distribute, and conspiracy to
possess marijuana in an amount greater than one kilogram but less than five kilograms.
Jefferson moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative,
a new trial, which was denied. Jefferson now appeals to this Court.
DISCUSSION
¶11. Jefferson asserts the trial court erred because it admitted testimony on Jefferson’s
verbal confession, because it admitted testimony from Edwards about the questioning of
Paulette, because of an improper comment during opening statements about a statement from
Paulette when she was not going to be a witness, because it denied the motion for a JNOV,
and because it denied the motion for a new trial.
I. Admission of Verbal Confession
¶12. Jefferson argues that the trial court erred in refusing to suppress his verbal confession.
He argues that because it is in conflict with his written statement, it is inadmissible. “Whether
a confession is admissible is a fact-finding function for the trial court, and its decision will
not be overturned unless the trial court applied an incorrect legal standard, committed
manifest error, or made a decision against the overwhelming weight of the evidence.” Haynes
v. State, 934 So. 2d 983, 988 (¶15) (Miss. 2006) (citations omitted). “Once a trial judge has
determined, at a preliminary hearing, that a confession is admissible, the defendant/appellant
has a heavy burden in attempting to reverse that decision on appeal.” Payton v. State, 897 So.
2d 921, 935 (¶29) (Miss. 2003) (citation omitted). “The prosecution has the burden of
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proving beyond a reasonable doubt that the confession was voluntary. The State meets its
burden and makes a prima facie case when an officer or other person who has knowledge of
the facts testifies that the confession was made voluntarily, without threats, coercion, or offer
of reward.” Id. at (¶30).
¶13. At the suppression hearing, the State presented the testimony of both Edwards and
Moser in support of allowing testimony regarding the verbal confession to be admitted.
Jefferson testified that he stated to the agents that he did not know the contents of the
package, but was expecting the package. Jefferson agreed that he signed a Miranda waiver
at the beginning of the interview, and made his written statement at the end of the interview.
Jefferson testified that the interview only lasted approximately thirty minutes. Edwards and
Moser both testified, contrary to Jefferson’s claim, that Jefferson stated to them at the post-
Miranda interview that he knew the package was coming, that he arranged for an individual
in California to send the package, and that he intended to sell the marijuana. Further, they
testified that the interview lasted approximately two hours. Jefferson’s Miranda waiver,
which was made at the beginning of the interview, was signed at 3:43 p.m., and his written
statement, which was made at the end of the interview, was signed at 5:17 p.m. Jefferson
could provide no explanation for the more-than-one-hour discrepancy between the signing
times and how long he said the interview lasted.
¶14. The trial court did not abuse its discretion in finding that Jefferson’s version of what
occurred during the interview was not credible. Further, the fact that the verbal confession
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was neither reduced to writing and signed nor recorded did not render it inadmissible. Cobb
v. State, 734 So. 2d 182, 184-85 (¶¶5-7) (Miss. Ct. App. 1999) (Testimony to exclude a
confession will not suffice if it is contradicted by competent evidence that the statements
were, in fact, made.). Thus, we find this claim is without merit.
II. Statements Made by Paulette Jefferson
¶15. Jefferson asserts the prosecution erred during opening statements in saying that it
intended to prove statements made by Paulette. Jefferson further asserts that the trial court
erred by allowing Edwards and Moser to testify regarding the investigation.
A. Opening Statement
¶16. Jefferson argues the prosecution erred when in opening statements the prosecution
stated that it intended to prove Paulette said the package was not hers, that the package was
Jefferson’s, and that Jefferson told her to sign for it, because the prosecution could not have
reasonably expected it would be able to offer those statements into evidence. Specifically,
Jefferson takes issue with the prosecution stating: “[E]vidence is going to show that, upon
questioning, . . . [Paulette] said, look [that is] not my package[.]” Jefferson
contemporaneously objected to the prosecutor’s opening statement. During trial the statement
of Paulette was not introduced. The standard of review for an improper comment in opening
statements is “whether the natural and probable effect of the improper argument is to create
unjust prejudice against the accused so as to result in a decision influenced by the prejudice
so created.” Slaughter v. State, 815 So. 2d 1122, 1130 (¶45) (Miss. 2002). The trial court
instructed the jury that opening statements and the arguments made in them are neither
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evidence nor instructions on the law. The Mississippi Supreme Court has found that properly
instructing the jury that opening statements are not evidence is generally sufficient to
mitigate against attorneys stating what they expect the proof to show and the proof not
following the expectation laid out in opening statements. Id. at 1131-32 (¶¶52-53). Thus, we
find this claim is without merit.
B. Testimony
¶17. Jefferson asserts that the trial court erred by allowing course-of-investigation
testimony from Edwards because the testimony contained information obtained from Paulette
that should have been excluded as impermissible hearsay and a violation of his Confrontation
Clause right to confront adverse witnesses.
¶18. Confrontation Clause objections are reviewed de novo. Birkhead v. State, 57 So. 3d
1223, 1233 (¶35) (Miss. 2011) (citation omitted). Hearsay is “a statement that . . . the
declarant does not make while testifying at the current trial or hearing[,] and a party offers
in evidence to prove the truth of the matter asserted in the statement.” M.R.E. 801(c). In
general, hearsay is inadmissable unless otherwise provided by law. Hillard v. State, 950 So.
2d 224, 229 (¶23) (Miss. Ct. App. 2007); M.R.E. 802. “Testimonial hearsay must be exposed
to confrontation by way of cross-examination prior to reaching admissible status, while
nontestimonial hearsay does not trigger the need for confrontation to be admissible.” Hillard,
950 So. 2d at 229 (¶22).
¶19. An officer’s testimony being offered to explain why he or she acted as he or she did,
and not for the truth of the matter asserted, is not hearsay and is admissible. Neal v. State, 15
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So. 3d 388, 404 (¶36) (Miss. 2009); see also Darnell v. Darnell, 167 So. 3d 195, 202 (¶¶16-
17) (Miss. 2014).2 Information obtained in the course of an investigation is admissible when
it is for providing the basis of the investigation and ultimate arrest of the defendant. Kolberg
v. State, 829 So. 2d 29, 76-77 (¶¶133-34) (Miss. 2002) (overruled on other grounds).
¶20. Here, as part of Edwards’s testimony, she stated that, based on statements Paulette
made to her at the scene, she came to learn that individuals at the residence were supposed
to contact Jefferson to let him know the package had arrived, that he was expected to come
to the residence to retrieve the package, and that he was already en route to the location with
his father. Jefferson’s counsel contemporaneously objected to Edwards’s reference to
Paulette’s statement. The court overruled Jefferson’s objection on the basis that the statement
was not being offered to prove the truth of the matter asserted, but to demonstrate why
Edwards and her fellow agents acted as they did, justifying why they waited at the residence.
¶21. Edwards’s statements were not hearsay, nor were they testimonial of what Paulette
said. Paulette did not testify at trial. Edwards’s testimony did not mention Paulette and was
not used or admitted for what Paulette said, but to explain why the officers remained at the
residence awaiting the arrival of Jefferson. Thus, we find that the circuit court was correct
in holding that such testimony was admissible and not hearsay, as it was provided for the
basis of why the agents acted as they did and was not offered for proof of the matter asserted.
Thus, this issue is without merit.
2
See also Parham Williams, Williams on Mississippi Evidence § 8.06[3] (2016).
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¶22. Even if we were to find the testimony inadmissible, its admission at trial was harmless
error. There was sufficient other evidence to prove that Jefferson conspired with Paulette to
possess the marijuana: the package contained marijuana, Paulette accepted the package,
Paulette stated to Riley that she was expecting a package, Paulette signed for the package
using a false name, and Paulette threw the package to the ground after she spotted officers
observing her receiving the package. Jefferson admitted to Edwards and Moser (1) that the
marijuana was his, (2) that he had it sent to the house, and (3) that he intended to sell it in
Mississippi, all after Jefferson had signed a written Miranda waiver. Thus, we find this issue
is without merit.
III. Denial of Jefferson’s Motion for a JNOV or New Trial
¶23. Jefferson asserts that the trial court erred in denying his motion for a JNOV or, in the
alternative, a new trial because the evidence presented at trial was not legally sufficient and
was against the overwhelming weight of the evidence for both the conspiracy and possession-
with-intent-to-sell charges.
A. Sufficiency of the Evidence
¶24. The critical inquiry in addressing a challenge to the sufficiency of evidence “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.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Carr v. State,
208 So. 2d 886, 889 (Miss. 1968)). “The relevant question is whether, after viewing the
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evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (citing Jackson v.
Virginia, 443 U.S. 307, 315 (1979)).
¶25. On appeal, Jefferson asserts he never possessed the marijuana and that he did not
conspire with Paulette to possess the marijuana. “Possession of a controlled substance may
be actual or constructive.” Knight v. State, 72 So. 3d 1056, 1063 (¶26) (Miss. 2011) (citing
Dixon v. State, 953 So. 2d 1108, 1112 (¶9) (Miss. 2007)). “Constructive possession may be
established where the evidence, considered under the totality of the circumstances, shows
that the defendant knowingly exercised control over the contraband.” Id. Admitting to
ownership of the illegal substance is sufficient for possession. Mitchell v. State, 754 So. 2d
519, 522 (¶10) (Miss. Ct. App. 1999). Jefferson admitted to ownership of the marijuana in
his confession to Edwards and Moser as well as at the scene the day he was arrested. Further,
he admitted that he arranged to have the marijuana sent to the house. We find there was
sufficient evidence to support the jury’s finding that Jefferson possessed the marijuana. Thus,
this issue is without merit.
¶26. To prove a conspiracy, the State must prove that “two or more persons agreed to
commit a crime or agreed to accomplish an unlawful purpose.” Berry v. State, 996 So. 2d
782, 787 (¶12) (Miss. 2008) (citations omitted); Miss. Code Ann. § 97-1-1 (Rev. 2014). No
express or formal agreement need be proven. Berry, 996 So. 2d at 787 (¶13). “A conspiracy
can be proven by the acts and conduct of the alleged conspirators and can be inferred from
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the circumstances.” Id. Jefferson admitted that the package was his, that he sent the package
to the house, and that he intended to take the marijuana and sell it. Paulette received the box
from Riley, told Riley she was expecting a package, signed for it using a false name, and
threw the package to the ground upon spotting the officers. Further, Jefferson arrived at the
scene to collect the package and admitted ownership. The jury found, based on the acts and
conduct of Paulette and Jefferson, that they conspired to possess the marijuana. We find that
the evidence was sufficient to support the jury’s finding. Thus, this issue is without merit.
B. Weight of the Evidence
¶27. When reviewing a claim that a conviction is against the weight of the evidence, this
Court will only disturb a verdict when it is so contrary to the overwhelming weight of the
evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So.
2d at 844 (¶18) (citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). A reversal on the
grounds that the verdict was against the overwhelming weight of the evidence means that,
“as the thirteenth juror, the court simply disagrees with the jury's resolution of the conflicting
testimony.” Id. (citing McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)). “[The]
difference of opinion does not signify acquittal any more than a disagreement among the
jurors themselves.” Id. “Instead the proper remedy is to grant a new trial.” Id.
¶28. At trial, evidence was presented that Jefferson confessed to ownership of the
marijuana, that he had it sent to the house, and that he was going to sell it. Evidence was also
presented demonstrating that Paulette said she was expecting a package, that she used a false
name to sign for it, that she threw it to the ground when she spotted officers observing her,
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that Jefferson came to the house to get the package, and that Jefferson admitted ownership
of the package. We agree with the decision of the jury. Thus, we find this issue is without
merit.
CONCLUSION
¶29. We affirm the Madison County Circuit Court’s conviction of Jefferson for possession
of marijuana with the intent to sell in an amount greater than one kilogram but less than five
kilograms and for conspiracy to possess marijuana in an amount greater than one kilogram
but less than five kilograms, and his sentence as a habitual offender.
¶30. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, POSSESSION WITH INTENT TO SELL ONE
KILOGRAM BUT LESS THAN FIVE KILOGRAMS OF MARIJUANA, AND
SENTENCE OF SIXTY YEARS AS A HABITUAL OFFENDER; AND COUNT II,
CONSPIRACY TO POSSESS ONE KILOGRAM BUT LESS THAN FIVE
KILOGRAMS OF MARIJUANA, AND SENTENCE OF FORTY YEARS AS A
HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONCURRENTLY
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON AND FAIR, JJ.,
CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION.
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