Nitin Malik v. State of Mississippi ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-01495-COA
NITIN MALIK A/K/A NATIN MALIK A/K/A APPELLANT
MATIN MALIK
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/11/2015
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER
RICHARD ANTHONY FILCE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 12/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Nitin Malik was convicted of two counts of the sale of hydrocodone with
acetaminophen, a schedule III controlled substance, in violation of Mississippi Code
Annotated section 41-29-139 (Rev. 2013). He was sentenced to two consecutive eight-year
terms. The Rankin County Circuit Court denied Malik’s posttrial motion. Malik now
appeals. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On May 3, 2013, the Mississippi Bureau of Narcotics (MBN) sent a confidential
informant (CI) into Hometown Quickie, a convenience store located in Richland. The CI
went there to purchase hydrocodone with acetaminophen pills, more commonly known as
Lorcet 10 pills. The MBN agents equipped the CI with an audio-and-video recording device,
fifty dollars, and a vehicle. When the CI entered the store, she encountered Malik and after
several minutes of random conversation, requested “eight for forty.” This transaction was
captured on the audio recording but not on video.
¶3. Immediately after the purchase, the CI met with an MBN agent and turned over eight
pills and ten dollars change. The pills were sent off to a crime lab and tested positive for
hydrocodone with acetaminophen, or Lorcet 10 pills. The pills were later used as evidence
against Malik. MBN did not immediately arrest Malik; instead the agency continued
building a case against him.
¶4. On June 3, 2013, an MBN agent and the CI worked together to make another purchase
from Malik. The CI allegedly prearranged a meeting with Malik. The CI again drove to the
convenience store and purchased pills from Malik. The CI purchased ten pills for fifty
dollars. This subsequent transaction was not captured on audio or video recording because
the device’s battery died shortly before the transaction began.
¶5. On this occasion, the MBN agent followed the CI to the store and watched her go
inside. The agent waited outside and listened to the transaction through his equipment,
which worked with the CI’s device. Once the task was complete, the MBN agent met with
the CI and collected the bag of pills. The crime lab confirmed that the ten pills contained
hydrocodone with acetaminophen.
¶6. On September 3, 2014, a grand jury returned a four-count indictment on Malik. Malik
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was charged with two counts of the sale of a controlled substance (Counts I and III) and two
counts of conspiracy to sell a controlled substance (Count II and IV). On May 4, 2015, the
case proceeded to trial on Counts I and III only. Counts II and IV were ordered nolle
prosequi1 pursuant to the State’s motion that in exchange for Malik’s guilty plea on Counts
I and III, the conspiracy charges would be abandoned. Notably, the State did not pursue the
conspiracy charges after Malik elected to proceed with a trial.
¶7. Following a two-day jury trial, Malik was found guilty on both counts. On May 11,
2015, he was sentenced to eight years on Count I, for the sale of less than ten dosage units,
and he received an eight-year sentence on Count III, for the sale of ten dosage units but less
than twenty dosage units. The sentences were order to run consecutively, with all time to be
served in the custody of the Mississippi Department of Corrections.
¶8. Malik timely filed posttrial motions for a new trial and an amended motion for a
judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Within his
motion he also requested a hearing to allow testimony of witnesses for completion of the
record. Malik asserted that (1) the State failed to provide the defense with exculpatory
evidence during discovery, (2) the State made improper closing arguments, (3) the trial court
erred in allowing evidence of prior bad acts, and (4) his counsel was ineffective. Following
a hearing on August 29, 2016, the circuit judge found that the motions were not supported
by the evidence in the case. The motions were denied. Aggrieved, Malik appeals and asserts
the same. We find no error and affirm.
1
Nolle prosequi is a Latin term that serves as “a legal notice that a lawsuit or
prosecution has been abandoned.” Black’s Law Dictionary (10th ed. 2014).
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ANALYSIS
¶9. On appeal, Malik raises each issue asserted below. He asserts that each issue is
inextricably intertwined and resulted in prejudice to him during the trial. We address each
separately.
I. Brady Violation
¶10. Malik first argues that the State failed to disclose exculpatory evidence that was
favorable to him, in violation of Brady v. Maryland, 373 U.S. 83 (1963). He argues that the
State had a duty to reveal that the same CI that testified against him had unsuccessfully
sought to purchase pills from him on an occasion prior to May 3 and June 3, 2013. Malik
asserts that “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. He argues that the
State never disclosed the failed purchase attempt, and, in fact, it argued otherwise to the jury.
He contends that a reasonable probability exists that the outcome of the trial would have been
different if this evidence had been disclosed.
¶11. The Mississippi Supreme Court has held that “[t]he standard of review for a trial
court’s ruling on a discovery violation is abuse of discretion.” Curry v. State, 939 So. 2d
785, 787 (¶8) (Miss. 2006). Further, the supreme court “has stated not all failures to disclose
exculpatory evidence constitute reversible error.” Id. “The question to be asked regarding
a discovery violation is whether there is a reasonable probability that the verdict would have
been different but for the governmental evidentiary suppression, which undermines
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confidence in the outcome of the trial.” Id.
¶12. Following his conviction, Malik obtained new counsel and filed an “Amended Motion
for Judgment Notwithstanding the Verdict or in the Alternative a New Trial and Specific
Request for a Hearing to Allow Testimony of Witnesses for Purposes of Completion of
Record.” The circuit judge granted the request for a hearing. On August 29, 2016, both
parties argued their positions with regard to the alleged exculpatory evidence. Malik asserted
that the video and/or audio recording, made by law enforcement, of the unsuccessful
purchase attempt constituted exculpatory evidence. He argued that the evidence could have
been used at trial to substantially discredit the CI’s testimony. The State contended that the
failed purchase attempt was not exculpatory evidence because it turned out that Malik had
no pills to sell – not that he refused to sell the CI the pills. The circuit judge agreed with the
State and declined to find that the failed purchase should be considered exculpatory evidence.
¶13. The issue is now before us. When dealing with alleged Brady violations, the supreme
court has held:
To establish a Brady violation, a defendant must prove the following: (1) that
the government possessed evidence favorable to the defendant (including
impeachment evidence); (2) that the defendant does not possess the evidence
nor could he obtain it himself with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the evidence
been disclosed to the defense, a reasonable probability exists that the outcome
of the proceedings would have been different.
Fortenberry v. State, 191 So. 3d 1245, 1255 (¶32) (Miss. Ct. App. 2015) (quoting King v.
State, 656 So. 2d 1168, 1174 (Miss. 1995)).
¶14. As to the first prong, the record clearly provides that the State did not possess a
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recording, or any physical evidence, of the prior failed purchase attempt. During the hearing
on the motion, the State informed the court that Agent Richard Wright with MBN was
present and prepared to testify to the events surrounding the failed purchase attempt. The
State confirmed that MBN did in fact send the CI into Malik’s store to purchase pills;
however, Malik had no pills to sell and directed the CI to a relative’s home. The CI was
unable to purchase from Malik’s relative because the relative also had no pills to sell. As a
result, MBN made no record of the attempt, and, in fact, the recording had been taped over
since no case was being made from the attempt. Because the alleged encounter was not
recorded, and also because the MBN agent’s testimony would likely show that the only
reason the CI was unsuccessful was because Malik had no pills to sell at the time, we do not
find the alleged exculpatory evidence favorable to Malik. This prong is not satisfied.
¶15. We also do not find that the second prong of Brady is satisfied. It is evident that
Malik does not possess physical evidence of the purchase attempt, as the record confirms that
no audio or video recording exists. The audio and video recording was never downloaded,
no report of the attempt was made, the recording was eventually taped over, and no criminal
case exists regarding the attempt. With regard to whether Malik could have obtained the
recording, we find no evidence in the record that Malik’s trial counsel either corresponded
with or attempted to meet with the MBN agents to obtain information pertaining to any
previous purchase attempts. There is also no claim that Malik had no access to the agents.
Thus, we find that with reasonable diligence, Malik’s trial counsel could have obtained this
information.
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¶16. As to the third prong, we do not find that the State suppressed evidence that was
favorable to Malik. First, we cannot say that the evidence was actually favorable to him.
Furthermore, we find no evidence in the record that suggests that the State suppressed the
evidence. This prong is not satisfied.
¶17. Likewise, we find that the fourth prong is not satisfied. Based on the foregoing
analysis, we do not conclude that a reasonable probability exists that the outcome would have
been different if the purchase attempt had been disclosed to the defense.
¶18. We do not find that Malik’s theories or speculation of how the jury may have
perceived the information overcomes the four-pronged test in Brady. Therefore, we find no
error in the circuit judge’s holding that the failed purchase attempt did not constitute
exculpatory evidence. This issue is without merit.
II. Improper Closing Argument
¶19. Malik next argues that the State improperly stated in its closing argument that the CI
had bought drugs from him on prior occasions. He further argues that the State made the
statements in an attempt to bolster the CI’s credibility, which he asserts was lawyer
misconduct that created prejudice and also violated the Mississippi Rules of Evidence.
¶20. “The standard of review that this Court must apply to lawyer misconduct during
opening statements or closing arguments 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.” Wilson v. State, 194 So. 3d 855, 864 (¶30)
(Miss. 2016) (citation and internal quotation marks omitted). “The purpose of a closing
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argument is to fairly sum up the evidence.” Id. (citation omitted). “Prosecutors are not
allowed to employ tactics [that] are inflammatory, highly prejudicial, or reasonably calculated
to unduly influence the jury.” Id. (citation and internal quotation marks omitted). “The
prosecutor may comment upon any facts introduced into evidence, and he may draw
whatever deductions and inferences that seem proper to him from the facts.” Id. (citation
omitted). “Counsel cannot, however, state facts which are not in evidence, and which the
court does not judicially know, in aid of his evidence.” Id.
¶21. During closing argument, the State discussed the CI’s inclination to cooperate with
law enforcement. The State noted that the CI was a former nurse who had been caught
forging prescriptions in order to obtain pills illegally. The CI had lost her nursing license,
was facing criminal charges in both Rankin and Simpson Counties, and, if convicted, she
could lose custody of her children. The State acknowledged that the CI’s credibility was an
issue.
¶22. The State noted that the CI had been addicted to pain medication and that she was
willing to buy drugs to cooperate with law enforcement. The State then made the following
statement to the jury:
Where does somebody addicted to pain medicine go to get their drugs? To
somebody they know . . . will sell them drugs. . . . Who did she make
arrangements to buy Lorcet or Hydrocodone-Acetaminophen from? This
defendant, two separate times, May the 3rd, June the 3rd, that’s who she went
and bought drugs from, not some stranger, not some random person at a
convenien[ce] store that she had never met or didn’t know.
At that point, defense counsel objected that the statements were going beyond the record.
The circuit judge overruled the objection, stating that “the jury’s recollection of the evidence
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will control. This is argument.” The State continued its argument, asserting that the CI
“went to Nitin Malik, who she knew she could buy drugs from.”
¶23. Malik contends that the State’s reference implied that the CI had purchased drugs
from him on prior occasions. He asserts the statements served to introduce facts that were
not in evidence – which prejudiced him before the jury. He argues the statements were also
used to bolster the CI’s credibility.
¶24. This Court has previously held that “arguing statements of fact that are not in evidence
or necessarily inferable from it and that are prejudicial to the defendant is error.” Mitchell
v. State, 720 So. 2d 492, 495-96 (Miss. Ct. App. 1998). However, this Court has also held
that counsel “may draw whatever deductions and inferences that seem proper to him from
the facts.” Giles v. State, 187 So. 3d 116, 124 (¶28) (Miss. 1998). While the State’s
comments suggest that the CI previously purchased pills from Malik, the statements were not
improper. The CI and two MBN agents testified that Malik became known to them through
their investigation into the CI’s alleged relationship with him. Therefore, the State’s
comments were appropriately based upon facts established through witness testimony.
¶25. The inference that the CI had previously purchased pills could have been reasonably
drawn from the testimony. The State did not make reference to the previous attempt or
provide any new facts pertaining to prior purchases. Furthermore, we note that the jury was
instructed to regard the arguments, statements, and remarks made by counsel during closing
arguments as a means to help with understanding the evidence and application of the law, but
not as evidence. Therefore, we do not find that the closing argument created unjust prejudice
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against Malik or influenced the jury’s decision.
¶26. This Court has previously held that “[t]he standard of review for the admission or
exclusion of evidence is . . . abuse of discretion.” Liddell v. State, 33 So. 3d 524, 529 (¶12)
(Miss. Ct. App. 2010) (citation omitted). “A trial judge enjoys a great deal of discretion as
to the relevancy and admissibility of evidence.” Id. “Unless the judge abuses this discretion
so as to be prejudicial to the accused, the Court will not reverse th[e] ruling.” Id at 529-30
(¶12) (quoting Williams v. State, 991 So. 2d 593, 597 (¶8) (Miss. 2008)). This issue is
without merit.
III. Prior-Bad-Acts Evidence
¶27. As to the alleged violation of Mississippi Rule of Evidence 404(b), we do not find that
the statements made by the State during closing argument sought to introduce evidence of
other crimes, wrongs, or bad acts of the defendant. Malik contends that the State’s references
were used to show that he had committed other similar offenses, and, therefore, he must have
committed the offenses for which he was being tried. We do not find that the State suggested
that the CI had purchased pills from Malik on a prior occasion. Rather, we interpret the
statements to mean that the CI knew that she could buy drugs from him. Such knowledge
was not necessarily limited to previous personal experience.
¶28. During the hearing on the posttrial motion, the circuit judge declined to accept Malik’s
reasoning that mere knowledge was proof that he had sold pills on a prior occasion. The
circuit judge concluded that the statements did not equate to the State “putting on evidence
of any prior bad acts.” Likewise, we hold that the State did not violate Rule 404(b) in its
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closing argument because the statements were not made to prove that Malik had sold drugs
to the CI before.
¶29. We find no abuse of discretion by the circuit judge. The decision to overrule Malik’s
objection to the State’s closing argument created no prejudice to the accused. This issue is
without merit.
IV. Ineffective Assistance of Counsel
¶30. In his final assignment of error, Malik asserts that he received ineffective assistance
of counsel when his trial counsel failed to adequately conduct a pretrial investigation to
explore an eyewitness’s potential testimony for trial. He further asserts that the eyewitness’s
prospective testimony refuted the State’s case. He contends that the eyewitness testimony
would have been persuasive to the defense’s theory that the CI fabricated the drug buys.
¶31. “When considering a claim of ineffective assistance of counsel, this Court must find
that trial counsel’s performance was deficient and that there would have been a different
result in the verdict if it were not for trial counsel’s deficiency.” Payton v. State, 41 So. 3d
713, 719 (¶23) (Miss. Ct. App. 2009) (citation omitted). “There is a rebuttable presumption
that counsel’s representation is competent and that the acts in question fall within the ‘wide
range of professionally competent assistance.’” Porter v. State, 963 So. 2d 1225, 1229 (¶15)
(Miss. Ct. App. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)).
¶32. Additionally,
[this] Court rarely determines issues of ineffective assistance of counsel on
direct appeal unless: “(1) the record affirmatively shows ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is
adequate to allow the appellate court to make the finding without consideration
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of the findings of fact of the trial court.”
Payton, 41 So. 3d at 719 (¶23) (quoting Graves v. State, 914 So. 2d 788, 798 (¶35) (Miss.
Ct. App. 2005)).
¶33. Malik maintains that his attorney rendered ineffective assistance when he failed to
adequately explore the cashier’s eyewitness testimony. He argues that the cashier should
have been called to testify on his behalf about the CI’s alleged fabricated drug purchase. In
support of this claim, he cites to the supreme court’s holding in Johns v. State, 926 So. 2d
188 (Miss. 2006), where the court reversed on the basis that the defendant’s counsel had
rendered ineffective assistance. The defendant’s trial counsel had failed to interview an alibi
witness.
¶34. The State disputes Malik’s contention that this case is analogous to Johns. The State
asserts that, “at a minimum, counsel has a duty to interview potential witnesses and to make
independent investigation of the facts and circumstances of the case.” (Quoting Payton v.
State, 708 So. 2d 559, 561 (¶8) (Miss. 1998)). The State asserts that unlike the factual
scenario in Johns, Malik’s eyewitness was in fact interviewed before the trial, albeit just
three days prior to the trial. We agree that this case is distinguishable from Johns.
¶35. Moreover, we find that trial counsel did not render ineffective assistance solely
because he elected not to call the cashier as an eyewitness for Malik. This Court has
previously held that “[c]ounsel’s choice of whether or not to file certain motions, call
witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial
strategy and will not stand as support for an ineffective[-]assistance[-]of[-]counsel claim.”
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Jackson v. State, 73 So. 3d 1176, 1181-82 (¶22) (Miss. Ct. App. 2011) (citations and internal
quotation marks omitted).
¶36. Further, “[t]his Court will only under exceptional circumstances[] second guess
counsel on matters of trial strategy.” Hill v. State, 850 So. 2d 223, 226 (¶14) (Miss. Ct. App.
2003) (citing Marshall v. State, 759 So. 2d 511, 513 (¶11) (Miss. Ct. App. 2000)). We do
not find that the alleged errors by Malik’s trial counsel “were so egregious as to constitute
a deficiency in performance or prejudicial to [Malik]’s defense as to affect the outcome of
trial.” Cole v. State, 666 So. 2d 767, 777 (Miss. 1995).
¶37. Additionally, we find no indication of ineffective assistance of counsel in the record.
“The Mississippi Supreme Court has stated that, where the record cannot support an
ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the appropriate conclusion is
to deny relief, preserving the defendant’s right to argue the same issue through a petition for
post-conviction relief.” Wilcher v. State, 863 So. 2d 719, 761 (¶162) (Miss. 2003) (quoting
Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2002)). “We may determine the
merits of the claim [of ineffective assistance of counsel] on direct appeal only if the record
affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that
the record is adequate . . . . ” Liddell, 33 So. 3d at 533 (¶31) (citation and internal quotation
marks omitted). The record does not affirmatively show ineffectiveness of constitutional
dimensions. And the parties did not stipulate to the adequacy of the record for this Court to
find ineffective assistance. Therefore, we decline to find ineffective assistance of counsel
at this juncture, but we preserve this issue for post-conviction relief.
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¶38. We conclude that Malik’s arguments are without merit, and we affirm the circuit
court’s judgment.
¶39. AFFIRMED.
LEE, C.J., CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR.
BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.
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