Allen v. State

375 So.3d 1202

Carlos Dominique ALLEN a/k/a Carlos Allen, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-KA-00331-COA

Court of Appeals of Mississippi.

06/13/2023

Rehearing Denied December 5, 2023

MADISON COUNTY CIRCUIT COURT, HON. DEWEY KEY ARTHUR, JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA RODU ROSENBLATT

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Carlos Allen was convicted by a Madison County Circuit Court jury for selling more than ten dosage units but less than twenty dosage units of fentanyl (Count I), trafficking controlled substances while in the possession of a firearm (Count II), possessing more than two dosage units but less than ten dosage units of hydrocodone with acetaminophen while in the possession of a firearm (Count III), and possessing more than two dosage units but less than ten dosage units of amphetamine while in the possession of a firearm (Count IV). The circuit court sentenced Allen as a subsequent drug offender and a non-violent habitual offender to serve twenty years for Count I, eighty years for Count II, twelve years for Count III, and twelve years for Count IV in the custody of the Mississippi Department of Corrections. The circuit court ordered that the sentences imposed in Counts I and II run consecutively to each other and that the sentences imposed in Counts III and IV run concurrently with each other and with the sentences imposed in Counts I and II.

¶2. On appeal, Allen claims that the circuit court erred by admitting into evidence Exhibits S-29, S-30, and S-31, which were text messages referencing alleged drug transactions between him and three individuals: Rachel Brown, "Big Homie," and an unknown contact. Finding no error, we affirm Allen’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶3. On February 22, 2021, Officer Lee Sanders with the Madison Police Department was dispatched to a parking lot where he found an unconscious man who was later identified as Austin Elliott inside a vehicle. Officer Sanders noticed several blue pills labeled "M30" in the cup holder, and medical personnel determined that Elliott had overdosed. After administering Narcan, Elliott was revived and transported to St. Dominic’s Hospital where he was treated and released, but he died the next day.

¶4. Officer Sanders obtained permission to search Elliott’s cell phone and identified two suspects—Carlos Allen and Nicholas Attkisson. According to Officer Sanders, it appeared that Allen had supplied Elliott with the pills and that Attkisson had planned to obtain two of the pills from Elliott.

¶5. The next day, law enforcement went to Attkisson’s place of employment and took him into custody. Attkisson agreed to be a confidential informant because he believed it was the right thing to do and would avoid being charged with conspiracy. Attkisson had known Allen for approximately two years and had engaged in approximately 200 to 300 prior drug transactions with him.¹ So Attkisson texted Allen and arranged a purchase later that day. Investigator Stephen Tucker provided Attkisson with $300 in cash, a recording device, and a vehicle. During the transaction, which occurred in Madison, Mississippi, Attkisson purchased eleven dosage units of what was believed to be fentanyl for $200. He also gave Allen $50 for gas and $50 for two pills that he had purchased from him the day before.

¶6. Once the transaction was complete, Investigator Tucker obtained the eleven pills from Attkisson, which were submitted to the Mississippi Forensics Laboratory for testing. Meanwhile, law enforcement conducted a traffic stop on Allen and recovered the $300 as well as two cell phones.² During a search of Allen’s vehicle, law enforcement also recovered a Smith & Wesson firearm and various narcotics, which were submitted to the Mississippi Forensics Laboratory for testing as well.

¶7. According to Archie Nichols with the state crime laboratory, the pills that Allen sold to Attkisson during the controlled transaction contained fentanyl. Additionally, Nichols determined that the following substances were recovered from Allen’s vehicle after the controlled transaction: one hundred forty-six dosage units containing fentanyl, seventeen dosage units containing hydrocodone and acetaminophen, and four dosage units containing amphetamine.

¶8. During Allen’s trial, to rebut his entrapment defense, the State sought to admit into evidence text messages from Allen’s cell phone showing evidence of prior drag transactions with multiple individuals. After considering defense counsel’s opening statement and cross-examinations, the circuit court held that the text messages were relevant to prove intent and that they were "highly probative." Additionally, the circuit court held that the text messages were admissible as an admission against interest.

¶9. After the circuit court’s ruling, Investigator Ryan Wigley with the Madison Police Department testified that he performed an extraction on Allen’s cell phone. Investigator Wigley testified that Elliott had texted Allen on February 21, 2021, and said that he would "come get more blues" after he was paid. The next day, which was the same day that Elliott was found unconscious in his vehicle, Elliott texted Allen again and said, "I got 260 on me too bro. 60 for the quarter and 200 for the blues[.]" Allen responded, "Ok." The text messages between Allen and Elliott were admitted into evidence as Exhibit S-26.

¶10. Then the State sought to admit into evidence text messages between Allen and three other individuals: Rachel Brown, Big Homie, and an unknown contact. Defense counsel objected again and argued that the text messages were irrelevant, more prejudicial than probative, and contained inadmissible hearsay. Defense counsel further argued that the text messages could have been from "bots." The circuit court held that the text messages were relevant and noted that their probative value had already been considered. The circuit court also held that the text messages were not hearsay because they were admissions by a party opponent. Ultimately, defense counsel’s objection was overruled, and the text messages were admitted into evidence. We will discuss portions of these text message threads as they are relevant to the issues raised on appeal.

¶11. Text messages between Allen and Rachel Brown were admitted into evidence as Exhibit S-29. On February 22, 2021, Brown texted, "You said you had some peach 20 coming. Any news on that[?]" Allen responded, "I got em … [a]nd 40 mg Vyvanse." Brown asked, "How many on the peach and how much[?]" Allen responded, "I got at least 20 and like 8[.]" Brown indicated that she wanted them, and Allen said, "Okay … I’ll swing down on ya in a [l]il bit[.]"

¶12. Additionally, text messages between Allen and a contact saved in his cell phone as Big Homie were admitted into evidence as Exhibit S-30. On February 4, 2021, Big Homie texted, "Need some more[.]" Allen responded, "You don’t," which was followed by "Do[.]" Big Homie texted, "3 ready," and then, "Just drop me something off to keep me going[.]" Allen responded, "Say less give me a sec[.]"

¶13. Finally, text messages between Allen and an unknown contact were admitted into evidence as Exhibit S-31. The unknown contact texted, "[D]rop a pin," and then, "[H]aley said she need a 100 … and I need a 40[.]" Allen responded, "Come to the crib," and the unknown contact texted, "[B]et[.]" Investigator Wigley testified that based on his training and experience as a law enforcement officer, he believed that Allen and the three individuals were "talking about selling pills."

¶14. After considering the evidence presented at trial, the jury found Allen guilty of selling more than ten dosage units but less than twenty dosage units of fentanyl, trafficking controlled substances while in the possession of a firearm, possessing more than two dosage units but less than ten dosage units of hydrocodone with acetaminophen while in the possession of a firearm, and possessing more than two dosage units but less than ten dosage units of amphetamine while in the possession of a firearm. Now Allen appeals.

DISCUSSION

¶15. In his appellate brief, Allen claims that the circuit court erred by admitting into evidence Exhibits S-29, S-30, and S-31, which were text messages between him and three individuals: Rachel Brown, Big Homie, and an unknown contact. He seemingly argues that (1) the text messages were not authenticated at trial, (2) they were irrelevant and more prejudicial than probative, and (3) they contained inadmissible hearsay.³

[1–3] ¶16. This Court reviews a circuit court’s admission or exclusion of evidence for an abuse of discretion. Tillis v. State, 176 So. 3d 37, 45 (¶15) (Miss. Ct. App. 2014). "For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Jackson v. State, 245 So. 3d 433, 439 (¶32) (Miss. 2018) (quoting Pham v. State, 716 So. 2d 1100, 1102 (¶12) (Miss. 1998)). We will find that "[t]he admission or exclusion of evidence ‘constitutes reversible error only where a party can show prejudice or harm.’ " Williams v. State, 54 So. 3d 212, 216 (¶14) (Miss. 2011) (citing Ross v. State, 954 So. 2d 968, 1001 (¶67) (Miss. 2007)).

I. Authentication

¶17. Allen claims that the text messages between him and Rachel Brown, Big Homie, and the unknown contact were not authenticated at trial. The State asserts that because Allen did not object to authentication of the text messages at trial, he may not raise the issue on appeal. Our supreme court has held that "an objection on one ground waives remaining grounds for purposes of appeal and that the failure to raise an issue in the trial court requires [the appellate court] to impose a procedural bar on appeal …. " Ambrose v. State, 254...