Mohamed v. State

323 So.3d 532

Mohamed MOHAMED a/k/a Mohamed Anagi Mohamed, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01273-COA

Court of Appeals of Mississippi.

April 20, 2021

Rehearing Denied August 3, 2021

ATTORNEY FOR APPELLANT: TERRIS CATON HARRIS, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

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

CARLTON, P.J., FOR THE COURT:

¶1. A Washington County Circuit Court jury convicted Mohamed Mohamed of drug trafficking in violation of Mississippi Code Annotated section 41-29-139 (Supp. 2014). The circuit court sentenced Mohamed to serve thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years to serve and twenty years suspended upon Mohamed's successful completion of five years of supervised probation.

¶2. Mohamed now appeals his conviction and sentence, asserting the following assignments of error: (1) the circuit court abused its discretion by excluding the testimony of Mohamed's expert witness; (2) the circuit court erred in allowing witnesses to refer to khat as a Schedule I controlled substance; (3) the circuit court erred in limiting Mohamed's cross-examination of the State's forensic scientist; (4) the circuit court denied Mohamed his right to present his theory of defense; (5) the circuit court violated Mohamed's Sixth Amendment right to cross-examine a witness for the State; (6) the State committed a Brady¹ violation; and (7) cumulative error requires reversal of Mohamed's conviction and sentence.

¶3. After our review, we find no error. We therefore affirm Mohamed's conviction and sentence.

FACTS

¶4. In 2015, the Mississippi Attorney General's (AG) Office received an anonymous tip about the sale of a substance known as khat at Hakim's Mini Mart in Greenville, Mississippi. Khat is a plant that may contain the stimulant cathinone.² Pursuant to Mississippi Code Annotated section 41-29-113(f)(3) (Supp. 2020), cathinone is a Schedule I controlled substance.

¶5. As a result of this tip, the AG's Office facilitated a controlled buy of khat from Hakim's Mini Mart using a confidential informant. Investigator Lee McDivitt of the AG's Office testified that he provided the confidential informant with $1,100 in "official undercover funds" and directed the confidential informant to use the funds to purchase khat from Mohamed, the owner of Hakim's Mini Mart. Investigator McDivitt testified that prior to the controlled buy, the confidential informant's person and vehicle were searched.

¶6. When the confidential informant returned to the agreed upon location after the controlled buy, investigators again searched the informant's person and vehicle. Investigator McDivitt testified that the confidential informant returned from the controlled buy at Hakim's Mini Mart with "numerous bags of a green leafy substance" believed to be khat. Investigator McDivitt observed that the substance was "wrapped up in individual zip lock bags for ... individual sale."

¶7. Investigator McDivitt thereafter obtained a search warrant for Hakim's Mini Mart. Investigator McDivitt testified that he and other law enforcement officers searched the store. During the search, Investigator McDivitt utilized information obtained from the confidential informant and located additional bags of khat in a concealed location in the back of the store. Investigator McDivitt questioned Mohamed about the khat. According to Investigator McDivitt, Mohamed never denied ownership of the khat.

¶8. Mohamed informed Investigator McDivitt that he had "a small amount" of khat at his home. Mohamed signed a consent form to allow Investigator McDivitt to search his house. Investigator McDivitt and other law enforcement officers performed a search of Mohamed's home and discovered additional bags of khat in a bedroom closet, as well as a large digital scale, zip lock sandwich bags, and a bowl. Investigator McDivitt testified that the digital scale, bags, and bowl were located a few feet from the khat. Investigator McDivitt also testified that these items are "indicative of the sale of drugs and trafficking in narcotics." Investigator McDivitt specifically testified that the presence of the scale in close proximity to the khat was an indication of weighing and measuring drugs with the intent to sell them. Investigator McDivitt then secured the substance recovered from the store and Mohamed's home and sent it to the Mississippi Forensics Laboratory for testing.

¶9. Diamonisha Jackson, a forensic scientist with the Mississippi Forensics Laboratory, testified as an expert in the field of drug analysis. Jackson testified that she analyzed the leafy green substance in the bags recovered from Mohamed's store and home. Jackson confirmed that the substance contained cathinone. Jackson explained that the total weight of the substance that she analyzed, weighed, and confirmed contained cathinone amounted to 4,507.96 grams. Jackson also confirmed that cathinone is a Schedule I controlled substance.

¶10. After the AG's Office received the results from the Mississippi Forensics Laboratory confirming that the substance recovered from Mohamed's store contained cathinone, Mohamed was indicted for drug trafficking. Mohamed's indictment charged him with "unlawfully, willfully, knowingly, and feloniously possess[ing] with the intent to sell more than 30 grams of [c]athinone, a Schedule I, controlled substance, in violation of [s]ection 41-29-139."

¶11. A trial was held May 29-30, 2019. At trial, the jury heard testimony from Investigator McDivitt, Jackson, and Mohamed. The circuit court excluded the testimony from Mohamed's expert witness after finding that the testimony was irrelevant and also not disclosed to the State in a timely or adequate manner.

¶12. After the State rested, defense counsel moved for a judgment of acquittal, arguing that the State failed to prove that Mohamed had intent to sell an illegal drug. The circuit court denied Mohamed's motion, stating, "I think that the State has put on evidence of the quantity and that there is evidence from which a jury could infer intent to transfer." Defense counsel later moved for a mistrial on the basis that "there's been repeated testimony from the stand from the State's witnesses regarding the khat plant being a controlled substance when it's not listed as a controlled substance." Defense counsel asserted that this "obviously confused the jury and it's highly prejudicial" to Mohamed. The circuit court overruled the motion, explaining that "I think that there is plenty of evidence that all of the green leafy substance that was presented in court contains the controlled substance [cathinone]."

¶13. Mohamed testified at trial that he had been "chewing" khat all of his life. Mohamed testified several times that he did not know that khat contained cathinone and that he did not intend to sell the cathinone. Mohamed stated that if he had known that khat contained cathinone, he "would not mess with it." Regarding the events leading up to his arrest, Mohamed testified that his friend contacted him and wanted to purchase some khat. Mohamed admitted that he weighed the khat using a scale and packaged the khat into individual bags that weighed the same amount. However, Mohamed maintained that he did not sell khat and that he would have given the khat to his friend free of charge. Mohamed testified that after his friend came to the store and picked up the khat, his friend "dropped" $1,100 and left the store.

¶14. The jury ultimately returned a verdict finding Mohamed guilty of drug trafficking, and the circuit court sentenced Mohamed to thirty years in the custody of the MDOC, with ten years to serve and twenty years suspended upon Mohamed's successful completion of five years of supervised probation. The circuit court also ordered Mohamed to pay restitution, fees, and court costs.

¶15. Mohamed filed a motion for a new trial. The circuit court did not enter an order disposing of this motion; however, the motion was deemed denied under Mississippi Rule of Criminal Procedure 25.3. Mohamed now appeals.

DISCUSSION

I. Exclusion of Expert Witness

¶16. Mohamed argues that the circuit court erred in excluding his expert witness in the field of forensic toxicology, Dr. Mahmoud Elsohly. Mohamed asserts that the trial court improperly determined that Dr. Elsohly's testimony was not relevant. Mohamed also argues that the circuit court's exclusion of Dr. Elsohly as the result of a discovery violation by Mohamed "was far beyond any appropriate remedy and was an abuse of discretion." Mohamed claims that the circuit court's exclusion of his expert witness violated his fundamental right to present a witness in his favor to meet and rebut the testimony of the State's expert on the critical issue of a presence of cathinone.

¶17. We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Webb v. Braswell , 930 So. 2d 387, 396-97 (¶15) (Miss. 2006) ; Triplett v. River Region Med. Corp ., 50 So. 3d 1032, 1039 (¶30) (Miss. Ct. App. 2010). "We will not reverse the trial court's decision to admit expert testimony unless it was arbitrary and clearly erroneous, amounting to an abuse of discretion." Garner ex rel. Garner v. State , 247 So. 3d 345, 350 (¶14) (Miss. Ct. App. 2018) (internal quotation marks omitted).

¶18. Pursuant to Mississippi Rule of Evidence 702, "expert testimony must be relevant and reliable." Id . at (¶15) (citing Willie v. State , 204 So. 3d 1268, 1273 (¶12) (Miss. 2016) ).³ Expert testimony "is relevant when it helps the jury understand the evidence or resolve a fact in issue." Id . Mississippi Rule of Evidence 401 further provides that evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and if "the fact is of consequence in determining the case." M.R.E. 401. The circuit court acts as the gatekeeper and "must make a preliminary assessment...