Word v. State

343 So.3d 1055

Christopher WORD a/k/a Christopher Ernest Word, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-00946-COA

Court of Appeals of Mississippi.

August 20, 2019

Rehearing Denied December 3, 2019

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Christopher Word was convicted in the First Judicial District of Panola County for possession of 40 grams but less than 200 grams of MMB-FUBINACA and possession of 200 grams or more of 5-fluoro-ADB with intent. Word was sentenced, as a non-violent habitual offender, to serve sixteen years for the charge in Count I and forty years for the charge in Count II, concurrently, in the custody of the Mississippi Department of Corrections (MDOC). We affirm Word's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. In February 2018, a grand jury indicted Christopher Word for Count I, possession of 40 grams but less than 200 grams of MMB-FUBINACA with intent; Count II, possession of 200 grams or more of 5-fluoro-ADB with intent; and Count III, possession of 100 dosage units but less than 500 dosage units of Buprenorphine and Naloxone without a valid prescription. The indictment also charged Word as being a violent habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015).

¶3. On March 19, 2018, Word pled not guilty to the charges against him, and the court entered an order setting trial for May 14, 2018. The State proceeded to trial on Counts I and II, as scheduled. However, Word was not present at trial. Defense counsel stated, "Your Honor, personally I am ready [for trial]; however, for whatever reason, my client has, which he has the right to do so, has chosen not to exercise his right to be present for the trial today." Defense counsel then requested a continuance.

¶4. The trial judge noted that Word had rejected a plea offer less than a month earlier. The judge then asked defense counsel if he had attempted to contact Word that day, and counsel replied, "No sir. Your Honor, I have not. I did not have any contact with him last week when I attempted to contact him." The judge then denied the request for a continuance. Afterward, defense counsel stated, "Your Honor, I just would state for the record that Mr. Word was told both verbally and in writing on numerous occasions when to be present for trial, if he so desired to be present."¹

¶5. During the State's case-in-chief, Frank Caswell, a probation officer with MDOC, testified that in May 2017, Word was on probation and was being monitored by a Global Positioning System device (GPS). On May 9, 2017, Caswell and Gary Welch, another MDOC employee, went to Word's last known location—near an apartment complex in Sardis, Mississippi—to find Word because he had failed to charge the battery on his GPS.

¶6. When they arrived at Sardis Garden Apartments, Word was sitting outside on an air conditioning unit. Both Casewell and Welch testified that Word was "out of it" and appeared to be under the influence of a substance. They also testified that they noticed a plastic bag with a green leafy substance hanging out of Word's pocket. As a result, Caswell and Welch placed Word in custody and transported him to the DeSoto County Jail. ¶7. Wiley Lowder III resided at Sardis Garden Apartments, and he testified that Word spent a few nights at his apartment. According to Lowder, his friend Ashley and her friend Cody lived with him, and Word was Cody's friend. Lowder testified that while Word was staying at the apartment, Word put two boxes in a closet that was used for storage. Lowder knew that one of the boxes contained a drone because he saw Word flying it in the backyard, but he did not know what was in the other box. Lowder explained, "I figured it was parts for the drone. It wasn't my business, so I didn't open ... it."

¶8. Sergeant James Hawkins with the Sardis Police Department testified that he went to the apartment complex around 7:30 p.m. to follow up on an unrelated issue. During that time, Lowder approached him and told him that Word had left two boxes in his apartment—a black plastic box and a cardboard box. According to Sergeant Hawkins, the plastic box contained a drone and a receipt. The receipt indicated that Christopher Word was the recipient and listed a Hernando, Mississippi address. It also indicated that the drone was purchased for $3,438. According to Sergeant Hawkins, the cardboard box contained a vacuum sealer, shrink wrap, approximately nineteen cell phones, cell phone chargers, a distributor cap,² cigarettes, and what appeared to be marijuana in vacuum sealed bags. In addition, the shipping label attached to the cardboard box listed Christopher Word as the recipient, and it listed the same Hernando, Mississippi address as the receipt for the drone.

¶9. Tyler Mills, a Narcotics Investigator with the Panola County Sheriff's Department, testified that a wallet was also found alongside the boxes. According to Investigator Mills, the wallet contained Word's ID, which listed a Hernando, Mississippi address. Investigator Mills testified that the narcotics evidence was turned over to him, and he submitted it to the Mississippi Forensics Laboratory. The prosecutor asked Investigator Mills, "As a narcotics investigator, when you find a drone with some vacuum sealed [drugs], what are your immediate thoughts?" And Investigator Mills replied, "That [the suspect is] dropping it off somewhere that it probably [doesn't] need to be," such as a correctional facility.

¶10. Finally, Steve Sanders, an employee with the Mississippi Forensics Laboratory, testified that he analyzed four separate submissions for the presence or absence of a controlled substance—one Ziploc bag containing a green leafy substance and four vacuum sealed bags containing a green leafy substance. He testified that Submission 001 (the Ziploc bag) contained 69.65 grams of MMB-FUBINACA. Submission 002, which constituted two bags, contained 110.46 grams of MMB-FUBINACA and 5-fluoro ADB and 111.11 grams of 5-fluoro ADB. Submission 003 contained 222.13 grams of 5-fluoro ADB. And Submission 004 contained 190.80 grams of 5-fluoro ADB.³

¶11. At the conclusion of its case-in-chief, the State reduced the charge in Count I from "possession with intent" to "simple" possession. And at the conclusion of the trial, the jury found Word guilty of the charges in Counts I and II. Subsequently, Word filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. After a hearing, the court denied Word's motion. Then the court entered an order effectively amending the indictment to charge Word as a non-violent habitual offender as opposed to a violent habitual offender. Word was sentenced as a non-violent habitual offender to serve sixteen years for the charge in Count I and forty years for the charge in Count II to be served concurrently in the custody of the MDOC. The court also ordered Word to pay court costs.

¶12. Now Word appeals, claiming the trial court erred by denying his attorney's request for a continuance and proceeding to trial in his absence. Word also claims sufficient evidence did not support the jury's verdict regarding the charge in Count II.

DISCUSSION

I. Trial in Absentia

¶13. This Court reviews a circuit court's decision to try a defendant in absentia under an abuse-of-discretion standard. McDonald v. State , 226 So. 3d 626, 629 (¶6) (Miss. Ct. App. 2017). An accused's right to be present at every stage of his trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 26, of the Mississippi Constitution ; "[h]owever, this right is not absolute and may be waived." Carroll v. State , 196 So. 3d 1054, 1057 (¶11) (Miss. Ct. App. 2016) (citing Wales v. State , 73 So. 3d 1113, 1118 (¶12) (Miss. 2011) ).

¶14. Mississippi Code Annotated section 99-17-9 (Rev. 2015) states:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

In addition to the above statute, the Mississippi Supreme Court and this Court have held that if a defendant takes willful, voluntary, and deliberate actions to avoid trial, he has waived the right to be present at trial and may be tried in absentia. See Jefferson v. State , 807 So. 2d 1222 (¶18) (Miss. 2002) ; see also McDonald , 226 So. 3d at 629 (¶6).

¶15. Word points out that in some cases "where the appellate court has upheld a trial in absentia, the trial court ... granted a continuance before proceeding to trial without the defendant present." Word also points out that "[i]n other cases, the appellate court has affirmed the trial in absentia when the record clearly showed the defendant willfully avoided trial." See Haynes v. State , 208 So. 3d 4, 7 (¶13) (Miss. Ct. App. 2016) ("[W]hen a trial in absentia has been affirmed where continuances have not been granted to the defendant, it has been clear that the defendant willfully avoided trial."). Word claims there was no evidence that he willfully avoided trial and therefore the trial court abused its discretion when it decided to try him in absentia without first granting a continuance. We disagree.

¶16. On March 19, 2018, Word pled not guilty to the charges against him, and the court entered an order setting trial for May 14, 2018. In the meantime, Word rejected a plea offer on April 17, 2018. Word signed the rejection and stated that he wished to proceed to trial.

¶17....