Courtney McGahee v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-00442-COA

COURTNEY MCGAHEE A/K/A COURTNEY APPELLANT
MCGHEE A/K/A COURTNEY MCGEHEE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/25/2014
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: W. S. STUCKEY JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A
CONTROLLED SUBSTANCE IN A
CORRECTIONAL FACILITY AND
SENTENCED AS A HABITUAL OFFENDER
TO SEVEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE
POSSIBILITY OF PAROLE OR PROBATION
DISPOSITION: AFFIRMED - 08/25/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

JAMES, J., FOR THE COURT:

¶1. On March 18, 2014, Courtney McGahee was convicted of possession of controlled

substance in a correctional facility in violation of Mississippi Code Annotated section 47-5-

198 (Rev. 2011). This appeal proceeds from McGahee’s judgment of conviction.
FACTS AND PROCEDURAL HISTORY

¶2. On January 4, 2013, Rekessha White, a correctional-facility officer, and Chip Gravlee,

chief of security, were on duty at the Leflore County Adult Detention Center. Officer White

and Chief Gravelee smelled tobacco smoke coming from the “B Pod.” The officers entered

the zone and determined the smoke was coming from cell B-4. As the officers arrived at cell

B-4, four inmates were attempting to leave the cell. The officers conducted a “shakedown”

by thoroughly searching everything in the cell. Only inmate Tavarison Kinds was assigned

to cell B-4. During the search, Kinds remained inside the cell, two inmates came out of the

cell, and McGahee stood outside the cell by the door. McGahee was assigned to cell B-18

at the time. During the search, Officer White discovered a ziplock bag containing tobacco.

Officer White also discovered a sock containing a plastic bag with a green leafy substance

inside, which was determined to be marijuana. The ziplock bag containing tobacco and a

sock containing marijuana were found under the lower bunk of Kinds’ cell. When the

marijuana was discovered, McGahee stated that it belonged to him in the presence of Officer

White, Chief Gravlee, and inmate Kinds. The four inmates that came out of cell B-4 were

strip-searched, but nothing was found on their person. Although the facility policy prohibits

inmates from being in other inmates’ cells, that rule is not enforced.

¶3. On January 8, 2013, McGahee signed a written statement, asserting that he threw the

sock containing marijuana under Kinds’s bunk in cell B-4. The statement also admitted that

the tobacco and marijuana were his and that he was not threatened or promised anything by

confessing. At the conclusion of the State’s case-in-chief, McGahee moved for a directed

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verdict, which the trial court denied. The defense did not call any witnesses, but McGahee

testified in his own defense. McGahee testified to making and signing the written statement.

McGahee also admitted to orally stating that the marijuana was his; however, McGahee

denied making the verbal admission to Officer White while standing outside cell B-4 when

the marijuana was first discovered. Despite his confessions, McGahee testified that he lied

and was merely trying to help someone out because he believed he would never be charged.

McGahee testified that he and Kinds were placed in a cell while the investigation was

ongoing, and Kinds asked him to say that the marijuana was McGahee’s because the charges

would be thrown out since the marijuana was not found on his person.

¶4. The jury returned a verdict finding McGahee guilty of possession of a controlled

substance in a correctional facility. Prior to trial, on December 17, 2013, the trial court

entered an order amending the indictment to charge McGahee as a habitual offender under

Mississippi Code Annotated section 99-19-81 (Supp. 2014). On March 19, 2014, McGahee

was sentenced as a habitual offender to seven years in the custody of the Mississippi

Department of Corrections without the possibility of parole or probation. On March 24,

2014, McGahee filed a motion for a new trial or judgment notwithstanding the verdict. On

March 25, 2014, the trial court denied the motion.

¶5. On April 3, 2014, the trial court entered an order finding McGahee to be indigent and

allowing him to appeal in forma pauperis. On the same day, McGahee timely filed his notice

of appeal. On October 8, 2014, McGahee’s counsel filed a brief in accordance with Lindsey

v. State, 939 So. 2d 743 (Miss. 2005), stating that he had determined that after scouring the

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record thoroughly there were no arguable issues supporting McGahee’s appeal. McGahee

was given an opportunity to file a supplemental pro se brief to address any issues he desired

to raise on appeal. McGahee did not file a brief. Finding no error, we affirm.

DISCUSSION

¶6. McGahee’s appellate counsel filed a brief in accordance with Lindsey, 939 So. 2d 743.

Lindsey established the procedure to be followed “when appellate counsel represents an

indigent criminal defendant and does not believe his or her client's case presents any arguable

issues on appeal.” Id. at 748 (¶18). Specifically, the Lindsey court stated:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-(4), (7); see also [Smith v.] Robbins, 528 U.S.
[259,] 280-81 [(2000)] (stating that “counsel's summary of the case's
procedural and factual history, with citations of the record, both ensures that
a trained legal eye has searched the record for arguable issues and assists the
reviewing court in its own evaluation of the case.”).

(2) As a part of the brief filed in compliance with Rule 28, counsel must certify
that there are no arguable issues supporting the client's appeal, and he or she
has reached this conclusion after scouring the record thoroughly, specifically
examining: (a) the reason for the arrest and the circumstances surrounding
arrest; (b) any possible violations of the client's right to counsel; (c) the entire
trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial
misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into
evidence or not; and (h) possible misapplication of the law in sentencing.

(3) Counsel must then send a copy of the appellate brief to the defendant,
inform the client that counsel could find no arguable issues in the record, and
advise the client of his or her right to file a pro se brief.

(4) Should the defendant then raise any arguable issue or should the appellate
court discover any arguable issue in its review of the record, the court must,
if circumstances warrant, require appellate counsel to submit supplemental
briefing on the issue, regardless of the probability of the defendant's success
on appeal.

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(5) Once briefing is complete, the appellate court must consider the case on its
merits and render a decision.

Id. (internal citations and footnotes omitted).

¶7. On October 8, 2014, McGahee’s appellate counsel filed a brief in accordance with

Lindsey, stating that he was of the opinion “that there are no arguable issues supporting

[McGahee’s] appeal, and that he had reached this conclusion after scouring the record

throughly[.]” McGahee’s appellate counsel specifically examined: (a) the reason for the

arrest and the circumstances surrounding the arrest; (b) any possible violations of McGahee’s

right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible

prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into

evidence or not; and (h) possible misapplication of the law in sentencing. Appellate counsel

forwarded a copy of his brief to McGahee informing him that counsel could find no arguable

issues in the record. McGahee was also advised that he had the right to file a pro se

supplemental brief. We find that McGahee’s counsel complied with the procedure set forth

in Lindsey. McGahee’s counsel also requested in his brief that this Court allow thirty days

of additional time for McGahee to file a supplemental pro se brief. This Court, on its own

motion, entered an order on October 16, 2014, acknowledging that McGahee was sent a copy

of the brief filed by his counsel and giving McGahee thirty days to file his own brief to

address any issues he desired to raise on appeal. McGahee did not file a pro se brief. After

reviewing the record, we find no reversible error and no issue that would require additional

briefing by counsel. Therefore, we affirm McGahee’s conviction and sentence.

¶8. THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT OF

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CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE IN A
CORRECTIONAL FACILITY AND SENTENCE AS A HABITUAL OFFENDER OF
SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE
COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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