John Ashley Hale v. State of Mississippi , 191 So. 3d 719 ( 2016 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-KA-01778-SCT
JOHN ASHLEY HALE a/k/a JOHN ANTHONY
HALE a/k/a JOHN HALE
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/09/2014
TRIAL JUDGE: HON. ROGER T. CLARK
TRIAL COURT ATTORNEY: ROBERT C. STEWART
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC
DEFENDER
BY: MOLLIE M. McMILLIN
GEORGE T. HOLMES
HUNTER N. AIKENS
JOHN ASHLEY HALE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. John Ashley Hale was convicted of four counts of sale or transfer of a controlled
substance and was sentenced as an habitual offender to serve a total of sixteen years’
imprisonment without the possibility of parole. On appeal, Hale, represented by the Office
of Indigent Appeals, argues that the trial court erred in denying his proffered jury instructions
on the defenses of involuntary intoxication and entrapment. Hale also has filed a pro se
supplemental brief, in which he raises various other issues. Finding no error, we affirm
Hale’s convictions and sentences.
FACTS & PROCEDURAL HISTORY
¶2. At approximately 10:00 p.m. on June 20, 2013, Lieutenant Aldon Helmert with the
Biloxi Police Department and several other investigators executed a search warrant at an
apartment on Eisenhower Drive in Biloxi, Mississippi. The search warrant was unrelated to
the instant case. After executing the warrant, Lieutenant Helmert stepped out onto the
apartment’s balcony to get some fresh air. Lieutenant Helmert and the other investigators
were in plain clothes at this time. While standing on the balcony, Lieutenant Helmert
observed Hale and another man walking down the sidewalk below him. Hale asked
Lieutenant Helmert what he was doing, and Lieutenant Helmert replied that he was
“partying.” Hale asked Lieutenant Helmert if they were drinking alcohol, and Lieutenant
Helmert responded with “something more than that.” Hale then asked Lieutenant Helmert
if he wanted “anything else, ” and Lieutenant Helmert responded in the affirmative. Outside
the apartment, Lieutenant Helmert and Investigator David Elliot met with Hale. Hale told the
investigators that he had some oxycodone pills that he would be willing to sell. Lieutenant
Helmert bought two of these pills from Hale with a prerecorded twenty-dollar bill that he
kept in his wallet.
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¶3. Hale then left the scene, but he returned about fifteen minutes later and made contact
with Lieutenant Helmert. Lieutenant Helmert observed that Hale seemed alert and was aware
of his surroundings. According to Lieutenant Helmert, “[Hale] seemed as though he had been
drinking, but he was not intoxicated.” Investigator Elliot purchased six more oxycodone pills
from Hale with sixty dollars of prerecorded money. Hale also sold Investigator Kenneth
Garner four morphine pills and seven alprazolam pills. Investigator Garner paid for these
pills with a prerecorded one-hundred-dollar bill. Hale then returned to his apartment with
Investigator Garner and gave him two more morphine pills and another alprazolam pill.
Investigator Garner testified that he could tell that Hale had been drinking, but he did not
seem intoxicated. However, Investigator Garner later observed Hale drink an unidentified
liquid from a medicine bottle, and his condition worsened after that point. When Hale and
Investigator Garner returned to the apartment where the other investigators were located,
Hale was arrested.
¶4. After arresting Hale, the investigators recovered the prerecorded money they had
given him and packaged all of the pills to be transported to the Mississippi Crime Laboratory
for testing. Hale then was transferred to the Biloxi Police Department for booking. Sometime
after he arrived at the police department, Hale fell ill and was transported to the hospital
emergency room by ambulance for a possible drug overdose. The specific details of this
incident are unclear, as Hale claims not to remember anything from the night in question and
none of the investigators who testified at trial was with Hale at the police department.
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¶5. On November 18, 2013, Hale was indicted for six counts of sale or transfer of a
controlled substance and one count of possession of a controlled substance with intent to
distribute. Count I charged Hale with selling oxycodone to Lieutenant Helmert. Count II
charged Hale with selling oxycodone to Investigator Elliot. Count III charged Hale with
selling morphine to Investigator Garner. Count IV charged Hale with selling oxycodone to
Wayne Moore. Count V charged Hale with selling morphine to Wayne Moore. Count VI
charged Hale with selling alprazolam to Investigator Garner. Count VII charged Hale with
possession of oxycodone with intent to distribute. The indictment was later amended to
charge Hale as an habitual offender under Section 99-19-81 of the Mississippi Code. Trial
commenced on October 6, 2014. At trial, Lieutenant Helmert, Investigator Elliot, and
Investigator Garner testified regarding their interactions with Hale on the night in question.
John Moran, a forensic scientist with the Mississippi Crime Laboratory, also testified and
confirmed that the pills Hale had sold to the investigators actually were oxycodone,
morphine, and alprazolam. The pills and the prerecorded money used to buy them were
admitted into evidence.
¶6. Hale testified in his own defense at trial. He testified that he is a military veteran and
has numerous health problems, including Post-Traumatic Stress Disorder and chronic back
pain. He has prescriptions for numerous medications, including oxycodone, morphine, and
alprazolam. He testified that he takes each of these medications approximately three times
a day. His wife died in February 2013, so he was living with some friends during the period
in question. On June 20, 2013, he was visiting his friend Jason Phillips at the apartment
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complex on Eisenhower Drive. Hale cooked dinner and sent Phillips to the store to get
something to drink. Phillips returned with some grapefruit juice. Hale confirmed that he had
taken all of his medications a few hours before cooking dinner. He testified that he started
to feel strange after drinking the grapefruit juice, and he claimed to have no memory of
anything from that point until he woke up in the hospital the next day. Hale suggested that
Phillips had drugged his grapefruit juice before giving it to him. He testified that he did not
remember having any interactions with Lieutenant Helmert or the other investigators and
claimed that the first time he had seen them was at trial. On cross-examination, Hale
conceded that his medical records did not include any reference to grapefruit juice. He also
stated that he had been on his medications for a long time but never knew that grapefruit
juice could interact negatively with them.
¶7. At the conclusion of trial, the parties and the trial court discussed jury instructions
outside the presence of the jury. Hale did not object to any of the court’s or the State’s
instructions. Hale offered Instruction D7A, which defined the defense of involuntary
intoxication. Hale’s primary defense was that the grapefuit juice that he drank on the night
in question interacted with his medication and rendered him in a “state of automatism,”
meaning he had no control of his actions. The trial court refused to give this instruction,
finding that it was adequately covered by other instructions defining the term “willfully.”
Hale also offered Instruction D8A, which covered the defense of entrapment. He claimed
that the investigators had enticed him, in his state of automatism, to commit a crime that he
normally would not have committed. The trial court refused this instruction, finding that it
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was not supported by the evidence. After being instructed, the jury returned a verdict finding
Hale guilty of Counts I, II, III, and VI. The trial court sentenced Hale to eight years’
imprisonment without the possibility of parole for each conviction. The sentences in Counts
I and II were ordered to run consecutively to each other, and the sentences in Counts III and
VI were ordered to run concurrently with Counts I and II.
¶8. Hale now appeals to this Court, represented by the Office of Indigent Appeals,
arguing that the trial court erred in refusing Instructions D7A and D8A. Hale also has filed
a pro se supplemental brief, in which he raises several other assignments of error.
STANDARD OF REVIEW
¶9. This Court reviews the grant or denial of jury instructions for abuse of discretion.
Victory v. State, 83 So. 3d 370, 373 (Miss. 2012). “A defendant is entitled to have jury
instructions given which present his theory of the case; however, this entitlement is limited
in that the court may refuse an instruction which incorrectly states the law, is covered fairly
elsewhere in the instructions, or is without foundation in the evidence.” Newell v. State, 49
So. 3d 66, 73 (Miss. 2010) (quoting Hearn v. State, 3 So. 3d 722, 738 (Miss. 2008)). “The
jury instructions actually given must be read as a whole. When so read, if the instructions
fairly announce the law of the case and create no injustice, no reversible error will be found.”
Rubenstein v. State, 941 So. 2d 735, 785 (Miss. 2006).
DISCUSSION
I. Whether the trial court erred in denying Instruction D7A on
involuntary intoxication.
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¶10. Hale was charged with violating Section 41-29-139(a)(1) of the Mississippi Code,
which provides that “it is unlawful for any person knowingly or intentionally . . . [t]o sell,
barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter,
transfer, manufacture, distribute or dispense, a controlled substance.” Miss. Code Ann. § 41-
29-139(a)(1) (Rev. 2013). Hale’s primary defense at trial was that an unforeseen interaction
between his prescription medication and the grapefruit juice he drank on the night in question
caused him to become involuntarily intoxicated, incapable of controlling his own actions.
Instruction D7A set forth Hale’s defense of involuntary intoxication and provided:
A person is voluntarily intoxicated by voluntarily using any intoxicating drug,
drink or other substance knowing that it could cause an intoxicating effect or
voluntarily assuming the risk that it could cause intoxication. A person,
however, can be involuntarily intoxicated if they experience an unforseen or
unintended reaction to a legally prescribed medication(s) taken as medically
prescribed.
If you find that when the defendant is not intoxicated, he is capable of
knowing right from wrong, and that the defendant voluntarily became
intoxicated so that he did not know or understand the act of transfer of a
controlled substance, then the defendant is responsible for the crime of transfer
of a controlled substance, and his voluntary intoxication is not a defense to the
crime. If you find, however, that the defendant was involuntarily intoxicated
due to an unforeseen or unintended reaction to a legally prescribed
medication(s) taken as medically prescribed and was incapable of knowing
right from wrong so that he did not know or understand the act of transfer of
a controlled substance, then the defendant is not responsible for the crime of
transfer of a controlled substance.
The trial court denied this instruction, finding that it lacked an evidentiary basis, because
Hale had not presented any evidence of the side effects of his medication or any possible
negative interactions between grapefruit juice and his medication. The trial court also found
that Hale’s theory of defense was covered by other instructions requiring the jury to find that
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Hale willfully had sold the pills to the investigators and defining the term “willfully.” On
appeal, Hale argues that the trial court precluded him from presenting his theory of the case
by denying Instruction D-7A.1
¶11. An essential element of the crime with which Hale was charged was that he had
knowledge that he was selling or transferring a controlled substance and that he intended to
do so. See Applegate v. State, 301 So. 2d 853, 855 (Miss. 1974). Hale essentially argues that
he did not have knowledge of his actions because he was in a state of intoxication at the time.
The law in Mississippi is clear that voluntary intoxication is not a defense to a specific-intent
crime. McDaniel v. State, 356 So. 2d 1151, 1161 (Miss. 1978). The rule has been stated by
this Court as follows:
If a defendant, when sober, is capable of distinguishing between right and
wrong, and the defendant voluntarily deprives himself of the ability to
distinguish between right and wrong by reason of becoming intoxicated and
commits an offense while in that condition, he is criminally responsible for
such acts.
Id. Thus, if Hale voluntarily became intoxicated prior to selling pills to the investigators, his
intoxication would not serve as a defense. However, this Court has not addressed whether
Mississippi law recognizes the defense of involuntary intoxication that Hale asserts.
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Hale’s appellate counsel failed to cite any authority in support of this argument. The
only cases cited in counsel’s brief discuss the standard of review for jury instructions but
have no relation to the substantive argument Hale asserts. Generally, a party’s failure to cite
any authority in support of an argument precludes this Court from addressing that argument
on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) (citations omitted). However, we
will address this issue because Hale supported his argument with authority in his pro se
brief.
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¶12. Hale refers to his defense as “involuntary intoxication,” but his theory of the case can
more appropriately be labeled “automatism,” which has been defined as an involuntary
condition “in which the patient may perform simple or complex actions in a more or less
skilled or uncoordinated fashion without having full awareness of what he is doing.”
Fortune v. State, 110 So. 3d 831, 837 (Miss. Ct. App. 2013) (quoting Wayne R. LaFave,
Substantive Criminal Law § 9.4b at 33 (2d ed. 2003)). The courts that have considered this
issue generally have held that automatism can be asserted as a defense to a criminal charge.
See McLain v. State, 678 N.E.2d 104, 106 (Ind. 1997) (citing Eunice A. Eichelberger,
Annotation, Automatism or Unconsciousness as Defense to Criminal Charge, 27 A.L.R. 4th
1067, § 3(a) (1984)). A successful automatism defense negates the requisite intent for a
criminal offense, but it also eliminates the voluntariness of the criminal act. State v. Hinkle,
489 S.E.2d 257, 264 (W. Va. 1996).
¶13. The Court of Appeals recently has considered a similar argument to Hale’s and
provided some persuasive analysis on the issue of automatism. Fortune v. State, 110 So. 3d
831 (Miss. Ct. App. 2013). In Fortune, the defendant was charged with fondling an eleven-
year-old relative. Id. at 833. At trial, he testified that he had taken a prescribed muscle
relaxant and an Ambien on the night of the offense and did not remember what had
happened. Id. He testified, “I’d like to say that I didn’t [fondle the victim], but being on my
medication and not knowing the things that happened, I can’t say if I did or not. But me as
a person, if I wasn’t on [medication], I kn[o]w for a fact I would not touch her.” Id. He also
admitted into evidence the “medication guide” regarding Ambien’s possible side-effects,
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which include incidents in which the person “may get up out of bed while not being fully
awake and do an activity that [he] do[es] not know [he is] doing.” Id. at 834. At the
conclusion of trial, the defendant offered a jury instruction on involuntary intoxication that
required the jury to find the defendant not guilty if a reasonable doubt existed as to whether
the defendant was “conscious” when he committed the crime. Id. at 834-35. The trial court
denied this instruction but granted another defense instruction defining the term “willfully”
as follows:
The word[] “willfully,” as that term has been used from time to time in these
instructions, means that the act was committed voluntarily and purposefully,
with the specific intent to do something the law forbids, that is to say, with [a]
bad purpose either to disobey or disregard the law.
Id. at 835. The jury ultimately found the defendant guilty of the charged offense. Id.
¶14. On appeal, the defendant argued that the trial court had erred in denying his jury
instruction on the defense of “legal unconsciousness.” Id. at 836. The Court of Appeals
noted that this issue was one of first impression in Mississippi. Id. The Court of Appeals
then reviewed caselaw from various other jurisdictions, noting that the majority of courts
viewed automatism as a defense to criminal intent. Id. Ultimately, the Court of Appeals
found that the trial court had instructed the jury properly on the issue of the requisite mens
rea and allowed the defendant to present his argument that any criminal act committed was
caused by an uncontrollable side-effect of his prescription medication. Id. at 838. The jury
instructions also required the jury to find that the defendant had acted willfully, and the
defendant was afforded an opportunity to negate this element with evidence of Ambien’s
side-effects. Id. Accordingly, the Court of Appeals held that the jury instructions fairly
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announced the applicable law of the case, finding that “[i]f the jury believed that Fortune was
unconscious due to the effects of Ambien when committing the act of fondling, the jury
would have found Fortune ‘not guilty.’” Id.
¶15. In the instant case, we find that Hale failed to provide a sufficient evidentiary basis
to support his proffered instruction and that his theory of the case was covered by other
instructions. Like the defendant in Fortune, Hale argues that his criminal act was committed
while he was in an involuntary state of intoxication, incapable of controlling his own actions.
However, unlike the defendant in Fortune, Hale offered no evidence indicating that his
medication, or some interaction between grapefruit juice and his medication, could cause the
sort of behavior in which he engaged on the night in question. Nevertheless, the trial court
in the instant case properly instructed the jury on every element of the charged offense and
also gave the above-quoted instruction from Fortune defining the word “willfully.” See
Moore v. State, 676 So. 2d 244, 246 (Miss. 1996) (quoting Ousley v. State, 122 So. 731, 732
(Miss. 1929) (“This Court has stated that ‘it is inconceivable that an act willfully done is not
also knowingly done.’ Stated differently, ‘willfully’ means ‘knowingly.’ Moreover,
‘wil[l]ful’ means nothing more than doing an act intentionally.”). Just as the Court of
Appeals explained in Fortune, the instructions given at Hale’s trial adequately informed the
jury of the applicable law, and Hale was able to present his defense to the jury. Accordingly,
we find Hale’s argument to be without merit.
II. Whether the trial court erred in denying Hale’s proffered
entrapment instruction.
¶16. At the conclusion of trial, Hale offered Instruction D8A, which covered the defense
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of entrapment. He claimed that a factual dispute existed as to whether Lieutenant Helmert
had induced him into selling the pills by making initial contact with him outside the
apartment. The trial court denied this instruction, finding that it lacked an evidentiary basis.
Because Hale claimed he did not remember what happened on the night in question, the trial
court had to rely on the testimony of the investigators, who all stated that Hale had initiated
both the initial conversation and the subject of selling pills. The investigators testified that
they “enticed” Hale to come back to the apartment later that night only so they could arrest
him safely. Based on this evidence, the trial court found that Hale had not presented
sufficient evidence to support an entrapment instruction. On appeal, Hale argues that the trial
court’s denial of his entrapment instruction was in error.
¶17. “Entrapment has been defined as ‘the act of inducing or leading a person to commit
a crime not originally contemplated by him, for the purpose of trapping him for the offense.”
Hopson v. State, 625 So. 2d 395, 399 (Miss. 1993) (quoting Phillips v. State, 493 So. 2d 350,
354 (Miss. 1986) (internal citations omitted)). Entrapment is an affirmative defense which
must be proved by the defendant, and “[t]he burden of proof does not shift to the State to
show the predisposition for committing the crime until the defendant has made out a prima
facie case of entrapment.” Bush v. State, 585 So. 2d 1262, 1264 (Miss. 1991). Once the
defendant makes out a prima facie case of entrapment, he is entitled to have the issue of
entrapment submitted to the jury on proper instructions. King v. State, 530 So. 2d 1356,
1358 (Miss. 1988). “Whether the entrapment defense – or any other issue of fact – should be
submitted to the jury ultimately turns on whether there is in the record credible evidence
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supporting it.” Id. at 1359. Stated another way, an entrapment instruction must be given
where the defendant presents such evidence which, “if believed by the jury, could result in
resolution of the issue in favor of the party requesting the instruction.” Phillips, 493 So. 2d
at 353.
¶18. “[A] defendant is not entrapped and enjoys no protection from prosecution when he
is already predisposed to commit the crime and when law enforcement officials merely
furnish him the occasion or opportunity for doing so.” Tanner v. State, 566 So. 2d 1246,
1248 (Miss. 1990). Moreover, a defendant is not induced to commit an offense if the
evidence shows that he was “ready and willing” to commit the crime when the opportunity
presented itself. Moore v. State, 534 So. 2d 557, 559 (Miss. 1988). This Court generally has
found that evidence of “importuning” by law-enforcement officers generally will serve as
sufficient evidence of inducement to commit a crime. See King v. State, 530 So. 2d 1356,
1357 (Miss. 1988) (confidential informant “had been bugging [the defendant] for months to
sell her some marijuana.”); McCollum v. State, 757 So. 2d 982, 986 (Miss. 2000)
(confidential informant followed defendant and repeatedly begged for drugs).
¶19. We find that Hale failed to present sufficient evidence of government inducement.
Indeed, because Hale claimed that he did not remember selling pills to the investigators, he
offered no evidence at all on this issue. The testimony of the investigators, on the other hand,
provides ample evidence that Hale acted of his own volition and was not induced into
committing a crime. Lieutenant Helmert testified that Hale initially approached him and
asked him what he was doing at the apartment complex. Hale also initiated the criminal act
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by asking if he could offer “anything else” besides alcohol to Lieutenant Helmert. Hale then
retrieved the pills by himself and returned to the investigators to complete the transaction.
He even led some of the investigators to another apartment to retrieve more pills and told one
investigator that he could come back and purchase more pills from him in the future. As the
State correctly explained at trial, the investigators “enticed” Hale to return to the first
apartment only after the offenses were complete so they could arrest him. Even viewing this
evidence in the light most favorable to the defendant, we find that no rational jury could find
that Hale was induced by law-enforcement officers to commit a crime. Phillips, 493 So. 2d
at 353. Accordingly, the trial court did not err in denying Hale’s entrapment instruction.
III. Whether the State or the trial court failed to respond to Hale’s pro
se pretrial motions.
¶20. Prior to trial, Hale filed a pro se motion which included, among other things, various
discovery requests. This motion was identical in many respects to a discovery motion his
attorneys had filed approximately seven months prior. The motion was filed with the trial
court on July 23, 2014, but it appears Hale’s attorney did not receive a copy until the day
before trial during a motions hearing. At the hearing, Hale’s attorney reviewed the motion
before the trial court and stated that the defense had received the entire case file from the
State. The trial court responded, “I would certainly grant that motion,” referring to Hale’s
pro se motion, and the hearing concluded. In his pro se appellate brief, Hale claims that the
trial court granted his pro se motion, and he argues that the State withheld exculpatory
evidence from him in violation of the trial court’s ruling.
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¶21. We find this argument to be without merit. As previously stated, Hale’s attorney filed
a discovery motion with essentially identical requests for production around seven months
before Hale filed his pro se motion. On the day before trial, Hale’s counsel affirmed that
they had received all the evidence in the case and were ready to proceed. The trial court did
not grant Hale’s motion, and the record before this Court does not support Hale’s argument
that the defense did not receive the evidence it requested.
IV. Whether the trial court erred in failing to appoint an expert
witness for Hale.
¶22. In his pro se brief, Hale argues that he was denied a fair trial because he did not have
the benefit of an expert witness to assist him in explaining his defense of involuntary
intoxication. He alleges that the trial court erred in failing to appoint an expert for him,
though he never made a request for a court-appointed expert.
¶23. However, the record indicates that Hale actually retained an expert but failed to call
him as a witness at trial. Hale’s attorneys had notified the State that they intended to call Dr.
Alva Dillon, a gastroenterologist, as an expert witness, but they failed to disclose Dr. Dillon’s
expertise and areas of testimony in a timely manner. Prior to trial, the State moved to
exclude Dr. Dillon’s testimony, but the trial court reserved ruling on the issue. The defense
ultimately did not call Dr. Dillon at trial.
¶24. As no request was made for a court-appointed expert witness, we find no error in the
trial court failing to appoint one. See Green v. State, 631 So. 2d 167, 171 (Miss. 1994)
(citing Hansen v. State, 592 So. 2d 114, 125 (Miss. 1991)) (“Concrete reasons for requiring
an expert must be provided by the accused.”).
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V. Whether Hale’s indictment was defective.
¶25. As previously discussed, Hale’s indictment charged him with six counts of selling or
transferring a controlled substance and one count of possessing a controlled substance with
intent to distribute. Prior to trial, Hale filed a pro se motion to dismiss, which included
challenges to Counts V, VI, and VII of the indictment. Hale claimed that the allegations in
Counts V and VI represented one transaction and could not be charged as separate crimes.
He also argued that the allegation in Count VII did not match the allegations in his arrest
warrant or charging affidavit. However, Hale did not present any arguments concerning his
indictment to the trial court until after he had been convicted. During the hearing on his post-
trial motions, Hale raised additional challenges to the indictment, arguing that the indictment
failed to specify whether he was charged with a “sale” or “transfer” of a controlled substance.
He also argued that the State erred in using a multicount indictment. On appeal, Hale argues
that the State’s burden of proof is different for sales of controlled substances than for
transfers of controlled substances, and the indictment impermissibly lowered the burden of
proof.
¶26. Hale has failed to cite any authority supporting his argument. Accordingly, this issue
is procedurally barred. Rubenstein v. State, 941 So. 2d 735, 780 (Miss. 2006) (citing Bell
v. State, 879 So. 2d 423, 434 (Miss. 2004)). Procedural bar notwithstanding, this argument
is without merit. Section 41-29-139 prohibits the sale or transfer of a controlled substance,
and this Court has held that “a transfer is any act by which the holder of an object delivers
it to another with the intent of passing whatever rights he has in the latter.” Meek v. State,
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806 So. 2d 236, 240 (Miss. 2001). While the State clearly proved that Hale actually sold pills
to the investigators, “[t]he intent of the deliver and transfer of narcotics statute is ‘to thwart
the exchange or transfer of the substance whether accompanied by consideration or not.’”
Id. (citing Wilkins v. State, 273 So. 2d 177 (Miss. 1973)) (emphasis added). Accordingly,
Hale’s indictment did not lessen the State’s burden of proof in this case.
VI. Whether Hale received ineffective assistance of counsel.
¶27. Hale contends that his trial attorneys rendered ineffective assistance by failing to
secure certain witnesses, including an expert witness, for trial and in failing to disclose those
witnesses to the State. A convicted defendant must meet a two-pronged test to prove his trial
counsel was unconstitutionally ineffective. See Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “First, the defendant must show that
counsel’s performance was deficient; . . . second, the defendant must show that the deficient
performance prejudiced the defense.” Id. This Court generally does not review claims of
ineffective assistance unless the issues raised are “ based on facts fully apparent from the
record.” Miss. R. App. P. 22(b). We find that the record is insufficient to review Hale’s
claims and therefore they are not appropriate for review on direct appeal. Thus, we dismiss
Hale’s ineffectiveness claim without prejudice to his ability to raise it in a properly filed
petition for post-conviction relief. See Archer v. State, 986 So. 2d 951, 956-57 (Miss. 2008).
VII. Whether Hale’s conviction was the product of vindictive
prosecution.
¶28. In his final assignment of error, Hale raises various allegations of corruption within
the Harrison County law enforcement system and the court system and claims that his
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conviction were a punishment for his opposition to such corruption. However, none of Hale’s
allegations was pursued in the trial court, and as a result, none appears in the record. “This
Court has long held that it cannot consider that which is not in the record.” Stone v. State,
94 So. 3d 1078, 1082 (Miss. 2012) (citing State v. Cummings, 203 Miss. 583, 591, 35 So.
2d 636, 639 (Miss. 1984)).
CONCLUSION
¶29. For the foregoing reasons, we affirm Hale’s convictions and sentences.
¶30. COUNT I: CONVICTION OF TRANSFER OF CONTROLLED SUBSTANCE
AND SENTENCE OF EIGHT (8) YEARS, AS A HABITUAL OFFENDER, IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT II: CONVICTION OF TRANSFER OF CONTROLLED
SUBSTANCE AND SENTENCE OF EIGHT (8) YEARS, AS A HABITUAL
OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL FOR A TOTAL OF
SIXTEEN (16) YEARS TO SERVE. COUNT III: CONVICTION OF TRANSFER OF
CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT (8) YEARS, AS A
HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III
SHALL RUN CONCURRENTLY WITH THE SENTENCES IN COUNT I AND
COUNT II. COUNT VI: CONVICTION OF TRANSFER OF CONTROLLED
SUBSTANCE AND SENTENCE OF EIGHT (8) YEARS, AS A HABITUAL
OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE IN COUNT VI SHALL RUN
CONCURRENTLY WITH THE SENTENCES IN COUNT I, COUNT II AND COUNT
III, ALL FOR A TOTAL OF SIXTEEN (16) YEARS TO SERVE. THE APPELLANT
SHALL NOT BE ELIGIBLE FOR PAROLE OR PROBATION. APPELLANT
SHALL RECEIVE CREDIT FOR ANY AND ALL TIME SERVED AS TO THESE
CHARGES.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING,
COLEMAN AND MAXWELL, JJ., CONCUR.
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