                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2011-KA-00684-SCT

DONALD MITCHELL a/k/a DONALD K.
MITCHELL

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            09/15/2010
TRIAL JUDGE:                                 HON. WILLIAM A. GOWAN, JR.
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                             BY: GEORGE T. HOLMES
                                             PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                           ROBERT SHULER SMITH
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 REVERSED AND REMANDED - 01/31/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




         EN BANC.

         RANDOLPH, JUSTICE, FOR THE COURT:

¶1.      Before the Court is a direct appeal of the conviction of Donald Mitchell for possession

of cocaine with intent to distribute and his habitual-offender sentence. Finding that the trial

court erred by admitting evidence of Mitchell’s prior convictions for possession of marijuana

and cocaine, we reverse Mitchell’s conviction, vacate his sentence, and remand for a new

trial.
                       FACTS AND PROCEDURAL HISTORY

¶2.    Detective Kevin Dear of the Jackson Police Department (“JPD”) received an

anonymous call that a person known as “Black” was selling crack cocaine from a brick

apartment complex on Capitol Street. Detective Dear identified Donald Mitchell as “Black,”

conducted a preliminary investigation, and obtained a search warrant for the apartment.

¶3.    JPD Sergeant Richard McGahey and other officers executed the search warrant. Upon

entering the apartment, McGahey saw Mitchell run by and followed him into the bathroom,

where he saw Mitchell shake a bag upside down, emptying its contents into the toilet.

Mitchell then flushed the toilet, but McGahey was able to grab some of the substance before

it all was flushed away. The substance later was sent to JPD’s laboratory and determined to

be cocaine.

¶4.    The officers searched Mitchell and found approximately $1,000 in cash and a small

digital scale that appeared to have cocaine residue on it. They found another scale on the

kitchen counter and additional stashes of cocaine around the apartment.

¶5.    Mitchell was indicted as a habitual offender for possession of cocaine with intent to

sell, based on previous convictions for possession of cocaine, possession of marijuana, and

manslaughter.

¶6.    Mitchell filed a motion in limine to exclude evidence of his prior convictions for

possession of controlled substances1 from being admitted at trial. The trial court held a


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         Mitchell’s prior convictions were for possession of controlled substances – they were
not, as the State’s brief asserts, for the “sale of cocaine and marijuana.”

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hearing, at which time the State asserted that it planned to offer evidence of the prior

possession convictions to “show that he understands the drug game . . . that’s just a prior bad

act to show his involvement with drugs . . . not to show that he did this, but just to show that

he understands, ‘No, it’s not a mistake.’” The trial judge denied the motion in limine,

paraphrasing language from Givens v. State, 967 So. 2d 1 (Miss. 2007), as follows:

       When considering other crime evidence concerning drug activity and drugs
       being found in the possession of the defendant, as well as the fact that the
       police was familiar with the defendant because of the prior matters, probative
       value of the relevant evidence was not substantially outweighed by danger of
       unfair prejudice. And, thus, the trial judge did [not] abuse his discretion in
       allowing it.

¶7.    During the testimony of its first witness, the State presented evidence of Mitchell’s

prior possession convictions. Mitchell did not testify. The jury returned a verdict of guilty

of possession of crack cocaine with intent to distribute, and Mitchell received a life sentence

as a habitual offender.

                                           ISSUES

¶8.    Mitchell raises numerous issues, only one of which we address today, as it is

dispositive:

       Whether the trial court committed reversible error by admitting evidence of
       Mitchell’s prior convictions for possession of marijuana and cocaine.

                                       DISCUSSION

       I. Standard of review




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¶9.      We apply an abuse-of-discretion standard when reviewing a trial judge’s decision

regarding the admission or exclusion of evidence. Hargett v. State, 62 So. 3d 950 (Miss.

2011).

         II. The trial court committed reversible error by admitting evidence of
         Mitchell’s prior convictions for possession of controlled substances.

¶10.     Mississippi Rule of Evidence 404(b) governs the admissibility of evidence of other

crimes, wrongs, or acts. Under Rule 404(b), “evidence of a crime other than the one for

which the accused is being tried generally will not be admissible.” Hargett v. State, 62 So.

3d 950, 953 (Miss. 2011) (citations omitted). However, “[e]vidence of a prior offense is

admissible if offered, not to show the accused’s criminal tendencies, but to prove identity,

knowledge, intent, common criminal scheme or plan, or absence of mistake” – none of which

was contested in the case sub judice. White v. State, 842 So. 2d 565, 573 (Miss. 2003)

(citation omitted). “The reason for the rule is to prevent the State from raising the inference

that the accused has committed other crimes and is therefore likely to be guilty of the offense

charged.” Id. (citations omitted).

¶11.     We find that the evidence of Mitchell’s prior possession convictions satisfies none of

the other purposes listed in the nonexclusive provisions of Rule 404(b). The State replied to

Mitchell’s motion to exclude this evidence that it would offer the evidence to prove absence

of mistake – an assertion never advanced by Mitchell, nor otherwise placed at issue by any

witness. As mistake was not at issue, absence of mistake is a non sequitur. As we have

recognized, “[t]he theory of the case can’t be we know he’s a drug dealer . . . unless he


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alleges a mistake, there is no reason to prove absence of mistake.” Hargett, 62 So. 3d at 953.

As we previously have provided:

       [v]igorous prosecution does not require, and fairness does not permit, that one
       charged with an offense in this area be loaded with prejudicial irrelevancies.
       The commendable zeal of the District Attorney to convict those he believes
       guilty must never be allowed to blind either him or the courts to the necessity
       of affording every man a fair trial.

Hargett, 62 So. 3d at 954 (quoting Sumrall v. State, 272 So. 2d 917, 919 (Miss. 1973)).

¶12.   Having concluded that no other purpose would allow admission of the evidence of

Mitchell’s prior convictions, we are left with the general rule that character evidence is not

admissible to prove conduct on a particular occasion. Miss. R. Evid. 404. To allow a party

to attempt to prove that a person acted in accordance with a certain character trait “is to

prejudice the person, to render him in the eyes of jurors liable, not because of what he did or

did not do in the instant case, but because of what he has done or failed to do in the past.”

Miss. R. Evid. 404 cmt.

¶13.   The trial court’s reliance on Givens v. State, 967 So. 2d 1 (Miss. 2007), was

misplaced. At Givens’s trial, evidence of his prior bad acts was deemed admissible to reveal

the complete picture of the crime of which he was charged. Police officers had responded

to an anonymous call reporting drug activity at a certain location. Givens, 967 So. 2d at 3.

Upon arriving at the location, an officer spoke with Givens and another individual, Cooper,

and searched the two men, finding two “nickel bags” of marijuana on Givens. Id. An officer

gave Givens a ticket for possession of marijuana. Id. The officers also found a .22 pistol that

Cooper claimed belonged to him under a nearby porch. Id. About fifteen minutes later, a

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police officer driving by the location found Cooper’s body on the side of the road, but

Givens was gone. Id. At Givens’s trial for Cooper’s murder, the trial court admitted

testimony that police officers had responded to an anonymous report of drug activity and had

found marijuana in Givens’s possession. Id. at 8. This Court found that the testimony “was

proper Rule 404(b) evidence because it told the jury ‘the whole story’ as to why . . . police

officers and a . . . deputy sheriff went to the scene, where they happened upon Givens.” Id.

at 9. In contrast, Mitchell’s possession convictions occurred years – not minutes – before the

events for which Mitchell was on trial; prior possession convictions were not necessary to

present the jury “the whole story” of how Mitchell came to be charged with possession with

intent to distribute on the date alleged in the indictment.

                                      CONCLUSION

¶14.   We conclude that the trial court abused its discretion by allowing the admission of

evidence of Mitchell’s prior possession convictions. As Mitchell was prejudiced by this

inadmissible evidence, we reverse Mitchell’s conviction and vacate his sentence. The case

is remanded to the Hinds County Circuit Court for a new trial consistent with this opinion.

¶15.   REVERSED AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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