IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-00562-SCT BRODRICK AKEEM MOODY a/k/a BRODRICK MOODY

v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 05/16/2014 TRIAL JUDGE: HON. MARCUS D. GORDON TRIAL COURT ATTORNEYS: JACK THAMES CHRISTOPHER COLLINS COURT FROM W HICH APPEALED: LEAKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDMUND J. PHILLIPS, JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 10/27/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., COLEMAN AND MAX W ELL, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. Brodrick Moody

was f ound guilty

of possession of

a cell phone while conf

ined in a correctional f

acility and was s entenced to serve ten y ears, to run consecutively t o the sentence he was serving. Moody asserts the trial c ourt erred i n instructing the jury as to t he a pplicable law and burden o f proof

. W e f i nd that the trial c o urt erred in instructing the jury and reverse Moody ’s c onviction, vacate his sent e n c e , a n d r em a n d f o r a new trial consistent with this opinion.
STATEMENT OF THE FACTS AND PROCEEDINGS BELOW¶2. Moody was indicted by a L e a k e C o u n t y g r a nd jury f or “willf ully and f eloniously possess[ ing] a cell phone while c onf ined in a correctional f

acility

. . . in violation of Section 47-5-193, Miss. Code Ann. (1972).” At trial, Tom m y Duck, an o f f icer f or the Leake County Correctional Facility (“Facility ”) and the Sherif f ’s Of f ice, testif ied t hat on October 2, 2013, he was i nvolved in conducting a “shakedown” by w hich prisoners are strip-searched,

com m on areas are searched, and pr i s o n e r s ’ p ersonal item s and areas are searched. Duck searched inm ate Moody in a com m on area o f the p rison. W hile Moody was d ressing, Duck observed Moody reach down to pick up som e thing of f the f loor. Duck a sked M oody to hand h i m what Moody had picked up of f the f loor. Moody handed him a cell phone. D u c k t h e n turned the phone over to Lieutenant Michael Beasley , the of f icer in charge of the shakedown. Duck f i lled out an incident report and a r ules violation report. Duck testif ied that he f

ound

no o ther cell phones or c e l l phone a ccessories during his search of other p risoners while conducting the shakedown. ¶3. Beasley , Assistant Chief of Security f or the Facility , testif

ied that he w as observing the of f icers during the shakedown strip-search o f inm ates at t he Facility on October 2, 2013. Beasley testif

ied that h e was given a phone f o und by Duck af

t er Duck searched inm ate Moody

. Beasley then placed the phone in an evidence bag and placed the bag in the evidence locker located in the captain’s of f ice. ¶4. I n v e s t i g a

t o r J u s t in Sim s , em

ploy ed by the Leake County Sherif f ’s Of f ice, t estif ied t h a t he retrieved the cell phone f rom the Facility on October 14, 2013. The cell p hone was then

2placed in an evidence locker at the Sherif f ’s Of f ice and later was m oved to a vault. F ollowing Sim s’s testim ony , the State rested. ¶5. Moody m oved f

o r a d irected verdict, but this m otion was overruled by the t rial court. Moody elected n ot to testif y , and the def

ense rested without putting on any witnesses. The jury returned a verdict which f ound Moody “guilty a s charged.” Moody was sentenced to a
term of ten y ears in the custody of the Mississippi D epartm e n t o f C o r rections, with his sentence to run consecutively to the sentence he already was serving. ¶6. Moody f

iled a m otion f

or a new t rial, which was denied. Moody w as granted leave to
f ile an appeal in f

or ma pauperis. Moody raises only one issue on appeal– whether the trial court erred in granting jury instruction S-4. 1
STANDARD OF REVIEW ¶7. “Jury instructions are generally within the discretion of the t rial court and the settled standard of review is abuse of discretion.” Bailey v. State , 78 So. 3d 3 08, 315 (Miss. 2012).
T h i s C o u r t reviews jury instructions as a w hole. Boyd v. State , 47 So. 3d 121, 123 (Miss. 2010). W h en those instructions, “taken as a whole f airly –although not perf

ectly –announce the applicable prim a ry

rules of law . . . no reversible error will be f ound.” Id. at 124.
ANALYSIS ¶8. Moody

asserts that the trial judge erred when he instructed the jury as f ollows:
A person w ho is charged with the crim e of possession o f a c e l l phone in a correctional f

acility is pr e s u med to be in constructive possession o f a cell

1 T h is in stru ctio n w as a rev isio n o f S -3 a n d w a s h a n d w ritten o n th e b o t to m o f j u ry in stru ctio n S -3

. 3phone that is f ound u nless that presum p t i o n i s overcom e by com petent evidence. Moody argues that the jury instruction denied him “due process and a f air trial because it violated the requirem ent of proof bey ond a reasonable doubt f o r conviction and violated the
presum ption of innocence.” ¶9. The United States Suprem e Court has held em phatically that presum

ptive instructions violate the Due Process Clause in that presum ptive instructions shif

t the burden of proof to the def endant on an essential elem ent of the c harged of f ense (i n t h i s c a s e , possession).
Sandstrom v. M

ontana , 4 42 U.S. 510, 521, 9 9 S. Ct. 2450, 6 1 L

. Ed. 2d 39 (1979); Francis

v. Franklin , 471 U.S. 307, 325, 105 S. Ct. 1 965, 85 L. Ed. 2d 344 (1985). Additionally , the Suprem e Court f

o und that “general instr u c t i o n s as to the prosecutor’s burden and the def endant’s presum

ption of innocence do not dissipate the error. . . .” Francis , 471 U.S. at
319-20. This Court sim i larly has held that presum ptive instructions are im

proper. In Tran v. State , 681 So. 2d 514, 516 ( Mis s . 1 9 9 6), the jury was given the f ollowing instruction:

“ D e liberate design m ay be presumed f rom the u nlawf

ul a nd d eliberate use o f a deadl y weapon.” (Em

phasis added.) This Court held that the instruction was given in error because “it relieved the prosecution of its [ burden of

] persuasion.” Id. at 518. In William s v. State , 111 So. 3d 620 (Miss. 2013), this Court stated that: “pres u m e ”

. . . i s def

i ned as “to assum e to be true without proof t o the contrary

. ” W ebster’s II New Coll e g e D i c t i onary 875 (2001).

. . . A s a presum ption is accept e d a s true without proof t o the contrary , it f ollows t hat the burden was shif

ted to the def

endant to provide proof

.

4William s , 111 So. 3d at 625. Likewise, in the present case, the burden w a s shif ted im properly to Moody to provide proof that he was not in constructive possession of the cell phone. ¶10. In c ases discussing p o ssession of other ty p es of contraband, t his Court h as held that: [ c]onstructive possession has been the subject of f r e q u ent interpretation by this Court. Actual phy sical possession n eed n ot be shown f or c o n viction i f the contraband is i n the constructive possession of the accused. If the substance is s u b j e c t t o t h e def

endant’s dom inion or control, it is said t o be w ithin

. . . his constructive possession.
Miller v. State , 634 So. 2d 1 2 7, 129 (Miss. 1994). This j ury was wrongly i nstructed that possession w as presum ed. The presum ptive nature of the instruction is c ontrary to the law of our State. ¶11. Of ten, less grievou s e r r o r s a r e c u r e d b y o t h e r i nstructions. However, no other instruction could cure S-4. Moody argues, and this C ourt agrees, that the instruction relieved the State of its burden of

proving an elem ent of the of f ense bey ond a reasonable doubt and
presum ed Moody ’s guilt. Theref ore, we f ind that the tri a l c o u r

t erred in granting the jury instruction. ¶12. As the f

ocus of our inquiry

is on an instruction, we would be rem iss, in light of this

case being rem anded f

o r a new t rial, i f we d id n ot note that a n instruction of f e r ed by Moody and g r a n t e d by the trial court should not h ave been given. Moody provided t he f ollowing instruction as D-8:
T h e Def endant, Brodrick Akeem Moody , has b een charged with the of f en s e of Possession of

a Cell Phone in a Correctional Facility

. Bef ore y ou can return a verdict of guilty as charged, the State of Mississippi m ust have proven to y ou bey ond a reasonable doubt f rom the evidence that:

51. The Def endant did on October 2, 2013
2. take, attempt to take, or assis t i n t a k ing a n u nauthorized electronic device, cell phone or any of its components or accessories to include, but not limited to, a black cell phone 3. on the property of

the Leake County

[ C]orrectional Facility

. If the State o f Mississippi has f ailed to p rove a n y o n e or m ore of t he above listed elem e nts bey ond a reasonable doubt, then y ou shall f i n d Brodrick Akeem Moody , “Not Guilty .” (Em phasis added.) This instruction is not supported by the record evidence. Moody was indicted under Section 47-5-193, which reads that it is unlawf ul f or a prisoner to:
possess , f

urnish, attem

pt t o f urnish, or a s s i s t in f

urnishing to any of

f ender conf ined i n this s tate any weapon, deadly weapon, unauth o r i z ed electronic device, contraband item , or cell phone or any of its com ponents or a ccessories to include, but not l im i ted t o, Subscriber Inf orm ation Module ( SIM) cards or chargers. Miss. Code Ann. § 4 7-5-193 (Rev. 2015) (em phasis added). Section 47-5-193 f urther reads that: [ i]t is unlawf

ul f or any p e rson or of

f ender to take, attempt to take, or assist in taking any weapon, deadly weapon, u nauthorized electronic device, contraband item , cell phone or any of i ts com ponents or accessories t o i nclude, but not lim ited to, Subscriber Inf orm ation Module (SIM) cards o r c h argers on property within the s tate belonging to t he departm ent, a county , a m u nicipality , or other entity

that is occupied or used by of f enders, except a s authorized by law. Id. (em phasis added). Moody was indicted and convicted of p ossess i n g a c e ll p hone in a correctional f

acility

. H owever, Moody ’ s I n struction D-8 instructed the jury as t o persons taking cell phones into correctional f acilities. Transporting contraband a n d p o s s essing

6contraband are distinctly dif f erent. On rema n d , a l l instructions should properly track the language of

the applicable statute and have an evidentiary basis.
CONCLUSION ¶13. For the reasons s tated above, we f ind t hat the trial court erred in instructing the jury ,

even when viewing the instructions as a whole. Instruction S-4 im properly shif

t ed the burden of proving Moody was not in constructive possession o f the cell phone to M oody

. W e reverse Moody ’s conviction, vacate his sentence, and rem and this m atter to the Leake County Circuit Court f or a new trial consistent with this opinion. ¶14. REVERSED AND REMANDED. WALLER, C.J., DICKINSON, P.J., LA M A R , K I T C H E N S , K

I N G , C O L EMAN, MAX W ELL AND BEAM, JJ., CONCUR.

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