IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-01514-SCT DOUGLAS NEELY

a/k/a DOUGLAS NEELY , JR.

v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 10/19/2017 TRIAL JUDGE: HON. LEE J. HOW ARD TRIAL COURT ATTORNEYS: MARC DARREN AMOS MARK G. W ILLIAMSON LINDSAY KIRKLEY CLEMONS COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: SCOTT W INSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/07/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J. KITCHENS, PRESIDING JUSTICE, FOR THE COURT: ¶1. Af ter a jury trial, Douglas Neely was convicted of r esisting arrest and f elony f leeing

a law enf orcem ent of

f icer. The C ircuit Court o f Oktibbeha County sentenced N eely , f or f elony f leeing a law enf

o r c e m e n t of

f i cer, to f ive y ears as an habitual o f f ender and, f

or resisting arrest, to six m onths, t o run consecutive t o t h e f i v e y ear sentence. Neely appeals. His appellate counsel has f iled a brief

in accordance with Lindsey v. State , 939 So. 2d 743 (Miss. 2005), certif

y i ng to t his Court that, af ter exa mi n i n g t h e r ecord, no arguable issuesexist. Neely ’s appellate counsel requested and was granted additional tim e f or Neely to f

ile

a p ro se b rief raising a ny issues he desired to raise on appeal. N eely never f i led a pro se brief

. W e af f i rm Neely ’s conviction and sentence.
FACTS ¶2. In the early m orning hours of Septem ber 16, 2014, Deputy Sherif f Josiah Buckner was patrolling near Club Rock in O ktibbeha C ounty when he o bserved a vehicle pulling out of the Club Rock p a rking lot. T he vehicle, which had n o headlights on, f irst p roceeded southbound in the northbound lane, then swerved f rom lane to lane. W hen Deputy Buckner turned on his blue lights to i nitiate a stop, the vehicle’s driver turned on his vehicle’s headlights. Deputy

Buckner, in unif

orm , approached the driver’s side and noticed a strong odor o f intoxicating beverage em a n a t i n g f rom the vehicle a nd i ts driver. Deputy Buckner noticed that the d

river, later identif

ied as Douglas Neely , appeared extrem ely nervous. Upon checking Neely ’s d

r iver’s license through dispatch, Deputy B uckner learned that the license had been suspended. Because Neely seem e d so nervous and because Deputy Buckner suspected that he h ad been driving under t he inf luence, he radioed Deputy Sherif f Tim Cook
f or backup and asked N eely to step ou t o f t h e c ar. Instead o f f ollowing Deputy B uckner’s instruction, Neely grabbed t h e s t e e r i n g wheel, slam m ed d own the accelerator, and sped away . ¶3. Deputy Buckner pursued Neely f o r a p p r o x i ma t ely o ne m ile, achieving speeds of eighty m iles per hour in a f o rty

- m i le-per-hour residential zone. Neely turned a c orner and his vehicle got stuck i n m

ud. Deputy Buckner pulled up behind N eely ’s vehicle, exited his patrol

car, and approached the driver’s side. T he of f icer o bserved that the driver’s s ide window still

2was rolled down. He drew his taser and told Neely to step out of the v ehicle or h e would be

tased. Beca u s e N e e ly showed no sign of com pliance, Deputy Buckner f ired the taser. But because o n e o f t h e taser’s two p robes f ailed to m ake contact with Neely , the t aser was inef f ective to incapacitate him

. Deputy Buckner f o llowed up by attem

pt i n g a dry stun to Neely ’ s s h o ulder area. A s he reached into the vehicle and touched the taser to Neely ’s shoulder area f

or the dry s tun, Neely beg a n ma k i n g a growling noise and bit Deputy Buckner’s hand. Deputy Buckner testif ied that he stunned Neely two or t hree tim es, and each tim e Neely

bit his hand. ¶4. H a v i n g f

a i l e d t o subdue N eely , Deputy Buckner attem pted to pull him out of t h e vehicle, and Neely grabbed his arm . A t that point, Neely ’s car got traction, and he sped of f , dragging Deputy B uckner along t he road until he was f lung f rom t he vehicle. Then, he and Deputy Cook, who had arrived when Deputy Buckner had been try ing to p ull Neely out of the car, ran in an attem

pt t o catch up with Neely ’s v ehicle. They heard a crash and discovered that Neely had d

riven of f an em bankm ent. Neely had f

led t h e s c e n e on f

oot, but he turned him self in the next day

. ¶5. Neely gave a statem ent to Deputy Sherif f Mahy ar Netadj in which h e adm itted having used p o wder cocaine and alcohol bef ore going to C lub Rock. Neely a l so adm itted that he had been aware that he had been pulled over by a police of f icer when h e decided to f

l ee to avoid

arrest. Neely s aid he f

led, wrecked h is car, a n d r a n i n t o the woods. N eely denied any recollection of h is s econd encounter with Deputy B uckner, in which he had bit t e n Deputy Buckner and dragged him outside the vehicle.

3¶6. Neely was tried on one count of sim ple assault of a l aw enf

orcem ent of

f icer and one
count o f f e lony f leeing a law enf

o rcem ent of

f icer, as an habitual of

f ender. On t he charge of

s i mp l e assault of a law enf orcem ent of

f icer, t he trial court gave a lesser-included of f e n s e instruction o n resisting arrest, a m isdem eanor. The jury c onvicted Neely of resisting arrest and f elony f leeing a law enf

orcem ent of

f icer. The trial court f

o u n d b e y o n d a r easonable doubt that Neely was an habitual of f ender under Mississippi Code Section 99-19-81 (Rev. 2015) and sentenced him to the m a xim um of f ive y ears f

or f elony f leeing and s i x m onths f

or resisting arrest.
DISCUSSION ¶7. T h i s C o urt has adopted a procedure t hat governs c ases i n w h i c h a n i n d i g e n t def endant’s appellate counsel has subm itted a brief declaring that the c lient’s case presents

no arguable issues f

or appeal. Lindsey , 939 So. 2d at 7 48. Initially , “counsel m ust f ile and

serve a b rief in com

pliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7).”
Id. In the brief

, counsel m

ust certif y t h at there are n o a rguable issues s upporting the client’s appeal, and h e o r she h as reached this conclusion af ter scourin g t h e r ecord thoroughly , specif

i cally exam ining: (a) the reason f or the arrest and the circum stances surrounding arrest; ( b) any possible violations of the client’s right to counsel; (c) the e ntire trial transcript; (d) all rulings of t he trial court; (e) possible prosecutorial m isconduct; (f ) all jury instructions; ( g) all e xhibits, whether adm itted into evidence or not; and (h) p ossible m isapplication of the law in sentencing.
Id. Counsel m

ust s end a copy o f the brief to the def endant, inf

orm the d ef

e n dant that counsel could f ind no arguable issues i n the record, and advise t he client that he or she has the right

to f ile a pro se brief

. Id. If the pro se brief r aises an arguable i ssue, or if t his Court f inds an

4a rguable issue in its i ndependent review of the record, then “the [ C]ourt mu s t , i f

circum stances warrant, require appellate counsel to subm it s upplem ental brief ing on the issue, regardless of the probability of the def endant’s success on appeal.” I d . at 748-49. ¶8. Neely ’s appellate counsel subm itted a brief in c o m p liance w ith Lindsey . Appellate counsel certif

ied that, af

ter scouring the record thoroughly , he had f ound no arguable issues
f or a p peal. Appellate counsel sent a copy of the brief to Neely , inf orm ing him t hat he had the right to f i le a p ro se brief

. This Court g ranted additional tim e f o r Neely t o f

ile a pro se brief

, but h e d id not do so. Af

ter caref ul review of the record, t he Court h a s f ound no arguable issues f or appeal, and no supplem ental brief ing is required. Theref

ore, we af f irm

. ¶9. AFFIRMED. RANDOLPH, C.J., KING, P.J., COLE M A N , MAX WELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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