IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 2001-CA-00304-COA

FRANKLIN RASHAD BODDIE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF TRIAL COURT

JUDGMENT:

01/18/2001

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: J. RONALD PARRISH

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS JR.

DISTRICT ATTORNEY: DUNN O. LAMPTON

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

TRIAL COURT DISPOSITION: THE PETITION FOR POST-CONVICTION RELIEF IS

DENIED.

DISPOSITION: AFFIRMED-10/15/2002

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

BEFORE KING, P.J., LEE, AND IRVING, JJ.

IRVING, J., FOR THE COURT:

¶1. Franklin Rashad Boddie was charged in a two-count indictment with the unlawful transfer of cocaine

and aggravated assault. Pursuant to a plea agreement, Boddie pleaded guilty to the cocaine charge, and the

aggravated assault count was nolle prossed. The trial judge sentenced him to twenty years with ten years

suspended and ten years of post-release supervision. He was also fined and ordered to pay certain costs.

¶2. Boddie became displeased with the disposition of his case and filed a motion for post- conviction

collateral relief alleging that his conviction and sentence were unconstitutional and that the trial court did not

have jurisdiction to impose sentence. We reject Boddie's arguments and affirm the trial court's denial of

Boddie's post-conviction relief motion.

FACTS

¶3. A Pike County grand jury charged Boddie with unlawfully transferring cocaine to Dezzie Ree Peters and

assaulting Peters with a handgun. Allegedly, the assault occurred because of Peters's failure to pay for the
cocaine.

¶4. The cocaine was never chemically analyzed, and although the reason for this failure is not entirely clear

in the record, it appears that the contraband, for whatever reason, was not available. Also, the record does

not shed any light on how the State became aware of the transfer since it does not appear that Peters was

working undercover for the State.

¶5. Boddie filed a motion to quash the indictment. No testimony was heard on the motion, but Boddie and

the State submitted an agreed statement of proof which is not contained in the record. The trial court denied

the motion, and in the introductory paragraph of its ruling on the motion, the trial court said:

[T]he Court after hearing arguments of counsel and testimony, has determined that it is necessary and

proper that this Court make an adjudication on evidentiary matters in order to resolve the pending

disputes herein. The issue for the Court to decide is: can the State sustain a conviction without

possession of the controlled substance?

In a latter paragraph of the ruling the trial court stated:

The defendant is entitled to have the case against him proved beyond a reasonable doubt. The

establishment of the controlled substance, i.e., cocaine, is usually done by the testimony of a chemist

who has tested the substance and provided the scientific background for his testimony. The opinion of

a drug user that the substance is cocaine is just not sufficient. The drug user may be a Rule 701

expert. She may have been able to touch, perceive, taste and use the controlled substance. She may

be able to describe the effects of the substance. However, this is not sufficient in this Court's opinion.

To allow prosecution for the transfer of cocaine indictment when the Court has made this ruling,

would be improper. The parties have stipulated as to what the proof would be and therefore, this

Court feels comfortable in granting what is in effect a directed verdict.

Notwithstanding the trial court's assertion that it would be improper to allow the prosecution for the transfer

of the cocaine, the court, as we have already mentioned, denied Boddie's motion to quash the indictment.

¶6. After failing to obtain a dismissal of the indictment, apparently Boddie and the State engaged in plea

negotiations. Boddie agreed to enter a plea of guilty to the transfer of cocaine charge in exchange for a

prosecutorial recommendation of the exact sentence that the judge gave him, plus a dismissal of two

unrelated charges and a nolle prosequi of the assault charge.

¶7. Prior to pleading guilty, Boddie signed a written document entitled, "Know Your Rights Before

Pleading." In this document, Boddie stated that he was pleading guilty because he was guilty and for no

other reason. He checked "yes" to the following question: "Are you satisfied that the State can prove

beyond a reasonable doubt that you are guilty of the crime or crimes to which you are pleading guilty?" He

also checked "yes" to this question: "Have you reviewed the State's discovery material with your attorney?"

Further, Boddie acknowledged that he knew he did not have to prove anything, that the burden of proof

was entirely upon the State to prove him guilty by credible evidence and beyond a reasonable doubt, and

that if the State failed to meet its burden, the jury would be under a duty to find him not guilty.

¶8. At the commencement of the plea hearing, the trial judge made the following statement and inquiry:

BY THE COURT: All right. Cause Number 99-092, State versus Frankly [sic] Rashad Boddie, there
are two counts in this Indictment [sic]; one is aggravated assault and the other one is unlawful transfer

of cocaine. There was a ruling made regarding evidence on this case. Does everyone agree that it was

only an evidentiary ruling and that the Indictment [sic] is still standing?

BY MR. SMITH: The State does, Your Honor.

BY MR. MILLER: Defense also. Is that correct Mr. Boddie?

BY THE COURT: Do you understand what the evidentiary ruling is, and do you understand that

there still is outstanding an Indictment. [sic] The case has not been dismissed against you. Do you

understand that?

BY THE DEFENDANT BODDIE: Yes, sir.

¶9. Boddie changed lawyers and filed the PCR motion, the denial of which by the trial court, gives rise to

this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶10. The gravamen of Boddie's argument is that the trial court's ruling on his motion to quash the indictment

constitutes the grant of a directed verdict of not guilty on the cocaine charge and eliminates any factual basis

for the court's acceptance of his guilty plea. The State argues strenuously that the trial court made only an

evidentiary ruling and that Boddie's second argument -- that the trial court lacked a factual basis for

acceptance of his plea -- was barely presented to the trial court. Consequently, the State urges us to

procedurally bar this latter argument because of Boddie's failure to fully argue it before the trial court. The

State further submits arguendo that enough facts are contained in the record to warrant a finding that a

sufficient factual basis exists to support the trial court's acceptance of the guilty plea.

¶11. We agree with the State that the trial court made only an evidentiary ruling. The trial judge's choice of

language -- that he was granting what amounted to a directed verdict -- is unfortunate. However, the

transcript of the sentencing hearing removes any doubt as to nature of the trial judge's ruling. Moreover, we

also agree with the State that the trial judge could not grant a directed verdict on a motion to quash the

indictment. The granting of a directed verdict can only occur after the receipt of trial evidence, either at the

conclusion of the State's case-in-chief or at the conclusion of the entire case.

¶12. We find the language in State v. Peoples, 481 So. 2d 1069, 1070 (Miss. 1986), quoted by the State

in its brief, to be particularly applicable: "Neither a motion to quash nor any other pretrial pleading can be

employed to test the sufficiency of evidence." "The proper time to test the sufficiency of the evidence to

support any indictment is when the case is tried on its merits." State v. Grady, 281 So. 2d 678, 681 (Miss.

1993). When the trial judge made the evidentiary ruling, not one scintilla of trial evidence had been

introduced. While the effect of the trial judge's ruling was to forewarn the State of a serious evidentiary

impediment in the trial of its case based on the stipulated facts, the ruling could not prohibit the State from

prosecuting Boddie on the indictment. The trial court could not know whether the State would be able to

garner additional facts which would make its case stronger, and, even if the State was unable to gather

additional facts, it was still entitled to test its evidence in a trial setting.

¶13. The trial judge's statement -- that in light of its ruling, allowance of the prosecution for the transfer of

cocaine would be improper -- is not girded or anchored by supporting case law. The trial judge obviously
felt that, in the absence of a chemical analysis of the substance plus expert testimony as to what the analysis

revealed, the State could not prove beyond a reasonable doubt that Boddie transferred a controlled

substance to Peters. Such a conclusion is not necessarily warranted. While proof by an expert as to the

identity of a controlled substance is the preferred and best method of proof, the State should not be

foreclosed from employing other avenues of proof, including circumstantial evidence.

¶14. While we have not been able to find any Mississippi case addressing the question of whether proof of

the identity of a controlled substance may be proved by means other than by a chemical analysis performed

by a qualified expert, courts in other jurisdictions have addressed the question and have held that proof as

to identity may be made by other evidence, including circumstantial. See United States v. Eakes, 783 F.

2d 499, 505 (5th Cir. 1986); State of Kansas v. Northrup, 825 P. 2d 174, 178 (Kan. Ct. App. 1992);

People v. Ortiz, 554 N.E. 2d 416, 420 (Ill. App. Ct. 1990); Swain v. State, 805 P. 2d 684, 685-86

(Okla. Crim. App. 1991); State v. Nash, 444 N.W. 2d 914, 919 (Neb. 1989); People v. Steiner, 640 P.

2d 250, 252 (Colo. Ct. App. 1981).

¶15. We think it appropriate to mention one other matter, that is, the unavailability of the substance which

was transferred. As we have already observed, it appears that the substance Boddie sold to Peters was not

analyzed because it was not available for whatever reason. Therefore, the question might inevitably arise as

to whether the State could successfully prosecute a transfer-of-cocaine case in the absence of possession

of the cocaine that was transferred. We need not decide this issue since it was not presented. However, we

note that there can be a successful prosecution by circumstantial evidence for murder even though no body

is ever recovered. See, e.g., State v. Dorsey, 796 So. 2d 135 (La. App. 2 Cir. 9/26/01). It would seem

only logical that if recovery of a body is not indispensable to a successful prosecution for murder, recovery

or possession of the contraband is not indispensable to a successful prosecution of transfer of the

contraband.

¶16. We turn now to the issue of the factual basis for the trial court's acceptance of Boddie's guilty plea. As

observed previously, the State urges us to hold that this issue is procedurally barred. We agree with the

State that this issue was barely raised in the trial court. However, in light of the clear mandate of Rule 8.04

of the Uniform Circuit and County Court Rules that the court must determine the existence of a factual basis

for a guilty plea before accepting the plea, we decline to assert the proverbial procedural bar. Instead, we

look to the record to ascertain if a sufficient factual basis exists for the court's acceptance of the plea.

Gaskin v. State, 618 So. 2d 103, 106 (Miss. 1993).

¶17. We begin by acknowledging, as Boddie contends, that the plea transcript reveals that no factual basis

was offered to support the plea. However, such omission is not fatal. First, the record reveals that the trial

judge was aware of Boddie's statement that Boddie sold or transferred two rocks of crack cocaine to

Peters. Second, the statement, which is contained in the record, reveals that persons, who Boddie identified

as crack addicts, lived at or frequented the house where Peters lived and where the transaction was

consummated. The statement also reveals that one of the two rocks of substance that Boddie sold to Peters

was actually given to Melvin Bridges to give to Peters, thereby making Bridges a potential witness against

Boddie. Third, while the record does not disclose the stipulated facts that were presented to the judge

pursuant to the ruling on the motion to quash the indictment, we may infer from what the trial judge said in

his ruling that Peters for certain, and perhaps even Bridges, would testify concerning the substance that was

sold. This is borne out by the trial judge's statement that the drug user may be a Rule 701 expert who "may

have been able to touch, perceive, taste and use the controlled substance, as well as describe the effects of
the substance" on her.

¶18. The trial judge was of the view that Peters could not testify, based on her experience in using cocaine,

that in her opinion the substance sold to her was cocaine. He was mistaken in this regard. Rule 701 of the

Mississippi Rules of Evidence is clear that if a witness is not testifying as an expert, the witness's "testimony

in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based

on the perception of the witness and (b) helpful to the clear understanding of his testimony or the

determination of a fact issue." M.R.E. 701. Whether the transferred substance was in fact cocaine was an

issue of fact to be determined. Surely, Peters would have an opinion, based on her perception acquired

from her prior use of cocaine, as to the identity of the substance she received from Boddie.

¶19. Based on these facts, we cannot say that a sufficient factual basis did not exist to support the trial

judge's acceptance of Boddie's guilty plea. Accordingly, we reject Boddie's argument in this regard.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING MOTION

FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE

ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,

MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.