A man sent to prison for life over less than two grams of crack cocaine can have his case reviewed by the judge who presided over his trial.
David Lee May, 39, was prosecuted as a habitual offender when he was convicted and sentenced in Harrison County Circuit Court on Dec. 11, 2013.
The Mississippi Supreme Court on Thursday declined to review his case and upheld a Court of Appeals ruling to send the case back to the trial court. The Court of Appeals had issued its decision Dec. 13, 2016. The state Attorney General’s Office asked the Supreme Court to uphold the conviction and sentencing, but the high court did not.
The Supreme Court sent the case back to the trial judge to consider a new trial, a lesser sentence or reversing the conviction.
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May had been a passenger in a vehicle pulled over on a traffic violation Nov. 3, 2010, on Interstate 10 in Biloxi, documents show. He was not under arrest but could not drive the vehicle because his driver’s license had been suspended.
May was sitting on the ground, seeming “nervous” and holding on to his right shoe when the officer asked him to take his shoes off. A Zippo lighter fell out of a shoe, and the officer picked it up to examine it. The officer said he found a small amount of crack and marijuana concealed inside the lighter.
The officer did not have probable cause to search the contents of his shoe, the Court of Appeals ruled.
May had the right to be free from an illegal search and seizure, and the trial judge should have considered May’s motion to suppress the evidence and whether to admit the drug into evidence, the ruling said.
He was prosecuted as a habitual offender because of four previous felony convictions: attempted robbery, possession of a firearm by a felon, escape and burglary.
Judge Larry Bourgeois, who tried the case, will review it when a hearing is set.
While out on bond pending trial, May was accused of stabbing two people and trying to rape a woman in D'Iberville in 2012. Police were unable to find May, and he was listed as wanted in the Sun Herald series, "South Mississippi's Most Wanted." He was taken into custody Oct. 28, 2012, and has been in custody since then.