Boches v. State
| Decision Date | 18 February 1987 |
| Docket Number | No. 56327,56327 |
| Citation | 506 So.2d 254 |
| Parties | Bruce Allen BOCHES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Orma R. Smith, Jr., Smith, Ross & Trapp, Corinth, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.
Bruce Allen Boches was convicted of felony possession of more than one (1) kilogram of marijuana with intent to sell, transfer, and distribute the same. He was sentenced to serve twelve (12) years in the Mississippi Department of Corrections and fined $30,000.00. Boches appeals to this Court assigning eleven errors.
On July 13, 1982, the Mississippi Highway Patrol in conjunction with the Alcorn County Sheriff's Department set up a roadblock outside Corinth, Mississippi, in Alcorn County to check tags, inspection stickers and drivers licenses. About 7:30 that evening two cars approached the roadblock but pulled over in a driveway before reaching the check point. Within minutes both cars pulled out and a white Pontiac driven by Boches headed in the direction from whence it came, away from the roadblock.
Highway Patrolman Hubert McDaniel left the roadblock in order to investigate the white Pontiac. He stopped the Pontiac and noted that it had a valid Mississippi substitute license plate and a valid inspection sticker. Boches produced a valid Tennessee driver's license but could not produce any ownership papers. McDaniel testified that he determined to investigate whether or not the Pontiac was stolen and also, he detected a strong odor of unburned marijuana inside the car. As a part of his duties as a patrolman McDaniel was taught to recognize the smell of marijuana but admitted that a person not familiar with such smell or one who had not smelled the substance before probably would not recognize it. McDaniel then placed Boches in his patrol car and drove him to the roadblock to pick up Officer Harold Holder.
Holder was carried to pick up the Pontiac and return it to the roadblock. He testified that once he got in the automobile he detected a strong odor that appeared to be raw marijuana. He also said the car steered sensitively as if it were weighted down in the back. According to Holder, when he returned the Pontiac to the roadblock Boches consented to a search of the interior of the vehicle in an effort to locate the ownership papers. No ownership papers Boches related an entirely different version of this incident. He testified that when they arrived at the roadblock he told the officers that the ownership papers might be in the glove compartment but he never consented to a search of the vehicle. He further said the officers opened the trunk of the vehicle while they were at the roadblock but all the officers present at the scene denied that they opened the trunk at that location. Charlie Goforth, Jr. testified that once the automobile arrived at the jail a search warrant was secured and three large bales of marijuana were found in the trunk. Goforth testified that these bags were partially opened and that he smelled the odor before and after he opened the trunk.
were found but an airplane ticket to Miami from Memphis was found. Holder then drove the Pontiac to the Alcorn County Jail and the investigation was turned over to Charlie Goforth.
Boches testified that his roommate, Donnie Wayne Floyd, called him from Miami and offered to pay him $300.00 to drive a sick friend's car back to Memphis. Boches then flew to Miami and Floyd took him directly to the automobile. The two men convoyed back to Memphis stopping only for gas and food. Boches claimed that he knew nothing about the contents of the trunk and he did not smell anything peculiar on the trip. Boches also said their car did not steer funny or feel unusually sensitive.
Boches testified that as they approached the roadblock, Floyd motioned for Boches to pull over and told him that the registration and title were not in the car and therefore Boches should find an alternative route around Corinth. Boches did not question Floyd about this and added that he did not know then nor did he know at the time of the trial who owned the vehicle.
WAS IT ERROR TO DENY A MISTRIAL WHEN THE PROSECUTOR
The defendant took the stand and during the course of direct-examination by his own attorney was questioned as follows:
Q. Mr. Boches, have you ever been a dealer or seller of marijuana?
A. No.
Q. Have you ever been convicted of any crime involving drugs of any kind?
A. No, sir.
Q. Ever been convicted of any crime whatsoever?
A. No, sir.
On cross-examination the prosecutor questioned the defendant and objection was made and sustained as follows:
Q. You testified on direct examination that you have never been convicted of any drug violation. You are not suggesting to us, are you, Mr. Boches, that you have never been involved with drugs, are you?
A. Never been involved?
Q. Yes, sir.
A. How do you mean?
Q. Well, sir, you tell me. Are you suggesting to this jury that you had no prior involvement in drug traffic?
BY MR. BOWEN: (continuing)
Q. Have you ever been charged with a drug violation?
BY MR. SMITH: We object.
BY MR. BOWEN: Your Honor, I have nothing further of this witness.
BY MR. SMITH: We would like to move for a mistrial on the basis of that question BY JUDGE GARDNER: We will take it up in a moment.
which counsel knew was very improper.
Following re-direct examination of the defendant, the trial judge admonished the jury as follows:
All right, you may step down. Ladies and gentlemen of the jury, a few moments ago a question was asked by the Assistant District Attorney, the defense objected to that question, I have--I sustained the objection at that time, which did not require that the witness answer that question. I instruct you at this time that you are to disregard the question itself. All right?
The jury was excused and the motion for mistrial was argued, and the trial judge denied the motion. At the close of all the evidence, the defense renewed the motion for mistrial, and the trial judge ruled as follows:
All right, counsel, the Court is of the opinion that it should be denied also. At the time it occurred, I sustained the Defendant's objection to that and Defendant then proceeded to cross examine or to redirect and I then, at the first opportunity, I advised the jury that I had sustained the objection and that they were not to infer from the question itself anything whatsoever, to disregard it. Furthermore, as I recall, the examination conducted by defense counsel of the Defendant himself the questions elicited by counsel or the questions themselves and the answers elicited from the Defendant were of such nature that you came awfully close to opening up this whole avenue. For that reason, I would not allow the State to go in because I don't think it's proper, but I do not feel there has been anything or that that is any cause for a mistrial in this case.
Although the defendant on direct examination opened this area to the district attorney on cross examination, still the question posed by the district attorney was improper. The court properly sustained defendant's objection to the question, which is a proper exercise of the trial court's discretion to control the extent of cross examination. Shanklin v. State, 290 So.2d 625, 627 (Miss.1974).
The trial judge then admonished the jury to disregard the question. The jury may be presumed to have heeded the trial court's admonishment, Williams v. State, 427 So.2d 100, 103 (Miss.1983), and unless egregious circumstances or bad faith of the prosecutor is present, a mistrial should not be entered. "Each case must be decided on its own peculiar facts." Henderson v. State, 403 So.2d 139, 140 (Miss.1981).
In Smith v. State, 457 So.2d 327, 334 (Miss.1984), we reaffirmed that a witness or defendant may not be asked about a crime for which he was charged, but not convicted. But this is not reversible error if the trial judge properly instructed the jury to disregard the question. Smith, 457 So.2d at 334. As the record clearly reflects, the trial judge acted properly in this record. See Smith, 457 So.2d at 334; see also, Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985); Barnette v. State, 481 So.2d 788, 790 (Miss.1985).
On this record defendant was clearly not entitled to a mistrial and there is no merit to this assignment of error.
WAS IT ERROR TO REFUSE A DIRECTED VERDICT AND/OR TO REFUSE
REGARD TO THE CONSTRUCTIVE POSSESSION OF
Boches takes the position that under Burnham v. State, 467 So.2d 946 (Miss.1985), there exists insufficient evidence to establish that he was in constructive possession of the marijuana in the car. He points out that he:
1. Did not own the vehicle;
2. Was the sole occupant of the vehicle;
3. No marijuana was found on his person or in the passenger compartment 4. Was not aware of the presence of the contraband in the vehicle.
Boches contends that these facts show that the prosecution failed to establish that he had dominion and control over the contraband or that he was aware of its presence and intentionally and consciously in possession of the contraband.
Under the authority of Curry v....
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