Haddox v. State, 91-KA-00652
| Decision Date | 07 April 1994 |
| Docket Number | No. 91-KA-00652,91-KA-00652 |
| Parties | Scotti Lee HADDOX, a/k/a Scottie Lee Haddox, and Terry Lee Powell v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Jim Kitchens, Kitchens & Ellis, Jackson, Connie Johnson, Morgan City, LA, for appellant.
Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and BANKS, JJ.
Scotti Lee Haddox and Terry Lee Powell, sisters, were charged with possession of over one kilogram of marijuana and intent to transfer or sell. They were both found guilty of the lesser offense of possession of over one kilogram of marijuana. They moved for a judgment notwithstanding the verdict and in the alternative a new trial. They appeal, assigning the following five errors.
I. ALL EVIDENCE DERIVED FROM THE UNLAWFUL PURSUIT AND DETENTION OF THE DEFENDANTS SHOULD HAVE BEEN SUPPRESSED;
II. THE DEFENDANTS WERE ENTITLED TO A MISTRIAL WHEN THE STATE ELICITED TESTIMONY FROM THE WITNESS SHERIFF McKENZIE PREVIOUSLY EXCLUDED BY ORDER OF THE COURT;
III. EVIDENCE RELATING TO HANDGUNS AND CASH FOUND ON THE DEFENDANTS, AND OPINION TESTIMONY REGARDING SAME, WERE IMPROPERLY ALLOWED;
IV. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON CERTAIN LESSER INCLUDED OFFENSES; and
V. THE COURT ERRED IN GRANTING STATE'S INSTRUCTIONS S-4A, S-4B AND S-5.
Scotti Lee Haddox (Scotti) and Terry Lee Powell (Terry) are sisters. On January 15, 1991, the date of the alleged crime, they were age 21 and 20 respectively. At that time, Terry was pregnant. Scotti and Terry were traveling from Houston, Texas, to Marion County, Mississippi, in their car.
Deputy Bill Vasillion received a few phone calls from a confidential informant on January 15, 1991, informing him that Scotti and Terry were to be on their way from Texas to Marion County with a large amount of marijuana. The caller gave Deputy Vasillion the make, color, and license number of the expected car. The informant was well-known to Vasillion, and Vasillion said that the informant had given him reliable information in the past, though no arrests had before been made on the basis of that informant's information. Vasillion also testified that he had investigated Scotti and Terry before.
Deputy Vasillion and Officer Bennett drove to the Marion County line on Highway 98, and waited until they saw a car matching the informant's description. They followed the car, and notified Sheriff McKenzie. Vasillion checked the ownership of the car through NCIC, and noticed that two females were in the car. He testified that they would know Scotti and Terry by sight, having seen them before. He also confirmed that the make, color, and license number matched the informant's description. The cars left the highway and were on Kokomo-New Hope Road, when Vasillion put on his blue lights. Scotti and Terry pulled over, Terry was driving. The officers asked consent to search the car, but Scotti refused. Vasillion, looking in with his flashlight, did not see any indication of contraband in the car at that time, and told Scotti and Terry that they would have to wait there while a search warrant was obtained, but he did not formally arrest them. Vasillion testified that at that time he believed that he did not yet have the authority to search the car without a warrant. Scotti said they waited about ten minutes. Vasillion said it was about five minutes.
What ended their wait was an attempt to leave the scene. As Vasillion went to his car to make a radio call, Terry got into their car and began to drive off. Scotti grabbed the bumper of Vasillion's police car to prevent him from chasing Terry. She held on to the bumper with her body under the car. Scotti stated she was afraid that if he chased Terry While driving away, Terry had been reaching for a large garbage bag in the backseat when she lost control of the car and came to a stop in a ditch beside the shoulder of the road. Terry testified that as she was driving, she found a foreign bag among her packages in the back seat, grabbed it, and threw it out of the car window. That supposedly caused the wreck.
who was pregnant, Terry might have a wreck. Another deputy car arrived and pursued Terry. Meanwhile, Deputy Vasillion physically removed Scotti from under his car once, but she immediately broke free and grabbed the bumper and resumed the same position. He then successfully removed Scotti from under his police car, and placed her under arrest and handcuffed her.
The pursuing officer testified that Terry was standing outside the car when she threw the large black garbage bag. The garbage bag, burst open, contained a green leafy substance, later identified by the crime lab as marijuana. When the officers retrieved the bag, Terry was placed under arrest. Officer Vasillion, along with other deputies, arrived at the scene of Terry's wreck, with Scotti in the backseat of the deputy car.
The officers recovered 7.7 kg of marijuana contained within the garbage bag, which had landed in the grass beside the road. A portion of the bag's contents had spilled out onto the grassy area beside the shoulder of the road. The officers gathered much of the spilled marijuana, but burned what they could not pick up. In the sisters' car, the officers found two handguns and about $3000.00 in cash.
This incident occurred between 10:30 and 11:00 PM on January 15, 1991. The informant had called the sheriff's office at about 8:00 PM and earlier that day.
Scotti and Terry moved to suppress the marijuana and any evidence stemming from the pursuit and detainment. The court denied their motion to suppress. The judge stated that the officers had the right to make an investigative stop and to detain Scotti and Terry, and that at that time, they had probable cause sufficient for a magistrate to have issued a search warrant. At trial, the confiscated 7.7 kg of marijuana and photographs of the guns and money were admitted into evidence through testimony.
A motion in limine to exclude references to the marijuana which had been burned was granted. The purpose of the exclusionary order was to prevent the jury from speculating that there were piles of marijuana involved, over and above the 7.7 kg introduced at trial.
At trial one of the assistant district attorneys was ignorant of this pre-trial order, and began to question Sheriff McKenzie about the extra marijuana. McKenzie testified that they were not able to pick up all the marijuana, at which point the defense objected. In response to the defense motion for mistrial, the judge said, "Yes, sir, you've got one." However, the judge sent the jury out, and upon listening to Matty Jo Fox, the court reporter, read what had been said, the judge concluded that no harm had been done. He further asked the sheriff if he could testify under his oath that whatever was left on the ground and burned was a miniscule amount. The sheriff responded yes. The judge then withdrew his earlier mistrial ruling, concluding that any potential violation of the pre-trial order would be cured by the sheriff testifying that what was left on the ground and burned was an insubstantial amount. He determined that this would in no way violate the purpose of the pre-trial order. The sheriff so testified when the jury returned.
Deputy Vasillion, upon identifying photographs of some $2700 in cash and guns found, stated that based on his past experience in drug-related cases, weapons and money were typically associated with controlled substances crimes. The defense objected to the evidence of the money and guns, and also to Vasillion's opinion about them.
The trial court rejected the defense' request for lesser included offense instructions on the crimes of possession of less than 1 kg and possession of less than 1 ounce of marijuana.
The defense objected also to jury instructions S-4 A & B, and instruction S-5.
The Court instructs the jury that to constitute "possession" as used in the Court's instructions in this case, with respect to
the defendant Terry Lee Powell, it is not necessary that the state prove actual physical possession of the marijuana by her; it is sufficient if the state proves to you beyond a reasonable doubt that the marijuana was subject to her dominion and control and that she was aware of its presence and character. Further the Court instructs you that the marijuana may be constructively possessed by Terry Lee Powell acting either alone or with one or more other individuals jointly.
S-4A.
Instruction S-4B was identical except that Scotti Lee Haddox's name was substituted.
Scotti and Terry also objected to state's instruction S-5. They argued that it was an improper comment on their earlier testimony that they did not expect to profit financially from their actions.
The Court instructs the jury that it is immaterial to the guilt or innocence of the Defendants that they personally did not pay for the marijuana when they obtained it or that they did not intend to receive payment for it at the time they were to deliver the marijuana.
S-5.
The other jury instructions included explanation of the state's burden of proof, and that the jury must give the defendant the benefit of any reasonable doubt. They were instructed that conviction required, among other things, that the defendants possessed "a substance known by them to be marijuana."
The jury returned a verdict of guilty of possession of over one kilogram of marijuana, but without the intent to transfer, against both Scotti and Terry. They were both sentenced to ten years in the custody of the Mississippi Department of Corrections.
I.
WHETHER ALL EVIDENCE DERIVED FROM THE DETENTION OF THE
DEFENDANTS FOR THE PURPOSE OF OBTAINING A SEARCH
WARRANT SHOULD HAVE BEEN SUPPRESSED.
The Fourth Amendment to the United States Constitution and Article 3, Section 23 of...
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