Hart v. State, 91-KA-0494

• Decision Date: 12 May 1994
• Docket Number: No. 91-KA-0494,91-KA-0494
• Citation: 639 So.2d 1313
• Parties: Andrew P. HART, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1313

639 So.2d 1313

Andrew P. HART, Jr. v. STATE of Mississippi.

No. 91-KA-0494.

Supreme Court of Mississippi.

May 12, 1994.

Rehearing Denied Aug. 18, 1994.

Herman F. Cox, Gulfport, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, Justice, for the court:

Andrew P. Hart, Jr. appeals his conviction of felony possession of marijuana with intent to deliver or distribute the same from the Circuit Court of the First Judicial District of Harrison County. Hart was sentenced to serve twenty (20) years in custody of the Mississippi Department of Corrections and ordered to pay a $250,000.00 fine. On appeal, he presents seven issues for our review.

I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS.

II. THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTIONS A-3, A-8 AND A-20.

III. THE TRIAL COURT ERRED IN ALLOWING OFFICER DESCHAMP AND OFFICER LADNER TO TESTIFY AS TO WHY

FINGERPRINTS WERE NOT LIFTED FROM THE BAGS WHICH CONTAINED THE MARIJUANA.

IV. THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT TO BE CROSS-EXAMINED BY THE STATE REGARDING A PREVIOUS CONVICTION.

V. THE TRIAL COURT ERRED IN NOT ALLOWING TIMOTHY GROSS, THE STATE CRIME LABORATORY EXPERT, TO TESTIFY ABOUT FINGERPRINT PROCEDURES.

VI. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT, PRE-EMPTORY INSTRUCTION OF NOT GUILTY AND DEFENDANT'S MOTION FOR A JNOV.

VII. THE SENTENCE AND FINE IMPOSED IN SAID CAUSE WAS DISPROPORTIONATE TO THE CRIME FOR WHICH HART WAS CONVICTED.

Finding no merit in any of the issues presented, we affirm the lower court's judgment.

FACTS

This is a case where a man packed his "bags," hopped in a car and had the misfortune of entering Mississippi. On September 21, 1989, Andrew Hart was stopped on Interstate 10 in Harrison County for speeding by Officer Darryl Deschamp of the Mississippi Highway Patrol. As Officer Deschamp approached Hart's vehicle Hart, the driver and sole occupant, rolled down the car window. Deschamp immediately detected a strong odor of unburned marijuana.

While Deschamp was completing the speeding citation, Major Phillip "Mickey" Ladner of the Mississippi Highway Patrol arrived. Deschamp informed Ladner of the odor emanating from the stopped vehicle. Ladner approached the open window of the automobile and also smelled the strong odor of unburned marijuana. At that point, Deschamp asked Hart for his consent to search the vehicle. Hart agreed for the search to occur, removed the keys from the vehicle, and walked to the back of the car where he opened the trunk. Deschamp again smelled a strong odor of marijuana coming from the trunk area. Two duffle bags containing approximately 35 pounds of marijuana were then recovered from the trunk.

At trial, Hart testified that he lived in Houston, Texas, where he was engaged in construction work. He stated that he had lived with a woman for a number of years, but she moved to Charleston, South Carolina. Hart related that he was on his way to meet the woman in Atlanta, Georgia, when he was stopped in Harrison County. According to Hart, since he owned a four-wheel drive vehicle that got very low gas mileage, he had swapped vehicles with a business associate whose Buick automobile received good gas mileage. In addition, Hart's acquaintance needed to use Hart's vehicle to haul materials. Hart related that he did not open the trunk of the borrowed car before leaving Houston. He stated, "I had my suitcase, I threw it in the back seat, I jumped in the car, phew, here I am."

ISSUE I.

THE MOTION TO SUPPRESS

Hart argues that the trial court erred in overruling his motion to suppress statements made by him and the evidence seized or possessed from the automobile driven by him. He maintains that he was not advised of his Miranda rights, and thus, any statements made by him should be excluded from evidence. We disagree. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), tells us that a single police officer's posing to the detained motorist a modest number of questions "cannot fairly be characterized as the functional equivalent of a formal arrest." Berkemer, 468 U.S. at 441, 104 S.Ct. at 3151. See also Cordoba v. Hanrahan, 910 F.2d 691, 693 (10th Cir.1990), cert. denied, 498 U.S. 1014, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990).

In Yazzie v. State, 366 So.2d 240 (Miss.1979), the defendant was indicted and tried for vehicular manslaughter. Yazzie, 366 Hart next challenges the trial court's action in overruling his motion to suppress on the basis that the search of the vehicle driven by him was made without probable cause. He first argues that Officer Deschamp's testimony at the preliminary hearing conflicted with his testimony at trial. However, the record shows no conflict in the officer's statement. The same argument was made in Boches v. State, 506 So.2d 254 (Miss.1987), and refuted. In Boches, we held the search valid and stated "that probable cause may be established through the sense of smell." Boches, 506 So.2d at 264. See also Fleming v. State, 502 So.2d 327, 329 (Miss.1987) (observing marijuana seeds in the lap of defendant's traveling companion and detecting marijuana odor was sufficient to provide probable cause to search vehicle).

                So.2d at 241.   The patrolman investigating the collision asked Yazzie's traveling companion if Yazzie was driving the vehicle occupied by them.  Id. at 243.   The companion stated that Yazzie was driving the automobile at the time of the collision, and Yazzie affirmed the statement by nodding "yes."  Id.  Yazzie contended the patrolman should have advised him of his Miranda rights before asking any questions.  Id. In refuting the assertion, we stated that the defendant "was not under arrest, he was not restrained of his freedom, and the officer was making a routine investigation of the accident at the scene.  Such is an exception to the Miranda rule."  Yazzie, 366 So.2d at 243
                

There is no merit to this assignment.

ISSUE II.

REFUSAL TO GRANT CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS A-3

AND A-8 AND POSSESSION INSTRUCTION A-20.

Hart requested that circumstantial evidence Instructions A-3 and A-8 be submitted to the jury, but the trial court refused. Hart contends that the trial court's failure to require the State to meet the burden of proof in circumstantial evidence cases constituted reversible error.

In Boches, we upheld the refusal of the trial court to grant a circumstantial evidence instruction and stated that although no confession existed in the record the prosecution was not, however, "wholly without eyewitnesses to the gravamen of the offense charged. Testimony of the officers concerning bales of marijuana found in the automobile is direct evidence of the offense." Boches, 506 So.2d at 260.

Hart next maintains the trial court erred in refusing Instruction A-20 which stated:

The Court instructs the jury that the "mere presence" of the accused in an automobile where marijuana is later found without more evidence is insufficient and this fact, standing alone, would require you, the jury, under your oaths, to find the accused, Andrew P. Hart, Jr., not guilty.

The record shows that Instruction C3 granted by the Court provided:

The Court instructs the Jury that the concept of "possession" is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that the Defendant was aware of the presence and character of a controlled substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control.

If the State has failed to prove beyond a reasonable doubt that the Defendant, Andrew P. Hart, Jr., was aware of the presence and character of the controlled substance and was intentionally and consciously in possession of it, you must return a verdict of Not Guilty.

Time and time again we have stated that the trial court "is not required to give instructions which are covered by other instructions although the language may differ." Davis v. State, 431 So.2d 468, 475 (Miss.1983). Instruction C3 properly informed the jury of the elements required to prove possession.

This assignment of error is without merit.

ISSUE III.

THE OFFICERS' TESTIMONY PERTAINING TO THE REASONS THEY DID

NOT ATTEMPT TO LIFT FINGERPRINTS FROM THE SEIZED

BAGS OF MARIJUANA

On cross-examination, Officer Deschamp acknowledged that he did not attempt to lift fingerprints from the duffle bags containing the marijuana. On redirect, the State attempted to explore the reasons why the officers did not take or request fingerprints from the bags. Hart's counsel objected to the testimony on the grounds that it was speculative and indicated Hart was acting in concert with someone else.

In Hogan v. State, 580 So.2d 1275 (Miss.1991), we stated that when "the defense attorney inquires into a subject on cross-examination of the State's witness, the prosecutor on rebuttal is unquestionably entitled to elaborate on the matter." Hogan, 580 So.2d at 1278 (quoting Crenshaw v. State, 520 So.2d 131, 133 (Miss.1988). The questions propounded by the prosecutor and the testimony elicited were well within the bounds of proper cross-examination, and there is no merit to this assignment.

ISSUE IV.

WAS THE STATE'S CROSS-EXAMINATION OF HART PERTAINING TO A

PREVIOUS CONVICTION REVERSIBLE ERROR BECAUSE OF A

DISCOVERY VIOLATION?

On the day before the trial, the court conducted an evidentiary hearing pursuant to Miss.R.Evid. 609 concerning the admission of evidence of any prior convictions that the State might attempt to place before the jury. At that time, the State was aware that Hart had a prior felony drug conviction but did not intend to use it for the purpose of attacking his...