Johnson v. State
| Decision Date | 19 December 1984 |
| Docket Number | No. 55315,55315 |
| Citation | 461 So.2d 1288 |
| Parties | Sandra Simmons JOHNSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Donny Meeks, Gulfport, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and BOWLING and PRATHER, JJ.
Sandra Simmons Johnson was convicted in Pearl River County Circuit Court of selling a Schedule I controlled substance under Mississippi Code Annotated section 41-29-113(c)(16). She was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections.
Larry E. Taplin, a police officer with the New Orleans police department, was on special assignment with the Picayune Police Department as an undercover narcotics agent. He and another officer were attempting to buy marijuana but were unsuccessful. He approached the appellant who asked them if they wanted to buy some "T". "T" is another name used for PCP or phencyclidine. Officer Taplin purchased two "bags" or tinfoil packets for twenty dollars from appellant.
Appellant testified that she sold the drug to Larry Taplin. She said that she was given the packets by Jessie Williams in New Orleans. She said that she knew it was something that would make a person "high" but that she did not know it was an illegal drug.
On appeal appellant assigns that seven errors were committed by the lower court.
REFUSING TO SUSTAIN APPELLANT'S MOTION FOR
DISCOVERY TO INSPECT AND TEST THE
In the record there is a motion styled "MOTION FOR DISCOVERY OF SANDRA SIMMONS JOHNSON" which reads in part:
12.
Defendant moves for the disclosure of, and to inspect, examine and test any photographs, books, papers, documents and other tangible objects that were obtained from defendant or defendant's property or that allegedly belonged to defendant.
There is nothing further in the record to indicate what transpired. There is no indication that the trial court refused to sustain appellant's motion. It is the responsibility of the movant to obtain a ruling from the court on motions filed by her and failure to do so constitutes a waiver. Martin v. State, 354 So.2d 1114 (Miss.1978); Conn v. State, 260 So.2d 471 (Miss.1972); Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Grant v. Planter's Bank, 5 Miss. (4 How.) 326 (1840). See Minor v. State, 396 So.2d 1031 (Miss.1981).
Further, the record shows that appellant did not object to the testimony concerning the alleged controlled substance or the admission of the substance into evidence. Appellant's motion for a new trial further does not raise this question.
There is no merit to appellant's assignment of error.
(2) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROCEEDING
WITH TRIAL, ENTRY OF FINAL JUDGMENT AND SENTENCING
Appellant filed a Petition for Removal of her case to the United States District Court for the Southern District of Mississippi pursuant to 28 U.S.C. Sec. 1443. On the date of trial the State and appellant announced ready for trial and voir dire of the jury began at 10:00 a.m. The Petition for Removal was received at 1:15 p.m. by the clerk of the Circuit Court of Pearl River County. After the jury found the appellant guilty and the appellant was sentenced, the trial judge directed the clerk "to withhold the entry of the order of conviction on the minutes of this Court until final disposition has been made by the Federal Court on said alledged [sic] Petition of Removal."
28 U.S.C. Sec. 1446(c)(1) as amended provides:
A petition for removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the petition at a later time.
In United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1027 (9th Cir.1975) the Court held that the phrase "before trial" means "before proceedings for empanelling the jury" and a removal petition filed after a number of jurors had been selected was untimely.
The record indicates that the petition was filed and notice to the Pearl River County Circuit Clerk was given after appellant's trial began. Even if the removal is considered timely for the sake of argument, 28 U.S.C. Sec. 1446(c)(3) states the following:
The filing of a petition for removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the petition is first denied.
This was done in this case.
Therefore, there is no merit to appellant's assignment of error.
ALLOWING OVER OBJECTION, STATE WITNESSES TO TESTIFY ABOUT
THE USE AND EFFECTS OF PHENCYCLIDINE AND WHY PHENCYCLIDINE
Larry Taplin, the undercover narcotics agent who purchased the phencyclidine, testified on redirect that if he had sniffed the phencyclidine he would "get the effect of the drug; I would get high." Taplin's testimony was a followup on appellant's cross-examination in which she had asked if Taplin had sniffed or tasted the drug to determine what it was. The trial judge overruled appellant's objection and allowed Taplin to explain his action in not sniffing the drug.
On direct examination Jim Miles of the Mississippi Crime Laboratory was allowed to testify as follows:
Q. Do you know what schedule Phencyclidine is?
A. Yes, sir, I believe it is a Schedule I controlled substance.
Q. And what type substances are categorized as Scheduled I controlled substances?
A. Schedule I controlled substances are drugs which have no proven medical value and that they also exhibit a high abuse potential.
Q. All right, sir, could you categorize this drug as an upper or downer or a hallucinogenic?
A. This Phencyclidine would be categorized as a hallucinogenic.
Q. And would you explain what that is to the jury, please?
A. A hallucinogenic would be described as a drug or substance which would produce hallucinations.
Q. All right, sir.
The record does not indicate that any objection was raised to this testimony. Consequently, any objection is deemed to have been waived and is not properly before this Court on appeal.
In Burns v. State, 438 So.2d 1347 (Miss.1983) the appellant argued that "the court erred in allowing the State's expert from the Mississippi Crime Laboratory to testify as to the reason for marijuana being classed as a Schedule I Controlled Substance." The Court agreed and went on to say:
The reason for the marijuana being classified as a Schedule I Controlled Substance by the legislature was not relevant on the question of the guilt or innocence of appellant. We hold that it was error to permit the testimony, but in this case it was harmless. However, in a close case on facts such testimony might be prejudicial and inflammatory, and the state should refrain from introducing such testimony.
In view of appellant's own testimony and the evidence presented by the State, this case cannot be considered as a close case on the facts. Even if this issue had been properly preserved for appeal it was harmless error.
APPELLANT AND BY REFUSING TO MAKE A RECORD OF APPELLANT'S
Prior to trial, appellant's attorney informed the trial judge that the case had been removed to federal court under the provisions of 28 U.S.C. 1443. The trial judge contacted various State and Federal officials. According to appellant's brief the purpose was "to ascertain whether the case should proceed to trial at that time or be continued pending the action of the Federal Court."
Based on the record in this case, the action of the trial judge was proper. When informed that the case had been removed to federal court, the judge checked to see if removal had actually occurred. When he determined that no removal had occurred prior to the trial beginning, he had been assured that his court retained jurisdiction and he could proceed with the trial.
TO SENTENCE APPELLANT WITHOUT ALLOWING APPELLANT OR
APPELLANT'S COUNSEL ANY OPPORTUNITY TO REQUEST ALLOCUTION IN
In Berry v. State, 288 So.2d 457, 460 (Miss.1974) this Court held:
If allocution is considered to be a right in felony cases, it must be considered as having been waived in the complete absence of any action on the part of the accused to indicate a desire to exercise it.
See Myers v. State, 254 So.2d 891 (Miss.1971).
The record does not indicate that Johnson or her attorney made any attempt to request to make a statement prior to sentencing. Thus under the holding in Berry the right is considered waived.
Appellant cites United States v. Sparrow, 673 F.2d 862 (5th Cir.1982) in which the federal court took the position that "the failure of the sentencing judge to afford a defendant his 'absolute right' of allocution is error, requiring reversal for resentencing." 673 F.2d 865. While such may be the state of federal case law it is not the current law in Mississippi. There is no absolute right of allocution under criminal practice in Mississippi.
It can also be noted that in imposing sentence the trial judge took into consideration appellant's age, lack of prior criminal record, family situation and other aspects of the case.
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