Martin v. State

• Decision Date: 05 May 1982
• Docket Number: No. 53159,53159
• Parties: Drue A. MARTIN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 730

413 So.2d 730

Drue A. MARTIN v. STATE of Mississippi.

No. 53159.

Supreme Court of Mississippi.

May 5, 1982.

Upshaw & Ladner, Alan W. Carter, Greenwood, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.

ROY NOBLE LEE, Justice, for the Court:

Drue A. Martin and John L. Pace were jointly indicted in the Circuit Court of Leflore County, Honorable Webb Franklin presiding, for possession of a controlled substance (marijuana) with intent to deliver same. Pace entered a plea of guilty to the charge and was sentenced to serve a term of four (4) years with the Mississippi Department of Corrections. Martin was tried on March 30, 1981, convicted of possession of a controlled substance (the lesser-included offense), and sentenced by the court to a term of three (3) years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. He has appealed from that sentence and judgment and assigns four (4) errors in the trial below.

I.--II.

Was the verdict of the jury contrary to the overwhelming weight of the evidence?

Did the lower court err in overruling appellant's motion for a judgment notwithstanding the verdict?

The evidence for the State reflects that appellant, while working for Hartness Painting & Sandblasting Company in or near Chattanooga, Tennessee, fell from a "sky climber" and fractured both feet. He was hospitalized in Chattanooga for approximately three (3) weeks and then was removed to his home in Chesapeake, Virginia. Both legs and feet were immobilized in casts and he was confined to a wheelchair. On leaving Chattanooga, a pickup truck, owned by him, was stored at a friend's home.

During the early part of February, 1981, appellant's friend and co-indictee, John Pace, planned to go from Chesapeake, Virginia to Greenwood, Mississippi, for the purpose of visiting his family. Appellant accompanied Pace on the trip with the understanding that, on the return trip to Virginia, Pace would drive through Chattanooga where appellant could obtain his truck and follow Pace back to Virginia.

When appellant and Pace left Virginia, Pace assisted him in getting into the automobile and he put appellant's wheelchair in the rear trunk. En route from Virginia, appellant and Pace smoked two (2) joints of marijuana. Pace told appellant not to worry about getting more because he had forty (40) to fifty (50) pounds of marijuana in the trunk of his car. He did not tell appellant why he was transporting such a large quantity of marijuana to Mississippi.

Appellant and Pace arrived in Greenwood on February 4, 1981, and checked into Room 205 of the Golden Coach Inn. According to appellant, he left the hotel room on only two (2) occasions, first, to buy cold drinks in the motel, and second, to eat at a local restaurant. Appellant and Pace planned to leave Mississippi the following Friday night.

On Thursday morning, February 5, Pace brought several large green plastic garbage bags into the motel room and stored them in an open closet in plain view of the room's occupants. Appellant testified that he opened one of the bags and saw marijuana in it, but that he never asked Pace what he was doing with same. Pace left appellant alone in the hotel room on more than one occasion that day. During the early morning hours of February 6 (Friday), an unidentified white male came to the motel room, spoke to Pace, and watched television with them until approximately 4:30 a. m. when he left. Appellant and Pace went to sleep shortly thereafter.

At approximately 5:00 a. m. on February 6, Richard Oakes, an agent with the Mississippi Bureau of Narcotics, received a telephone call from a confidential informant, who told him that John Pace and another white male were in Room 205 of the Golden Coach Inn; that John Pace was an ex-convict; and that the two men had been selling marijuana out of their motel room in one-pound quantities and were armed. Agent Oakes contacted his superior, Captain Charles W. Spillers, related the information to him, and was instructed to obtain a search warrant and proceed to the Golden Coach Inn where he would meet other officers. Agent Oakes obtained the search warrant and met Captain Spillers, agents of the Mississippi Bureau of Narcotics, Greenwood Police Chief James R. Stevens, and Leflore County Sheriff Ricky Banks. The officers knocked on the door of Room 205 at approximately 8:20 a. m. and executed the warrant.

Upon entering the room, appellant was seen lying on his back in the bed farthest from the door. The officers conducted a thorough search of the room, and found four (4) large green garbage bags of marijuana, a large brown paper bag in the closet, containing approximately four (4) pounds of marijuana, a set of triple beam scales on top of a dresser, two (2) boxes of "Zip-loc" plastic bags, and a clear plastic bag with less than one (1) pound of marijuana. Underneath the mattress of the bed upon which appellant was lying they found a .25-caliber Colt pistol and under the pillow of Pace's bed they found a .32-20 caliber Smith & Wesson revolver. Later, at the Mississippi Crime Laboratory, an examination of the plastic bags' contents identified them as 48.1 pounds of marijuana.

Appellant contends the State failed to introduce sufficient evidence to prove that he exercised dominion and control over the contraband and did not show that he had constructive possession of it. The burden was upon the State to prove beyond reasonable doubt that appellant had knowledge of the character of the contraband and that he was in either actual or constructive possession of same. Those elements may be proved by circumstantial evidence. Wolf v. State, 260 So.2d 425 (Miss.1972). In discussing the requirements of establishing such possession, the Court said in Cherry v. State, 386 So.2d 203 (Miss.1980):

The State cites Curry v. State, 249 So.2d 414 (Miss.1971) which announced the constructive possession rule as follows:

"What constitutes a sufficient external relationship between the defendant and the narcotic property to complete 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 defendant was aware of the presence and character of the particular 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. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. In the instant case, all of the circumstances and these criteria were sufficient to warrant the jury in finding that appellant was in possession of the marijuana." (Emphasis added). 249 So.2d at 416. .

The State's evidence indicates specifically:

(1) On the trip from Virginia, John Pace told appellant he had 40-50 pounds of marijuana in the trunk of his car.

(2) Appellant admitted smoking two joints of marijuana with Pace on the drive to Mississippi.

(3) Appellant admitted he saw John Pace bringing the marijuana into their hotel room in the large green plastic garbage bags on the...