Wall v. State

• Decision Date: 06 August 1998
• Docket Number: No. 96-KA-01019-SCT,96-KA-01019-SCT
• Citation: 718 So.2d 1107
• Parties: Jerome WALL, a/k/a Jerome M. Wall, a/k/a Jerome Maurice Wall, a/k/a "Cowboy" v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1107

718 So.2d 1107

Jerome WALL, a/k/a Jerome M. Wall, a/k/a Jerome Maurice

Wall, a/k/a "Cowboy" v. STATE of Mississippi.

No. 96-KA-01019-SCT.

Supreme Court of Mississippi.

Aug. 6, 1998.

David L. Walker, Batesville, John David Weddle, Tupelo, for Appellant.

Michael C. Moore, Attorney General, Jeffrey A. Klingfuss, Special Atty. Gen., for Appellee.

Before PRATHER, C.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 Jerome Wall was indicted by the Grand Jury of the First Judicial District of Panola County, Mississippi, for possession of a controlled substance, diazepam, as an habitual offender pursuant to Miss.Code Ann. § 99-19-83. He was also indicted on a second count for possession of a controlled substance, marijuana, less than a kilogram but more than an ounce as an habitual offender pursuant to Miss.Code Ann. § 99-19-83. Wall had been convicted two previous times in Shelby County, Tennessee, once for aggravated robbery and a second time for robbery.

¶2 After the conclusion of all evidence and after both parties rested, the jury deliberated and returned a verdict of not guilty with respect to Count One of the indictment and guilty with respect to Count Two of the indictment. A sentencing proceeding was held wherein the State presented evidence and the trial court, Judge Andrew C. Baker, presiding, found Wall to be an habitual offender within the meaning of Miss.Code Ann. § 99-19-83. Wall was sentenced to life in the custody of the Mississippi Department of Corrections without hope of reduction, parole or early release.

¶3 Aggrieved by the judgment rendered against him, Palm has perfected an appeal to this Court raising the following issues:

I. WHETHER THE VERDICT OF THE JURY AS TO COUNT TWO OF THE INDICTMENT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

II. WHETHER THE TRIAL JUDGE ERRED IN DENYING JURY INSTRUCTION D-2 AND IN GRANTING INSTRUCTIONS S-3 AND S-4?

III. WHETHER THE TRIAL JUDGE ERRED IN OVERRULING WALL'S MOTION TO DISMISS FOR LACK OF A CONSTITUTIONAL SPEEDY TRIAL?

IV. WHETHER THE TRIAL JUDGE ERRED IN OVERRULING WALL'S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL?

V. WHETHER THE TRIAL JUDGE'S SENTENCE OF LIFE WITHOUT PAROLE VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 3 SECTION 28 TO THE MISSISSIPPI STATE CONSTITUTION?

STATEMENT OF THE FACTS

¶4 The State's first witness at trial was Andy Estridge, an investigator with the Mississippi Highway Safety Patrol. Estridge testified that on March 17, 1995, he was on duty with Dennis Weaver, a Highway Patrolman. Around 10:30 or 10:40 that morning while completing the issuance of a citation to another vehicle, Estridge noticed a gray car headed south on U.S. 51 just north of Sardis, Mississippi, following closely behind another vehicle. Estridge pursued and stopped the gray Buick, exited his patrol car, and met the driver of the Buick at the rear of the Buick. The driver of the vehicle informed Estridge that his Tennessee license had been suspended. At this time, Estridge identified Wall as the driver of the vehicle.

¶5 Estridge testified that he then approached the vehicle to speak to the passenger and detected the odor of marijuana coming from the passenger's compartment of the vehicle. Estridge testified that he searched the passenger compartment and found film canisters containing what he believed to be marijuana. He further testified that Wall became irate and wanted to know who had put the canisters in his car. Estridge put Wall under arrest and checked him further ¶6 Weaver returned without Wall, who was not seen again. Estridge identified the film canisters and they were marked for identification. Estridge testified that he placed the passenger under arrest, got the tag number on the vehicle, and took photographs of the vehicle which were admitted into evidence. After another search of the vehicle by Weaver, more alleged marijuana was found on the driver's side and a duffel bag containing several items was found in the trunk which were marked for identification by the State. Estridge requested that Investigator Aldridge assist in the location of Wall. Estridge further testified that he did not fingerprint the passenger of the vehicle, Denorris Carter, nor did he request the crime lab to lift fingerprints from the film canisters or other items found in the vehicle, nor was any part of the vehicle itself fingerprinted.

to make sure Wall did not have any marijuana on his person. Estridge then gave the film canisters to Officer Weaver and told him to watch the subject because he Estridge wanted to finish checking the car. Estridge testified while he began checking the passenger's person, he noticed that Weaver and Wall were gone from the location. He immediately went to the radio dispatch to call for assistance.

¶7 Officer Weaver testified that after he and Estridge had stopped the gray Buick, Estridge asked him to get information from Wall. Weaver identified Wall as the driver of the gray Buick. Weaver testified that while he was busy placing his ticket book on the rear of the patrol car, Wall ran. Weaver pursued Wall, but could not retrieve him. Weaver further confirmed the items that Estridge testified he had found in the gray Buick. However, Weaver could not testify as to whether or not Wall was ever placed under arrest, but did testify that he did not place him under arrest. Weaver only touched the handles of the duffel bag and did not touch the bags contained in the duffel bag. Weaver did not fingerprint the passenger, Carter, and testified that he did not know whether there was any request made to have any of the items seized from the gray Buick fingerprinted.

¶8 Investigator Sammy Aldridge testified that he was asked to assist in locating Wall. Aldridge was unsuccessful in his efforts, but later discovered that the Tennessee authorities had located Wall and had him in custody.

¶9 J.C. Smiley, a crime lab technician with the Mississippi Crime Laboratory, testified that he was called upon to test the substance contained in Exhibit Number 1 and concluded that it contained marijuana and Diazepam. Smiley also testified that Exhibit 3 and 5 both contained marijuana. He testified that only residue was found in the film canisters. However, he testified that he was not asked to get any fingerprints from the evidence. He also admitted that he had no knowledge concerning to whom the substances belonged.

¶10 With the end of Smiley's testimony, the State rested and Wall presented his motion for directed verdict which was denied. Wall rested without calling any witnesses.

DISCUSSION OF THE ISSUES

I. WHETHER THE VERDICT OF THE JURY AS TO COUNT TWO OF THE INDICTMENT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶11 Wall argues that his conviction was against the overwhelming weight of the evidence. He says that there was no credible evidence which would tend to show that he had direct control or constructive possession over the controlled substances found in the vehicle and that the jury's verdict was for that reason against the overwhelming weight of the evidence. Wall also states that the fact that a passenger was in the vehicle is enough to trigger the requirement that the State should have to show additional incriminating circumstances to justify a finding of constructive possession. Cunningham v. State, 583 So.2d 960, 962 (Miss.1991).

¶12 "To determine whether a jury verdict is against the overwhelming weight of the evidence, [this Court] views all of the evidence in the light consistent with the verdict and give[s] the State all favorable inferences which may be drawn from the evidence." Strong v. State, 600 So.2d 199, 204 ¶13 The theory of constructive possession has been explained in Curry v. State, 249 So.2d 414 (Miss.1971), as follows:

(Miss.1992) (citing Corley v. State, 584 So.2d 769, 773 (Miss.1991)). This Court will reverse only when it is convinced that the trial court has abused its discretion in failing to grant a new trial. Strong, 600 So.2d at 204.

[T]here 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 due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Id. at 416. The theory was further defined in Hamburg v. State, 248 So.2d 430 (Miss.1971), that "one who is the owner in possession of the premises, ... is presumed to be in constructive possession of the articles found in or on the property possessed." Id. at 432. See Jones v. State, 693 So.2d 375, 376 (Miss.1997); Townsend v. State, 681 So.2d 497, 510 (Miss.1996). In other words, the owner of a vehicle is presumed to be in constructive possession. In the case sub judice, Wall was the owner and operator of the vehicle and, thus, is presumed to be in constructive possession. Wall did not present any evidence to overcome this presumption aside of mentioning the fact that there was a passenger present in the vehicle with him. However, it is of no consequence that there was a passenger present in the vehicle with Wall. It is quite possible to have joint constructive possession. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). The State was not required to establish additional incriminating circumstances. Ferrell v. State, 649 So.2d 831, 835 (Miss.1995).

¶14 Furthermore, this case is quite similar to Wolf v. State, 260 So.2d 425 (Miss.1972). In Wolf, this Court rejected the defendant's argument, stating that the evidence showed that the car belonged to Wolf, that he had been driving it, that the marijuana was found in the immediate proximity of the defendant, and...