Watkins v. State
| Decision Date | 13 December 2012 |
| Docket Number | No. 2010–KA–01670–SCT.,2010–KA–01670–SCT. |
| Citation | 101 So.3d 628 |
| Parties | Marshall Keith WATKINS a/k/a Keith Watkins a/k/a Marshall Watkins v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
OPINION TEXT STARTS HERE
Virginia L. Watkins, William R. Labarre, Alison Oliver Kelly, attorneys for appellant.
Office of the Attorney General by Laura H. Tedder, attorney for appellee.
Before WALLER, C.J., LAMAR and PIERCE, JJ.
LAMAR, Justice, for the Court:
¶ 1. Marshall Keith Watkins was convicted of possession with intent to distribute five separate controlled substances and simple possession of one controlled substance. Watkins now appeals his conviction, arguing the trial court erred by: 1) refusing to dismiss Counts Two through Six of his indictment based on double jeopardy; 2) granting several jury instructions submitted by the State on the morning of closing arguments; 3) permitting a jury instruction based upon constructive possession; and 4) excluding evidence related to the disposition of the two other individuals indicted with Watkins. Watkins also argues the cumulative effect of the alleged errors deprived him of a fair trial, and asks this Court to reverse his conviction. We find all of Watkins's assigned errors are without merit and affirm Watkins's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶ 2. Sometime before January of 2009, Crimestoppers began receiving tips of illegal narcotic activity at 311 Willow Bay Drive in Byram, Mississippi, which was the home of Marshall Keith Watkins. On January 5, 2009, the Hinds County Sheriff's Office executed a search warrant for Watkins's home. The officers found Watkins, his cousin Derrick Horn, and Elizabeth Bridges in the house; all three were detained. Watkins was searched, and officers found, among other things, a small satchel containing two bags of crystal methamphetamine on Watkins's person.
¶ 3. Upon searching the house, officers discovered a locked safe in the master bedroom closet. Watkins provided the combination to unlock the safe. The safe contained a large amount of pills (a total of 1,339 and a half pills), two small notebooks apparently used as drug-sale ledgers, hand-held and digital scales, a pill crusher, baggies, and a syringe containing a liquid substance. The pills were identified by the Mississippi Crime Laboratory to be oxycodone, morphine, hydrocodone, hydromorphone, oxymorphone, and meperidine; the syringe was proven to contain liquid methamphetamine.
¶ 4. A Hinds County grand jury jointly indicted Watkins, Horn, and Bridges for six separate violations of Mississippi Code Section 41–29–139, specifically for possession of six Schedule II narcotics with intent to distribute. 1 The six charges were based upon the following substances: Count One: 1,209 dosage units of oxycodone; Count Two: more than one but less than two grams of methylenedioxymethamphetamine; Count Three: more than twenty but less than forty dosage units of morphine; Count Four: more than forty dosage units of hydrocodone; Count Five: more than two but less than ten dosage units of hydromorphone; Count Six: more than two but less than ten dosage units of oxymorphone.2 The charges against Horn and Bridges were ultimately nolle prossed.
¶ 5. Watkins was tried before a jury in the Circuit Court of Hinds County. At the onset of trial, the court considered motions by each side. Watkins moved to have Counts Two through Six dismissed based upon the prohibition against double jeopardy, arguing that, because the various drugs found in his house were all controlled substances and Section 41–29–139 does not differentiate between types of controlled substances, he should be charged with only one crime—possession of a controlled substance with intent to distribute—not a separate crime for each substance that was found in the house. Watkins's motion was denied. The State moved to exclude any testimony related to the disposition of the indictments against Horn and Bridges. Watkins opposed this motion, arguing that he should be allowed to show that the State chose not to pursue Horn and Bridges because his theory of defense was that the drugs were in the possession of Horn. The State's motion was granted.
¶ 6. During trial, Watkins took the stand in his own defense. Watkins testified at length that he did not have possession of the drugs found in the safe and had no knowledge that any drugs were in the safe. Specifically, Watkins testified that his cousin, Horn, had been kicked out of his home and had lived with him for several weeks before the search; he had no knowledge that the ledgers were related to the sale of drugs; he had not opened the safe since before Horn had moved in; he had no knowledge that pills were in the safe; the pills and ledgers belonged to Horn; and, although he had received drugs from Horn for “recreational purposes,” he had no knowledge that Horn was selling drugs or had any drugs other than enough for the two of them.
¶ 7. After the parties rested and the jury was excused, the parties and the trial court discussed jury instructions. After the court had ruled on the majority of the instructions, the trial judge asked both parties whether they had any additional jury instructions to submit; both parties stated they did not. The next morning, before closing arguments were to begin, the State submitted several new jury instructions, including S–24 through S–29, which related to the lesser offense of simple possession. Watkins moved to have the new instructions rejected on the ground that they were untimely and further argued he would be prejudiced if the instructions were allowed, because they forced him to change his theory of defense, and his attorneys already had formulated their closing argument based upon the jury instructions determined the day before. The trial court allowed Watkins's attorneys time to review the instructions and make additional objections, but ultimately allowed Instructions S–24 through S–29. However, the trial court granted Watkins's attorneys additional time to review the new instructions and to reconsider their closing argument.
¶ 8. Watkins was convicted of possession with intent to distribute on Count One and Counts Three through Six (based on the large number of pills found in the safe) and simple possession on Count Two (based on the small amount of crystal meth found in his pocket). After sentencing, Watkins filed a post-trial motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial, which was denied. Watkins perfected this appeal.
¶ 9. Watkins now asks this Court to find the trial court erred: in denying his motion to dismiss Counts Two through Six of the indictment based upon double jeopardy; in allowing the State's untimely submitted Instructions S–24 through S–29 regarding the lesser offense of possession; in allowing Instruction S–13 regarding constructive possession; and in excluding evidence related to the disposition of the charges against Horn and Bridges. Watkins also asks this Court to find that the cumulative effect of his assigned errors denied him a fair trial and to reverse his conviction. We find no merit in any error assigned on appeal and affirm Watkins's conviction and sentence.
DISCUSSION
¶ 10. The Court applies a de novo standard of review to claims of double jeopardy.3
¶ 11. Watkins argues that his right to protection against double jeopardy was violated because he was subject to multiple punishments for the same offense. Specifically, he argues that Section 41–29–139 provides only that it is unlawful to possess and intend to distribute any controlled substance and does not make distinctions based upon the type of controlled substance. According to Watkins, as each charge required that the State prove he possessed and intended to distribute a controlled substance, all six charges contained the same elements and should have been considered one offense; therefore, he contends he should have been charged with only one violation of Section 41–29–139.
¶ 12. The Fifth Amendment to the Constitution of the United States provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb....” 4 We have recognized that the Supreme Court of the United States has held double-jeopardy protection applies in three situations: “(1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.” 5 We also have recognized that the Supreme Court set out a “same-elements” test to determine whether double jeopardy applies. 6 As we explained in Graves, “[t]he Blockburger [ v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test instructs us to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense for double jeopardy purposes, and successive prosecutions and/or punishments are constitutionally barred.” 7 Further, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 8
¶ 13. Mississippi Code Section 41–29–139 provides, in pertinent part:
(a) Except as authorized by this article, it is unlawful for any person to knowingly or intentionally:
(1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or
...
(b) Except as otherwise provided in subsections (f) and (g) of this section or in Section 41–29–142, any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in Schedule I or II, as set in Sections...
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