Watts v. State

• Decision Date: 17 February 1994
• Docket Number: No. 91-KA-0645,91-KA-0645
• Citation: 635 So.2d 1364
• Parties: David Lee WATTS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1364

635 So.2d 1364

David Lee WATTS v. STATE of Mississippi.

No. 91-KA-0645.

Supreme Court of Mississippi.

Feb. 17, 1994.

Rehearing Denied May 19, 1994.

Dannye L. Hunter, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the Court:

David Lee Watts was found guilty in the Circuit Court of Scott County of attempted burglary and sentenced to the maximum term of seven years imprisonment. On this appeal, Watts presents three assignments of error, only one of which warrants discussion. The other two are without merit. After careful consideration, we are forced to conclude that it was reversible error to admit evidence of another crime, found on Watts' person at the time of his arrest. For the reasons discussed below, we reverse and remand for a new trial.

THE FACTS

Trial of this cause was held in June 1991. The State called as its first witness Lamar Gatewood, Jr., owner of the premises at which the alleged attempted burglary took place. Gatewood testified his store was a wholesale grocery business located in Scott County, Mississippi. He testified the business had a burglar alarm system which was in operation when he closed at the end of business on Monday, April 29, 1991, at about 4:30 p.m. He further stated the electricity was in good working order.

In the early morning hours of April 30, Gatewood received a phone call from the Forest Police Department. Arriving at his store he saw that the police had placed someone in the back of a patrol car. He further noticed the many lights normally left on were On cross-examination, Gatewood admitted a man named Henry Riley worked for him (apparently as a watchman) from Monday thru Friday, from 6:30 a.m. until 3:00 p.m. Riley resided in a trailer about seventy-five yards from the warehouse. Gatewood stated that he assumed Riley had been at work on April 30, 1991, as usual, until 3:00 p.m. Gatewood stated he saw Riley when he arrived at the scene of the alleged crime and heard Riley tell the police he worked for Gatewood and that was why he was there. Riley told Gatewood the reason he was there was he heard on his police scanner that the police were at the warehouse.

off because the electric meter on the side of the building had been pulled off.

Officer Jimmy Nichols, a patrolman for the City of Forest Police Department, was on patrol April 30, 1991, and received a call to answer a burglar alarm at Gatewood Wholesale Grocery at approximately 2:35 a.m. He estimated he arrived there in 45 seconds since he was only two blocks away at the time. Nichols saw nothing suspicious at the front of the building, but as he turned around the building he observed a person going behind a dumpster off the loading dock area.

Officer Nichols stated he pulled up to the dumpster, shined his lights on it and told the person to come out. The person remained behind the dumpster, was again advised to come out, and then raised both hands above the dumpster. At this time, Nichols noted that the person was wearing black work gloves. After a short time, the person lowered his hands and Nichols again told him to come out. The person again raised his hands, but this time without the gloves.

Backup officers arrived at the side of the dumpster where the person could be better seen. Eventually the person, later identified as the appellant, David Lee Watts, came out and got down on the ground where he was handcuffed, searched and placed in a patrol car.

Outside the presence of the jury, Officer Nichols testified that in searching Watts the officers retrieved an American Express card, a wad of toilet paper and a silver coin from his pockets. Five more silver coins were found behind the dumpster. The name on the American Express card read "David E. Gaddis," which the officers recognized as the name of a man whose business had been burglarized the previous night. Officer Nichols stated that although they were not aware that coins had been taken at the time Watts was searched, they later learned the coins were the same coins reported stolen from the Gaddis' business. The State offered this testimony to prove Watts' intent to steal in the attempted burglary against Watts. Counsel for Watts objected to the testimony as being "pure speculation" and possibly prejudicial to Watts. After determining that the officers were aware of a burglary the previous night at Gaddis Industrial Farms at the time they searched Watts, the trial court overruled the objection.

Following the return of the jury, Officer Nichols testified to the above-stated facts. Nichols identified David Lee Watts as the man he observed traveling from the loading dock behind Gatewood Wholesale Grocery to a dumpster. Officer Nichols further testified that another officer on the scene, Officer Roncali, searched behind the dumpster and found the black gloves, a pry bar and the silver coins. Nichols stated the officers determined the gloves to be the same ones Watts was wearing when he raised his hands because they were the only gloves found behind the dumpster.

In addition to three other officers, Watts, and Mr. Gatewood, Officer Nichols also remembered Henry Riley being at the crime scene. Officer Nichols stated his opinion that the pry bar was significant evidence that Watts might be in the area to break into the Gatewood business. Nichols further thought that the pry bar was the only object discovered which could have been used to pull off the power meter. Officer Nichols admitted that in his report of the incident prepared that same night, there was no mention made of the discovery of the pry bar.

Officer Randy Patrick, a patrolman for the Forest Police Department, was on duty the Upon cross-examination, Patrick stated he knew Henry Riley prior to the night in question, and on seeing Riley on the scene, instructed him to go home. Riley did not comply and stated he was protecting the Gatewood building. Officer Patrick testified that in his opinion Riley was somewhat younger than Watts and was probably capable of removing an electric meter. Finally, Patrick stated that in patrolling the area he had never seen Riley working as a guard or a watchman prior to or after the attempted burglary.

night of April 30, 1991. He responded to a call for back up and arrived at the Gatewood Wholesale Grocery to find a black male, later identified as Watts, behind a dumpster. Officer Patrick observed Watts with a pry bar in his hand and instructed him to come out. After throwing the pry bar behind the dumpster, Watts did come out and lie on the ground.

The judge inquired whether Officer Patrick was aware that the Gaddis property had been burglarized when Watts was arrested. Officer Patrick stated "No, sir, not at the time," and immediately thereafter stated, "Yes, sir." Upon further questioning by the court, Patrick testified that the coins and credit card were not reported as stolen from the Gaddis property until after Watts was arrested.

The State rested its case and the defense moved for a directed verdict, which motion was overruled. Watts sought to call Henry Riley to the witness stand, but the defense rested after it was determined that Riley had not been located. The jury returned a guilty verdict and Watts was sentenced to the maximum term of seven years in the state penitentiary.

DISCUSSION

THE COURT COMMITTED REVERSIBLE ERROR IN ALLOWING IRRELEVANT AND PREJUDICIAL HEARSAY STATEMENTS AND EXHIBITS INTO EVIDENCE OVER DEFENDANT'S OBJECTIONS.

Watts first complains about testimony from Officers Nichols and Patrick regarding the credit card and silver coins found on or near Watts at the time of his arrest. Citing Mississippi Rules of Evidence Rule 403, Watts argues that the probative value of his testimony was outweighed by its prejudicial effect.

The State submits that the testimony of the officers was admissible under Rule 404(b), which permits evidence of "other crimes, wrongs or acts" to be admitted as proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." More specifically, the State argues, the testimony "would go to prove intent, common plan or scheme, and ability to commit the burglary of Gatewood Grocery." The State further submits the testimony was "necessary to present to the jury 'the complete story of the crime.' " The State cites Brown v. State, 483 So.2d 328, 330 (Miss.1986), and Turner v. State, 478 So.2d 300, 301 (Miss.1985), in support.

A cursory glance at the cited cases reveals they involved factual situations distinguishable from those of the case at bar. In Brown, for instance, the appellant argued that at his trial for burglary an exchange between the prosecution and the court regarding an outstanding arrest warrant had a highly prejudicial effect upon the jury. 483 So.2d at 330. The facts were that a police chief was called to the scene where Brown had attempted to cash a stolen check. The chief testified that he observed Brown wad something up and throw it into a ditch; the object turned out to be the stolen check. Over objection, the chief further stated that Brown was then arrested pursuant to an outstanding arrest warrant. In overruling the objection, the court stated that the prosecution could not go into the details of the arrest warrant "unless it pertains to this case," to which the State responded, "No, sir, it does not." Id.

Brown argued that in discussing even the existence of the warrant, the trial court and the prosecution had impermissibly informed In contrast to Brown, witnesses for the State in the present case testified in great detail to much more than was necessary to provide the jury with a coherent story of the night's events. It must be recalled that Watts was tried on a single charge of attempted burglary of the Gatewood Wholesale Grocery. In their testimonies, the police...