Erving v. State

815 So. 2d 434, 2002 Miss. App. LEXIS 208, 2002 WL 555092
CourtCourt of Appeals of Mississippi
DecidedApril 16, 2002
DocketNo. 2000-KA-01211-COA
StatusPublished

This text of 815 So. 2d 434 (Erving v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erving v. State, 815 So. 2d 434, 2002 Miss. App. LEXIS 208, 2002 WL 555092 (Mich. Ct. App. 2002).

Opinion

IRVING, J., for the court.

¶ 1. Allen Erving was convicted in the Circuit Court of Neshoba County of possession of marijuana and sentenced to a term of three years incarceration in the Mississippi Department of Corrections (MDOC). Aggrieved, Erving comes before this Court asserting three issues which we quote verbatim: (1) the trial court erred in permitting the prosecutor to lead his own witness, (2) the court erred in admitting into evidence the content of the alleged confession, and (3) the court erred in admitting the results of the search warrant because the search warrant was issued without probable cause. We find no merit in these contentions; therefore, we affirm the judgment of the trial court.

FACTS

¶ 2. On February 7, 2000, Officer Patrick Mize of the Philadelphia Police Department answered a call from the manager of the Holiday Inn in Philadelphia regarding a noise disturbance in room 120. When Officer Mize arrived at the Holiday Inn, Cecily Miles, the hotel manager, escorted him to the room. Upon approaching the room, Officer Mize observed that the volume on the television was turned up extremely high. Officer Mize knocked on the door and at some point made a telephone call to the room but received no response. At that point, Officer Mize treated the situation as an emergency. Assuming someone could be in the room injured, Officer Mize and Miles entered the room with a master key. After entering the room, it was apparent to Officer Mize that the occupants were not present. [436]*436Officer Mize observed in plain view what he thought were several bags of marijuana, two recently burned marijuana cigarettes, and a hand gun. Officer Mize decided to exit the room and discuss with his superior what he had observed in the room.

¶ 3. The matter was discussed with Officer Mike King, the shift commander, and the decision was made to secure a search warrant. While filling out the affidavit for the search warrant, Officer Mize received a tip from a confidential informant who he had used before. The confidential informant stated that there were illegal drugs in room 120 at the Holiday Inn. The informant did not specify how he became aware of this information. Subsequently, the information from the confidential informant was included in an affidavit presented to the justice court judge in support of the search warrant. However, the fact that Officer Mize had already been to the room and discovered the contraband was not included in the affidavit. Officer Mize testified that he provided the justice court judge with additional oral testimony, under oath, to secure the search warrant. This additional testimony included what Officer Mize had observed in the room. On the information provided by Officer Mize, the justice court judge issued a search warrant, and Officer Mize, accompanied by five other officers, left to execute the search warrant.

¶ 4. Using the master key to enter the room, the officers discovered Erving and Dorothy Williams inside the room. All the items that Officer Mize had seen before were still there, in addition to a stack of money that was on the dresser. Shortly after the officers entered the room, according to the State’s witnesses, Erving blurted, “That’s mine, I’m diabetic, I use it for medicinal purposes.” Subsequently, Erv-ing consented to the search of his car where one brick of marijuana and nine individually wrapped bags of marijuana were found. Erving and Williams were arrested at that point.

¶ 5. Erving did not make a motion, until the trial had begun, to suppress either his statement or the evidence found in the room. When he did make the motion, he argued that the evidence should be suppressed because Officer Mize’s first entrance into the room was illegal and everything thereafter was tainted by the initial illegal entry. The trial court overruled the motion. Additional facts, including those in opposition to the suppression motion, will be given during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Leading the Witness on Direct Examination

¶ 6. Erving argues that the court erred in overruling his objection that the prosecution was leading the prosecution’s witness, Officer Baysinger, on direct examination. The colloquy was as follows:

Q. Did you observe what y’all believed to be marijuana in the room?
A. Yes, sir.
Q. Did y’all take custody of the evidence?
A. Yes, sir, we did.
Q. During that time that you were in the room, did you hear Mr. Erving say about the marijuana words to the effect, “That’s mine, I’m a diabetic, I use it for medicinal purposes”?
A. Yes, sir.
Q. You heard him say that?
A. Yes, sir.
Q. Do you remember if that was before or after he was read his rights?
[437]*437A. No, sir.
Q. No, sir, you don’t remember, or—
A. No, sir, I don’t remember.
Q. But you remember him making a statement to that effect?
A. Yes, sir.
Q. Okay. When he said that statement, was it in response to any question that you or any other officer asked him, or is it something he just blurted out voluntarily?
BY MR. BROOKS: Your honor, we object to leading now.
BY THE COURT: Overruled.
A. No, sir, it wasn’t.
Q. (Duncan) It wasn’t what?
A. In reference to any question.
Q. Was it something he just volunteered?
A. Yes, sir.

¶ 7. Erving cites 611(c) of the Mississippi Rules of Evidence as support for this argument. The rule states that “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” The supreme court has defined leading questions as follows:

A leading question is one that suggests to the witness the specific answer desired by the examining attorney. Trial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually inconsiderable and speculative, and only the trial court was able to observe the demeanor of the witness to determine the harm.

Tanner v. State, 764 So.2d 385(¶ 58) (Miss.2000) (citing Clemons v. State, 732 So.2d 883 (¶ 25) (Miss.1999)).

¶ 8. We first note that Erving did not make an objection until after the question, encompassing the damaging statement allegedly made by Erving — that’s mine, I’m a diabetic, I use it for medicinal purposes — had been asked and answered. Therefore, Erving’s objection was untimely.

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Related

Clemons v. State
732 So. 2d 883 (Mississippi Supreme Court, 1999)
Tanner v. State
764 So. 2d 385 (Mississippi Supreme Court, 2000)
Evans v. State
725 So. 2d 613 (Mississippi Supreme Court, 1997)
Agee v. State
185 So. 2d 671 (Mississippi Supreme Court, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
815 So. 2d 434, 2002 Miss. App. LEXIS 208, 2002 WL 555092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erving-v-state-missctapp-2002.