Watkins v. State

874 So. 2d 486, 2004 WL 1153907
CourtCourt of Appeals of Mississippi
DecidedMay 25, 2004
Docket2003-KA-01122-COA
StatusPublished
Cited by4 cases

This text of 874 So. 2d 486 (Watkins 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
Watkins v. State, 874 So. 2d 486, 2004 WL 1153907 (Mich. Ct. App. 2004).

Opinion

874 So.2d 486 (2004)

Johnny Cornelius WATKINS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-01122-COA.

Court of Appeals of Mississippi.

May 25, 2004.

*487 Jim Davis, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before SOUTHWICK, P.J., THOMAS, IRVING and GRIFFIS, JJ.

THOMAS, J., for the Court.

¶ 1. Johnny Cornelius Watkins appeals his convictions by a Harrison County Circuit Court jury of two counts of transfer of a controlled substance. Watkins asserts a single error in the proceedings below, that he received ineffective assistance of counsel. Specifically, he states counsel did not make any motions for discovery, counsel failed to request a severance of the two counts against him, counsel failed to file a motion in limine or obtain another ruling to prevent the State from using prior convictions against him as impeachment material, counsel failed to object to a certain statement made by the State during voir dire, counsel failed to object to testimony by a law enforcement officer not based on personal knowledge, and counsel failed to offer any jury instructions.

¶ 2. After reviewing the record, we disagree that Watkins received ineffective assistance from his counsel and now affirm the conviction.

FACTS

¶ 3. In May 2002, Tanya Ost of the Gulfport Police Department worked as an undercover buyer as part of a drug enforcement plan called Operation Rock Garden. The plan did not target any particular individual. Rather, Ost was placed in a vehicle outfitted with both audio and visual recording devices then she would cruise neighborhoods known to have high rates of drug sales and purchase crack cocaine from anyone who would sell it to her.

¶ 4. On May 20, 2002, Ost was performing these duties when she encountered *488 Watkins, nicknamed "Old School," who sold her twenty dollars' worth of crack cocaine. Ost was alone in the vehicle at the time but the meeting was captured by the recording devices. The supervising detective, Gary Ponthieux, was in a separate vehicle out of sight so as not to arouse suspicion in the neighborhood. Ponthieux could hear but not see events as they transpired.

¶ 5. Upon completing the purchase, Ost returned to Ponthieux's location, turned over the cocaine and watched as Ponthieux sealed it in an evidence bag. The video recording was retrieved from Ost's vehicle and a still photograph was made from the tape of Watkins' face. Ponthieux recognized Watkins from the photo, calling him by his nickname, "Old School."

¶ 6. On May 23, 2002, Ost was again about her duties in the same Gulfport neighborhood when she was approached by Watkins. Before stopping the vehicle, Ost checked with Ponthieux whether she should buy from Watkins again or seek out a different seller. In the end, Ost stopped and again purchased twenty dollars' worth of crack cocaine from Watkins.

¶ 7. Watkins was subsequently arrested and indicted as an habitual offender for two counts of transfer of narcotics. Trial was had May 13, 2003. The State offered the testimony of Ost, Ponthieux and Tara Milam, an analyst with the Mississippi Crime Laboratory, who confirmed the substance in each of the evidence bags given her by Gulfport police contained one-tenth of a gram of cocaine. Both videotapes made of the meetings were entered into evidence and played for the jury. Watkins argued at trial the State had not met its burden of proof beyond a reasonable doubt because the videotapes did not capture the actual transfer of narcotics. Watkins did not testify or offer any witnesses. After deliberating approximately twenty-three minutes, the jury returned verdicts of guilty on both counts.

ANALYSIS

¶ 8. Claims of ineffective assistance of counsel are reviewed based upon a two-part inquiry: (1) whether counsel's performance was deficient; and (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is evaluated by whether counsel's advice falls outside objective parameters of professional reasonableness. Id. at 687-88. Prejudice is measured by whether the result of the proceedings would have been different but for counsel's deficiency. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

1. Discovery

¶ 9. For reasons not disclosed in the record, Watkins was granted substitute counsel, Michael Hester, who represented Watkins at trial. The first attorney to represent Watkins obtained the discoverable evidence from the State and turned it over to Hester. The day before trial, Hester reviewed the videotapes with his client who then informed him they did not contain the full version of events.

¶ 10. Upon cross-examination of Ost, Hester elicited the fact that the tapes had been edited, although Ost had represented on direct examination they contained a fair, accurate and unaltered recording of her meetings with Watkins. Ost further testified no part of the meetings had been altered but the portions before and after the meetings had been edited out as they contained nothing but empty minutes of her driving to the buy area and then driving away from it.

¶ 11. Hester sought a mistrial or a dismissal, arguing Ost had misled the court, *489 the State had committed a discovery violation as he had been led to believe the remaining portions of the tape contained exculpatory evidence. In response, the State pointed out the unedited tapes had been disclosed in discovery and had always been available for review, a fact which Hester did admit. The court ordered the unedited tapes be given Hester and Watkins for their review during a recess. Following the recess, the objection to the tapes was withdrawn.

¶ 12. Having thoroughly reviewed the circumstances upon which Watkins bases this assignment of deficient performance, we believe the true thrust of Watkins' argument is not that Hester failed to request discoverable material but that Hester failed to fully review the information made available to him prior to the eve of trial. These are two quite different things.

¶ 13. As to the former, Watkins does not address what materials remained unavailable to him for use at trial through some error of his attorney. There is no allegation that other evidence, undisclosed due to counsel's negligence, exists. Counsel cannot be held ineffective for failing to request evidence which does not exist.

¶ 14. As to the latter, even were we to assume error on the part of Hester in failing to review the unedited videotapes, we can find no prejudice to the appellant as a result. After viewing the videotapes, the objection to them was withdrawn. Whatever exculpatory evidence counsel was led to believe existed in fact did not exist. We cannot see how the outcome of the trial would have differed from the result achieved.

2. Severance

¶ 15. Watkins next argues trial counsel should have requested a severance of the two charges against him. He suggests that having to defend two identical crimes prejudices him in the eyes of the jury for, having seen him commit one crime, the burden of proof is lowered so that a jury will convict on the second charge despite deficiencies in the evidence presented.

¶ 16. The reasoning employed by Watkins is the basis of the refusal to allow the prosecution of separate and distinct crimes in a single proceeding. Corley v. State,

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Bluebook (online)
874 So. 2d 486, 2004 WL 1153907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-state-missctapp-2004.