Watts v. State

828 So. 2d 835, 2002 WL 1365606
Court of Appeals of Mississippi·Decided June 25, 2002·No. 2001-KA-00946-COA·Published·Cited by 7 cases

Opinion

828 So.2d 835 (2002)

Hayward WATTS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00946-COA.

Court of Appeals of Mississippi.

June 25, 2002.
Rehearing Denied August 20, 2002.
Certiorari Denied October 10, 2002.

*838 James C. Mayo, Louisville, attorney for appellant.

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

Before McMILLIN, C.J., THOMAS, MYERS, and CHANDLER, JJ.

THOMAS, J., for the court.

¶ 1. On May 11, 2001, Hayward Watts was convicted of possession of marijuana and sentenced to three years in the custody of the Mississippi Department of Corrections. Aggrieved, he asserts several issues which we have summarized and clarified as follows:

I. THE LOWER COURT ERRED IN ALLOWING THE STATE TO MAKE REFERENCE TO OTHER BAD ACTS IN ITS CLOSING ARGUMENT.

II. THE VERDICT OF THE LOWER COURT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

*839 III. THE LOWER COURT ERRED IN FAILING TO DISMISS THE INDICTMENT.

IV. THE LOWER COURT ERRED IN AMENDING THE INDICTMENT.

V. THE LOWER COURT ERRED IN FAILING TO COMPEL TIMELY DISCOVERY AND GRANT A CONTINUANCE.

VI. THE LOWER COURT JUDGE ERRED IN REFUSING TO RECUSE HIMSELF.

VII. THE LOWER COURT ERRED IN DENYING A MOTION TO SUPPRESS EVIDENCE GAINED BY A WARRANTLESS SEARCH.

VIII. THE LOWER COURT ERRED IN ENTERING A JUDGMENT ON MAY 18, 2001, TWO DAYS AFTER COURT HAD ADJOURNED ON MAY 16, 2001.

Finding no error, we affirm.

FACTS

¶ 2. On August 26, 1999, Bureau of Narcotics Agent Dave Knight spotted marijuana plants growing behind Hayward Watts' trailer during a helicopter patrol. Knight contacted Agent Mike Perkins by telephone and informed him of the situation. Perkins met Knight at Watts' trailer where they confirmed the presence of three marijuana plants growing in the yard. The agents knocked on the door and Watts came out of the trailer. Watts gave the agents his consent to search the trailer. The agents found and took photographs of numerous marijuana plants growing, potting soil both near the growing plants and against the side of Watts' trailer wall, marijuana seeds in the refrigerator, marijuana in four bags in a bowl, weigh scales in the bedroom, smoking papers, marijuana leaves, residue, and numerou marijuana seeds. Watts told the agents that he did not know what marijuana was and that he had done nothing wrong. The agents arrested Watts and took him into custody at that time.

¶ 3. On March 30, 2000, Watts was indicted for manufacture of less than one ounce of marijuana. On October 23, 2000, Watts was re-indicted for manufacture of more than one ounce of marijuana.

¶ 4. Prior to trial, Watts made a motion to suppress all evidence gained by the State due to the fact that the agents responsible for the arrest, search and seizure did not have a warrant. A suppression hearing was held prior to trial. Based on the testimony of the agents and the physical evidence gained, the lower court denied the motion to suppress. The lower court held that the marijuana plants were in plain view and that Watts had given his consent to search the trailer.

¶ 5. At trial, Watts testified in his own defense. He testified that he did not voluntarily come to the door of his trailer until the agents knocked. He further denied that the marijuana found in his trailer and growing outside belonged to him. He admitted that he consented to the search of his trailer. He stated that he did not know anything about the presence of any marijuana in or outside of his residence.

¶ 6. The lower court found Watts guilty of possession of marijuana and sentenced him to a three year term in the custody of the Mississippi Department of Corrections.

ANALYSIS

I. DID THE LOWER COURT ERR IN ALLOWING THE STATE TO MAKE REFERENCE TO OTHER BAD ACTS IN ITS CLOSING ARGUMENT?

*840 ¶ 7. Counsel is limited in his argument to facts introduced in evidence, deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts. Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991); Davis v. State, 530 So.2d 694, 701-02 (Miss.1988). Parties are given great latitude in making their closing arguments. Dunaway v. State, 551 So.2d 162,163 (Miss.1989).

¶ 8. "Trial courts are allowed considerable discretion to determine whether or not the conduct of an attorney in argument is so prejudicial that an objection should be sustained or a new trial granted." Harvey v. State, 666 So.2d 798, 801 (Miss.1995) (citing Edmond v. State, 312 So.2d 702, 705 (Miss.1975)). "The test to make such determination is whether the natural and probable effect of improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by prejudice." Harvey, 666 So.2d at 801 (citing Johnson v. State, 596 So.2d 865, 869 (Miss.1992).

¶ 9. "Prosecutors are afforded the right to argue anything in the State's closing argument that was presented as evidence." Hanner v. State, 465 So.2d 306, 311 (Miss.1985) (citations omitted). "However, arguing statements of fact which are not in evidence or necessarily inferable from it and which are prejudicial to the defendant is error." Tubb v. State, 217 Miss. 741, 744, 64 So.2d 911, 912 (Miss. 1953).

Counsel was not required to be logical in argument; he is not required to draw sound conclusions, or to have a perfect argument measured by logical and rhetorical rules; his function is to draw conclusions and inferences from evidence on behalf of his client in whatever he deems proper, so long as he does not become abusive and go outside the confines of the record.

Johnson v. State, 416 So.2d 383, 391 (Miss. 1982) (citation omitted).

¶ 10. The following statements were made during the State's closing argument:

STATE: Now I wouldn't expect the normal defendant to do that I wouldn't expect Mr. Haywood Watts to be standing out there next to his plants posing for a picture in the Winston Journal when the helicopter came over, but I would expect reasonable person, like I think y'all are, that if some helicopter came over and landed 30 feet next to his trailer or 30 yards as he said and Bureau agents pulling up in his yard, that he would have come out and investigated the matter. And do you know why he didn't? It's because of the scattered marijuana in his residence. Mr. Watts was feverishly, and I think it is reasonable for y'all to conclude that Mr. Watts was getting rid of whatever was in that trailer that he thought those agents could....

DEFENSE: Your Honor, there is not one witness testified to that.

STATE: That is reasonable, Your Honor, for the jury to conclude that.

COURT: I think it is reasonable inference. I will overrule the objection.

Earlier testimony established that there were marijuana plants outside of the Watts residence, the Bureau helicopter landed near the Watts residence, various marijuana and paraphernalia objects were found within the Watts residence, and Watts did not open his front door or go outside of his residence until the agents knocked on the door.

¶ 11. Based on this evidence, it is a reasonable inference that Watts was hiding or destroying the marijuana in his trailer prior to answering the agents'

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