Billy Joe Smith v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-02106-COA
BILLY JOE SMITH
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
09/13/2000
HON. ROBERT WALTER BAILEY
WAYNE COUNTY CIRCUIT COURT
DAVID MICHAEL ISHEE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
DISTRICT ATTORNEY:
BILBO MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
POSSESSION OF COCAINE - THE APPELLANT IS
SENTENCED TO SERVE 8 YEARS AND SHALL NOT BE
ELIGIBLE FOR EARLY RELEASE OR PAROLE.
DISPOSITION:
AFFIRMED - 02/26/2002
MOTION FOR REHEARING FILED: 3/11/2002; denied 4/30/2002
CERTIORARI FILED:
MANDATE ISSUED:
5/21/2002
BEFORE SOUTHWICK, P.J., LEE, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Billy Joe Smith was convicted of possession of less than one-tenth of one gram of crack cocaine. Smith
appeals arguing that the circuit court erred in not granting his motion to quash the indictment and erred in
denying his motion for mistrial. We disagree and affirm.
STATEMENT OF FACTS
¶2. On June 24, 1999, Billy Joe Smith was arrested pursuant to outstanding felony warrants for aggravated
assault and attempted kidnaping. The arresting officers searched Smith and found a pipe used to smoke
crack cocaine. The pipe consisted of nothing more than a metal tube with a foam rubber covering at one
end. This pipe was later tested by the Mississippi Crime Laboratory and found to contain less than onetenth of one gram of crack cocaine.
¶3. Smith was indicted for felony possession of cocaine and also charged as an habitual offender. The
indictment was later amended to also seek a sentence enhancement. Smith was convicted after a one day
trial. His sentence after a separate hearing was eight years imprisonment with no possibility of early release.
DISCUSSION
1. Motion to Quash Indictment
¶4. Smith argues that the circuit court should have granted his motion to quash the indictment filed on the
day of trial. In this indictment, a statement of the amount of cocaine was added in handwriting to a
document that otherwise was entirely typed. Smith argued that this must have been done by someone in the
district attorney's office after the grand jury returned the indictment. Smith's position was that had the
addition been made earlier, the grand jury foreman would have initialed the handwritten amount to show the
grand jury's acceptance of it.
¶5. The State's explanation was that form indictments are kept in a computer file. Someone in the district
attorney's office is to type in the correct amounts before use of the indictment by the grand jury. That
procedure failed in this case and the reference on the indictment to a specific quantity of drugs was not
made until the grand jury was meeting. An assistant district attorney wrote on the indictment the amount of
cocaine found on Smith. According to the State, this handwritten amount was on the indictment prior to
signature by the grand jury foreman.
¶6. The trial court denied the motion to quash without making any factual findings as to when the quantity of
drugs was written onto the indictment. Instead, the court relied on the fact that the only impact on an
accused arising from the amount of cocaine was with sentencing. The amount of cocaine stated on this
indictment was the minimum for sentencing purposes. This analytical approach by the trial court requires us
to proceed without any trial court finding as to when the amount of drugs first appeared on the indictment.
¶7. Smith was charged with knowing or intentional possession of a controlled substance. Miss. Code Ann.
§ 41-29-139(c) (Rev. 2001). Crack cocaine is a schedule II controlled substance. Miss. Code Ann. § 4129-115(A)(a)(4) (Rev. 2001). The proof at trial was that Smith was in possession of less than one-tenth of
one gram of crack cocaine. Possession of cocaine of less than one-tenth of a gram may be charged either
as a felony or misdemeanor; if charged as a felony as it was here, and if guilt is found, the sentence is to be
between one and four years. Miss. Code Ann. § 41-29-139(c)(1)(A) (Rev. 2001). This quantity is the
minimum statutory amount for possession.
¶8. On appeal the State agrees that the quantity of drugs is an element of the crime of possession. Quantity
may only impact sentencing, but it is still an element. The trial court's decision on the motion to quash rested
on what the court perceived to be the legal insignificance of the question of amount, not on whether the
grand jury had in fact issued an indictment without any amount having been stated. Since the amount stated
on the indictment placed it within the section of the statute for the minimum punishment, the court found no
prejudice to Smith. This still leaves the question, however, of whether it was the grand jury that placed this
crime in the minimum category.
¶9. The trial court's approach could be seen as authorizing the addition of necessary elements of an offense
to an indictment without grand jury authorization, so long as the initially omitted element affects sentencing
only and the later insertion provides for the minimum sentence. That would mean that the value of property
for larceny or for arson, or other facts of volume or value that do not affect guilt but only the sentencing for
certain kinds of crime, could be left unaddressed by a grand jury and added later by the prosecutor's office
if the minimum is chosen. That is rather problematic. Instead of relying on this analysis, we look to whether
the accused had the burden to prove some alteration of the indictment or whether the State had the burden
of proving its compliance with all procedural requirements. Then we will examine the evidence offered at the
suppression hearing.
¶10. Smith argues that the burden was on the State to prove that the indictment was handled properly. We
find, though, that as the proponent of the motion, Smith had the burden of presenting some evidence to
support that an alteration of the indictment occurred after the grand jury's action. The mere allegation by an
accused does not require the State or a court on its own motion to summons members of the grand jury to
explain what occurred. Since Smith had the burden of at least creating sufficient doubt for a fact issue, we
turn to the evidence.
¶11. The indictment, just as are other official acts of public bodies, is accorded a strong presumption of
validity. Raper v. State, 317 So. 2d 709, 712 (Miss. 1975). The only evidence Smith presented is the
indictment itself, almost all of which was typed and one phrase being added with handwriting. The State
explained the normal practice and gave a reason why it was not followed in this case. We simply cannot find
that these facts create doubt about the indictment. Though the trial court made no finding, we conclude as a
matter of law that Smith needed to present something more than the presumptively valid indictment itself to
create a fact question.
2. Motion in Limine and Motion for Mistrial
¶12. During voir dire, the State related to the jury some basic facts about this case. The prosecutor said
that the two officers who arrested Smith "were out delivering or trying to find people for felony warrants."
Neither of Smith's attorneys objected. It was not until shortly before jury selection that one of Smith's
attorneys objected and requested a mistrial. Smith's attorney reasoned that because the State told the jury
that Smith had other felony charges pending that "the jury was irreparably prejudiced by this comment and
the defendant could not receive a fair trial." The attorney alleged that the comment was a violation
Mississippi Rules of Evidence 401, 402, and 403.
¶13. The circuit court noted that no motion in limine had earlier been filed by Smith and no objection was
raised when the comment was made. The court found it to be important that the prosecutor did not detail
the charges but had only explained that Smith had warrants out for his arrest. The court concluded that no
mention at trial was to be made of the actual charges and that the State was to instruct its witnesses not to
refer to them.
¶14. Similarly, Smith finds error that after the jury was selected, the prosecutor in opening statements
mentioned that both the Waynesboro Police Department and South Mississippi Narcotics Task Force were
searching for Smith. Smith argues that the naming of the narcotics task force would cause the jury to infer
that he had committed previous drug-related offenses. In fact, though, during voir dire the prosecutor had
already asked if anyone knew certain of the people who would be called as witnesses, including a person
identified to the venire as being an agent with the narcotics task force. No objection was made. When that
witness testified, he, without objection, said that he was working with the narcotics task force. A total of
three witnesses mentioned that there were felony warrants out for Smith's arrest. None of the witnesses
detailed the charges for which Smith was being sought. At no time did Smith's attorneys object to this
information.
¶15. Whether to grant or deny a motion for mistrial is a decision that is left to the sound discretion of the
trial judge. Sullivan v. State, 749 So. 2d 983, 990 (Miss. 1999). Smith's attorneys failed to object to the
comment during voir dire at the time it was made. Even on appeal no objection is made to the other
described references that occurred during voir dire and later in the trial to the narcotics task force. One of
the inevitable problems of trying to sanitize the testimony too rigorously is that the State was entitled to
explain the reasons for the initial encounter with Smith. Hubbard v. State, 437 So. 2d 430, 436 (Miss.
1983); Bell v. State, 733 So. 2d 372, 375 (Miss. Ct. App. 1999). That explanation had to avoid creating
undue prejudice, but it did not have to be artificial.
¶16. The trial judge was not given an immediate opportunity to pass on the issue and correct any possible
prejudice at that time. Failure to object to a comment made during voir dire has been found to bar appellate
consideration of that supposed error. Pulphus v. State, 782 So. 2d 1220, 1223 (Miss. 2001). We find no
fundamental error in these comments, nor any substantial likelihood of prejudice to the defendant from them.
Id. There were several references to the narcotics task force for which even now there has not been an
objection made. There is no basis to reverse.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION
OF POSSESSION OF COCAINE AND ENHANCED SENTENCE OF EIGHT YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
ELIGIBILITY FOR EARLY RELEASE OR PAROLE AND FINE OF $1,000 IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
