Tommie Lee Kittler v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01740-COA
TOMMIE LEE KITTLER
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
06/29/2000
HON. LARRY EUGENE ROBERTS
WAYNE COUNTY CIRCUIT COURT
LESLIE D. ROUSSELL
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:
BILBO MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
POSSESSION OF COCAINE (HABITUAL OFFENDER):
SENTENCED TO SIXTEEN YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS. SENTENCE SHALL NOT BE REDUCED
OR SUSPENDED AND HE SHALL NOT BE ELIGIBLE
FOR PROBATION, PAROLE. ORDERED TO PAY FINE
OF $1,000, COSTS OF $248, LAB FEE OF $100 AND AB
FEE OF $50
DISPOSITION:
AFFIRMED-05/21/2002
MOTION FOR REHEARING FILED: 5/24/2002; denied 7/30/2002
CERTIORARI FILED:
8/15/2002
MANDATE ISSUED:
BEFORE McMILLIN, C.J., BRIDGES, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Tommie Lee Kittler was convicted by a jury in the Circuit Court of Wayne County of possession of
cocaine. He has appealed and raises the following issues: (1) whether the trial judge erred in overruling his
motion for directed verdict, (2) whether the trial court erred in failing to allow his counsel to cross examine a
Mississippi crime lab witness about a federal investigation, and (3) whether the State's closing argument
resulted in unfair prejudice.
¶2. Finding no reversible error, we affirm.
FACTS
¶3. On July 2, 1999, Kittler was stopped by Officer Spencer Davis of the Wayne County Sheriff
Department for driving in a negligent manner. Kittler was given a field sobriety test and subsequently
arrested for suspicion of DUI. He was taken to the Wayne County Sheriff Department. Before Kittler was
placed in a jail cell, Willie McDougle, the jailer, searched him and found what appeared to be crack cocaine
wrapped in tissue. The substance was later identified as .11 grams of crack cocaine. However, Kittler was
indicted, as a habitual offender, for possession of 7.7 grams of cocaine. During the course of the trial, the
State was allowed to amend the indictment to change the quantity from 7.7 grams to .11 grams. Following
his conviction, Kittler filed a motion for a JNOV or, in the alternative, a new trial. That motion was denied,
and Kittler filed this appeal.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Denial of Motion for Directed Verdict
¶4. At the close of the State's case-in-chief, Kittler moved for a directed verdict on the basis that the State
had not proven every element of the indictment. Kittler argued that the indictment alleged that he possessed
7.7 grams of cocaine, whereas, the State only introduced evidence to support that he possessed .11 grams
of cocaine. The indictment returned by the grand jury states in pertinent part: "in said County and State on,
or about the 2nd day of July, A.D., 1999, [Kittler] did willfully, unlawfully and feloniously and knowingly
possess approximately 7.7 grams of cocaine, a Schedule II, controlled substance." The trial court, over
Kittler's objection, allowed the State to amend the indictment changing the quantity of cocaine from 7.7 to
.11 grams.
¶5. Kittler complains that the motion for directed verdict should have been granted based on the fact that he
was indicted for possession of 7.7 grams of cocaine when the testimony supports a finding of only .11
grams. Moreover, Kittler argues that any substantive change to an indictment requires grand jury action.
¶6. We agree with Kittler's assertion that a court may not allow an amendment of an indictment as to a
substantive matter, without the agreement of the grand jury which issued the indictment. However, the
indictment may be amended in regards to form. Wolfe v. State, 743 So. 2d 380 (¶18) (Miss. 1999);
Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990). In Shelby v. State, 246 So. 2d 543, 545 (Miss.
1971), our supreme court ruled that "a change in the indictment is permissible if it does not materially alter
facts which are the essence of the offense on the face of the indictment as it originally stood or materially
alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Amending the
indictment as to the quantity of the cocaine does not change the essence of the charge. Kittler unlawfully
possessed cocaine, a Schedule II substance, and the amount Kittler possessed only affects the penalty. See
Broadus v. State, 392 So. 2d 203, 205 (Miss. 1980).
2. Cross-Examination of State's Witness
¶7. Kittler argues that he was denied his Sixth Amendment right to cross-examine a prosecution witness.
Kittler attempted to question Grady Downey, a forensic scientist for the Mississippi Crime Laboratory,
about a federal investigation in Jackson. It is not clear from the record whether this was an investigation of
the State Crime Laboratory or some other crime lab, or evidence vault, connected to the Jackson Police
Department. In any event, the court sustained the State's objection on the basis that the questions were
without foundation and not relevant to the case. Prior to the objection being sustained, the witness testified
that he was aware of a federal investigation, but he did not testify to either the nature and scope of the
investigation or the identity of the lab involved, if in fact one was involved. No proffer was made as to what
the witness would have testified to had he been allowed to answer defense counsel's questions.
¶8. "One accused of a crime has the right to broad and extensive cross-examination of the witnesses against
him. . . ." Susan v. State, 511 So. 2d 144, 148 (Miss.1987). Mississippi Rules of Evidence 611(b) allows
liberal cross-examination so long as the issues are relevant. Consequently, Kittler could not be substantially
restricted in his right to examine an accusatory witness on relevant matters. Valentine v. State, 396 So. 2d
15, 17 (Miss. 1981). "[T]he right of cross-examination is not satisfied by 'token interrogation' and includes
the right to fully cross-examine the witness on any material matter which would bear on the credibility of the
witness." Id.; Myers v. State, 296 So. 2d 695, 700 (Miss. 1974). Kittler has offered nothing which would
suggest the relevancy of the line of questions he wished to pursue. Consequently, we affirm the trial court's
decision to disallow the questions on the basis of relevancy.
3. Closing Argument
¶9. Kittler argues that the State engaged in prejudicial closing argument. Specifically, Kittler contends that
the following argument constitutes an improper "conscience of the community" argument:
I want you to envision this, ladies and gentlemen, just to see how ridiculous this is. You can see the
newspaper headline. It says, man with cocaine found in pocket acquitted.
****
My argument, ladies and gentlemen, is if you looked at that, you would say, how could that possibly
be? And the only way that can possibly be, ladies and gentlemen, is if you fall for that bait and forget
to use your common sense -Kittler maintains that the remarks were said with the intent to intimidate the jury into convicting him out of
fear of ridicule from the public if it acquitted him. The trial judge overruled the objection with a single
statement: "Well, it's argument." Kittler also moved for a mistrial on the same basis, and the court denied his
motion.
¶10. As set forth in Craft v. State, 226 Miss. 426, 435, 84 So. 2d 531, 535 (1956), the test to determine
if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the
prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a
decision influenced by prejudice. Generally, attorneys are allowed wide latitude during closing arguments.
Forbes v. State, 771 So. 2d 942 (¶21) (Miss. 2000). A prosecutor's suggestion based on sending a
message to the community with a particular verdict has been condemned by our supreme court. Id. at (¶25)
. Additionally, the court has found that it is error for the jury to base a verdict on the consciousness of the
community and that the proper inquiry for the jury is whether the evidence supports guilt beyond a
reasonable doubt. Id. at (¶27).
¶11. We conclude that the prosecutor was a bit too zealous in the closing argument and do not condone
such argument. However, reversal is not warranted. Kittler has not shown how the outcome of his case was
prejudiced by the prosecutor's improper remarks. We do not find the remarks so egregious that the natural
and probable effect of them created such prejudice against Kittler so as to have caused the jury to reach an
unjust verdict. The evidence of his guilt was overwhelming.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION
OF POSSESSION OF COCAINE AS A HABITUAL OFFENDER AND SENTENCE OF
SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY
IMPOSED, AND FINE OF $1,000 IS AFFIRMED. ALL COSTS ARE ASSESSED TO WAYNE
COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
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