Thomas Bailey v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-01483-COA
THOMAS BAILEY A/K/A THOMAS L. BAILEY
A/K/A FLY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
08/23/2001
HON. KENNETH L. THOMAS
COAHOMA COUNTY CIRCUIT COURT
DARNELL FELTON
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
LAURENCE Y. MELLEN
CRIMINAL - FELONY
POSSESSION OF A CONTROLLED
SUBSTANCE (MARIJUANA) - SENTENCED
TO SERVE A TERM OF THREE YEARS. THE
SENTENCE IMPOSED IN THIS CAUSE
SHALL RUN CONSECUTIVELY TO ANY
AND ALL SENTENCES PREVIOUSLY
IMPOSED.
AFFIRMED - 02/04/2003
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Thomas Bailey was convicted of possession of a controlled substance, marijuana, in the Circuit
Court of Coahoma County and sentenced to serve three years. Aggrieved, he asserts the following issues:
I.
THE TRIAL COURT ERRED BY PERMITTING CAPTAIN GILBERT TO OFFER
HIS UNDISCLOSED EXPERT IDENTIFICATION TESTIMONY ABOUT THE
ODOR IN THE ROOM BEING MARIJUANA.
II.
THE TRIAL COURT ERRED IN MODIFYING THE TENDERED LESSERINCLUDED OFFENSE INSTRUCTION WHICH SERVED TO
CONSTRUCTIVELY AMEND THE INDICTMENT.
III.
THE TRIAL COURT ERRED BECAUSE THE OVERWHELMING WEIGHT OF
THE EVIDENCE ONLY PROVED A MISDEMEANOR POSSESSION OF
MARIJUANA.
Finding no error, we affirm.
FACTS
¶2.
On September 22, 2000, Clarksdale Police Officers Lane and Read, and Captain Gilbert executed
a search warrant issued for room 157 of the Days Inn located on Highway 61 outside of Clarksdale,
Mississippi. Room 157 was registered to and occupied by Thomas Bailey. Captain Gilbert entered room
157 using a pass key to unlock the door. Gilbert testified that the room was full of smoke, which he
recognized as burning marijuana. Bailey objected to Gilbert's testimony about the odor. Gilbert found
Bailey lying in bed smoking a cigarette which he quickly threw down. Several clear plastic zip-lock bags
containing a green leafy substance were found in various places in the motel room. Photographs of the
substance were taken and shown to the jury. The substance was tested with three separate tests, which
according to the State's expert from the Mississippi Crime Lab, conclusively proved that the substance was
marijuana.
¶3.
Bailey was tried in the Circuit Court of Coahoma County. At the close of the State's case, Bailey
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made a motion for a directed verdict which was denied. Bailey did not choose to testify in his own defense
nor did he present any witnesses. After less than an hour of deliberation, the jury returned a unanimous
guilty verdict for felony possession of 31.6 grams of marijuana. Bailey was sentenced to serve three years
under the supervision and control of the Mississippi Department of Corrections. On September 5, 2001,
Bailey filed a motion for judgement notwithstanding the verdict, or, in the alternative, a new trial, alleging
that he was guilty of no crime greater than misdemeanor possession of marijuana. The motion was denied
on September 10, 2001. Bailey then perfected an appeal to this Court.
ANALYSIS
I.
DID THE TRIAL COURT ERR BY PERMITTING CAPTAIN GILBERT TO OFFER
HIS UNDISCLOSED EXPERT IDENTIFICATION TESTIMONY ABOUT THE
ODOR IN THE ROOM BEING MARIJUANA?
¶4.
Bailey argues that the trial court abused its discretion by permitting Captain Gilbert to testify that
the odor he smelled upon entering the hotel room seemed to be marijuana. Bailey objected to Gilbert's
testimony, claiming that Gilbert's ability to identify the odor of the smoke in the room was based upon his
experience and training as a police officer and that this training made him an expert in the identification of
the odors of burning matter.
¶5.
Bailey relied on Ramos v. State, 710 So. 2d 380 (Miss. 1998), in which error was found in
allowing an officer to testify in lay opinion as to the following: (1) the street value of marijuana; (2) that
based on his "experience and training as a law enforcement officer" the hidden compartments in Ramos'
vehicle were sealed with fresh tar, which is used by drug smugglers to mask the smell of marijuana and
blend with the under body of the car; (3) the marijuana was pressed into hard bricks and wrapped in duct
tape, which is the normal method used by drug smugglers to smuggle; and (4) when the packages were cut
open, in his opinion, the marijuana was fresh. Ramos, 710 So. 2d at 387 (¶32). The trial court
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distinguished Ramos because it involved not only the contention that the marijuana smelled fresh, but that
it also included specialized knowledge regarding the packaging of marijuana and its street value. Captain
Gilbert, on the other hand, testified simply to what he smelled upon entering the room. The trial court felt
that although Gilbert had smelled marijuana numerous times during the course of his training and working
cases, his testimony did not require any experience or expertise beyond that of an average, randomly
selected adult.
¶6.
The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless
we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion,
that decision will stand. Seal v. Miller, 605 So. 2d 240, 243 (Miss. 1992). The State asserts that Gilbert
testified that Bailey was smoking what "appeared to be a marijuana cigarette." In the past, he had smelled
burning marijuana and testified that it had a distinctive odor. When he entered Bailey's room, he smelled
that same distinctive odor. According to the State, an average, randomly selected adult would be able to
identify a distinctive odor which they had smelled previously, and this does not qualify someone as an expert
under M. R. E. 702.
¶7.
Under M. R. E. 701, the testimony of a lay witness "is limited to those opinions or inferences which
are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his
testimony or the determination of a fact in issue." There is often a very thin line between fact and opinion.
Sample v. State, 643 So. 2d 524, 529 (Miss. 1994). Gilbert was not asked an opinion as to whether or
not the substance found inside Bailey's room was marijuana. Instead, Gilbert was asked to describe what
he experienced upon entering the room. This includes what he saw, smelled, and heard.
¶8.
Gilbert's testimony was based on his personal perception at the scene of the seizure, and it was
helpful to determine a controverted material fact in issue, whether Bailey was in either direct or constructive
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possession of marijuana. The test to determine whether the opinion of a witness constitutes expert opinion
testimony rather than lay opinion testimony is whether the witness possesses some experience or expertise
beyond that of the average, randomly selected adult. Sample, 643 So. 2d at 529. Although Gilbert had
the opportunity to smell burning marijuana previously during his police career, this did not make him an
expert on burning plant matter. Gilbert was properly allowed to express an opinion upon his personal
observation and perception of the scene itself. This included the smoke in the room, the odor of the smoke,
as well as his perception of Bailey himself.
¶9.
A trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of
evidence. Unless his judicial discretion is so abused as to be prejudicial to the accused, this Court will not
reverse his ruling. Shearer v. State, 423 So. 2d 824 , 826 (Miss. 1982) (citing Page v. State, 295 So.
2d 279 (Miss. 1974)). "Before error can be predicated at all upon an adverse evidentiary ruling, it must
appear that a substantial right of the party is affected." Jackson v. State, 594 So. 2d 20, 25 (Miss. 1992).
In the case at hand, the testimony was harmless because the substance found in the room, after testing,
proved to in fact be marijuana.
¶10.
This issue is without merit.
II.
DID THE TRIAL COURT ERR IN MODIFYING THE TENDERED LESSER
INCLUDED OFFENSE INSTRUCTION AND DID IT SERVE TO
CONSTRUCTIVELY AMEND THE INDICTMENT?
¶11.
Bailey contends that the trial court erred in modifying the tendered lesser-included offense
instruction which served to constructively amend the indictment. According to Bailey, the indictment did
not track the statutory language, which according to Miss. Code Ann. § 41-29-139(c)(2)(C) labels felony
possession of marijuana at more than thirty grams. Instead, the indictment charged Thomas with possessing
31.6 grams. Bailey argues that a lesser-included offense instruction should have been given allowing a
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conviction of misdemeanor possession of marijuana if any amount less than 31.6 grams was proven to have
been in his possession. This, however, would not be a correct statement of law, because it would allow
the jury to find misdemeanor possession if Bailey was found to be in possession of more than 30 grams but
less than 31.6 grams. A jury instruction must be supported by the evidence and be a correct statement of
the law. See Perry v. State, 637 So. 2d 871, 877 (Miss. 1994); Dedeaux v. State, 630 So. 2d 30, 33
(Miss. 1993); Wilson v. State, 592 So. 2d 993, 997 (Miss. 1991).
¶12.
Bailey complains about jury instructions D-4a and C-18 which dealt with the lesser-included
offense and were granted by the trial court. Bailey did not object to C-18, however, and accordingly, any
defect in C-18 has been waived. Walker v. State, 729 So. 2d 197, 202 (¶19) (Miss. 1998). Bailey did
object to D-4a, which was reformed from his proposed instruction. Bailey contends that D-4a seriously
impaired his defense because it estopped the jury from considering any amount less than 31.6 grams as
simple possession. "[T]he trial court enjoys considerable discretion regarding the form and substance of
jury instructions." Higgins v. State, 725 So. 2d 220, 223 (¶15) (Miss. 1998).
In order to prevail on a claim that the trial court's refusal to give a requested instruction was
an abuse of discretion, a defendant must show that his requested instruction was (1) a
correct statement of the law, (2) not substantially covered in the jury charges as a whole,
and (3) of such importance that the court's failure to instruct the jury on that issue seriously
impaired the defendant's ability to present his given defense.
Chatman v. State, 761 So. 2d 851 , 854-55 (¶15) (Miss. 2000) (citing United States v. Davis, 132 F.
3d 1092, 1094 (5th Cir.1998)). Any amount less than 31.6 grams is not simple possession. Thirty grams
or less is defined as simple possession under the statute. Miss. Code Ann. § 41-29-139(c)(2)(A) (Rev.
2002).
¶13.
Bailey is correct in asserting that the trial court was misled by both the State and the defense with
respect to the cut-off point for misdemeanor and felony possession. The court was informed that 30 grams
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or more is a felony, whereas the statue reads "more than thirty grams" is a felony. Miss. Code Ann. § 4129-139(c)(2)(C) (Rev. 2002). However, this is insignificant because no reasonable, hypothetical juror
could have found from the evidence that Bailey possessed exactly 30.0 grams, no more and no less.
¶14.
The State also argues that no reasonable, hypothetical juror could have found from the testimony
and evidence that Bailey possessed any amount between 30.0 and 31.6 grams. When asked this question
by the trial court, Bailey's counsel agreed that there was no scenario where any amount between 30.0 and
31.6 grams could be found. According to the State's drug identification expert, the marijuana was found
and tested in the form of six exhibits taken from the motel room. The marijuana in the exhibits weighed 3.17
grams, 20.47 grams, 2.49 grams, 1.68 grams, 3.75 grams, and the remainder of the burning marijuana
cigarette weighed .04 grams, for a total of 31.6 grams. By this testimony, only the marijuana cigarette,
which Gilbert testified that he saw Bailey throw down upon his entry to the room, if subtracted from the
31.6 gram total, would lead to a result where Bailey was in possession of between 30.0 and 31.6 grams
of marijuana. By virtue of the lesser-included offense instruction, the jury could have found Bailey guilty
of simple possession had it not found him in possession of any of the other five weighed exhibits. The jury
did not, however, and found him guilty of possession of 31.6 grams.
¶15.
The trial court's reformation of the jury instruction did not serve to constructively amend the
indictment and deprive Bailey of a lawful defense. Bailey's proposed instruction was not a correct
statement of the law, and the trial judge was within his discretion in reforming it.
¶16.
This issue is without merit.
III.
DID THE TRIAL COURT ERR BECAUSE THE OVERWHELMING WEIGHT OF
THE EVIDENCE ONLY PROVED A MISDEMEANOR POSSESSION OF
MARIJUANA?
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¶17.
Bailey asserts that the trial court erred because the overwhelming weight of the evidence only
proved a misdemeanor possession of marijuana. Bailey bases his argument on testimony by the State's
drug identification expert, Carol Karr, who testified that none of the tests she performed on the substance
found in Bailey's room would, on their own, conclusively identify the substance as marijuana. Bailey argues
that because of this, the jury based its decision on Captain Gilbert's testimony, which he argued above was
inadmissible.
¶18.
The standard of review in determining whether a jury verdict is against the overwhelming weight
of the evidence is also well settled. "[T]his Court must accept as true the evidence which supports the
verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant
a new trial." Collins v. State, 757 So. 2d 335, 337 (¶5) (Miss. Ct .App. 2000) (quoting Dudley v. State,
719 So. 2d 180, 182 (¶9) (Miss. 1998)). On review, the State is given "the benefit of all favorable
inferences that may reasonably be drawn from the evidence." Collins, 757 So. 2d at 337 (¶5) (citing
Griffin v. State, 607 So. 2d 1197, 1201 (Miss. 1992)). "Only in those cases where the verdict is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will this Court disturb it on appeal." Collins, 757 So. 2d at 337 (¶5) (quoting
Dudley, 719 So. 2d at 182).
¶19.
Bailey fails to take notice that Karr did testify that all three tests that she performed are a standard
methodology used in crime labs across the country to test marijuana and although each test individually did
not give a definitive conclusion, positive results in all three examinations did give conclusive evidence that
the substance was, in fact, marijuana. The State, therefore, did not rely on
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Gilbert's testimony to prove the substance was marijuana. Giving the State the benefit of all favorable
inferences reasonably drawn from the evidence, the verdict was not against the overwhelming weight of the
evidence.
¶20.
This issue is without merit.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF POSSESSION OF MARIJUANA, A CONTROLLED SUBSTANCE, AND
SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS IS AFFIRMED. THE SENTENCE IMPOSED IN THIS CAUSE SHALL
RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MYERS AND
CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT
PARTICIPATING.
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