Betty Weems v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-02011-COA
BETTY WEEMS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
10/16/2006
HON. MARGARET CAREY-MCCRAY
SUNFLOWER COUNTY CIRCUIT COURT
JULIE ANN EPPS
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
WILLIE DEWAYNE RICHARDSON
CRIMINAL - FELONY
CONVICTED OF TAKING CONTRABAND
ON THE PREMISES OF THE MISSISSIPPI
STATE PENITENTIARY AND SENTENCED
TO THREE YEARS IN THE CUSTODY OF
MISSISSIPPI DEPARTMENT OF
CORRECTIONS TO BE COMPLETED IN
THE INTENSIVE SUPERVISION
PROGRAM AND TO PAY A $3,000 FINE
AFFIRMED: 05/04/2010
EN BANC.
GRIFFIS, J., FOR THE COURT:
¶1.
Betty Weems was convicted by the Circuit Court of Sunflower County for the offense
of willfully and feloniously taking contraband onto the premises of the Mississippi State
Penitentiary in violation of Mississippi Code Annotated section 47-5-193 (Supp. 2009). On
appeal, Weems asserts the following assignments of error: (1) improper cross-examination
of Weems, (2) improper closing argument by the State, (3) cumulative errors, (4) ineffective
assistance of counsel, and (5) lack of evidence to support the conviction. We find no error
and affirm.
FACTS
¶2.
On May 7, 2005, Weems went to the Mississippi State Penitentiary in Parchman,
Mississippi, to visit her son, Victor Weems. Weems rode with her daughter, Jena Ponder,
in Jena’s car. It was their first time to visit with Victor at Parchman.
¶3.
Before going into the facility, Weems and Jena placed their purses in the trunk of the
car. At the entrance to Parchman, the Mississippi Department Of Corrections has posted
written notice that informs visitors that no money is allowed on the premises. The guards
informed Weems and Jena that they could not bring more than five dollars into the facility.
Because they both brought money, Weems and Jena walked back to the car and placed their
money in the trunk of Jena’s car.
¶4.
After returning, MDOC Correctional Officer Barbara Brady searched Weems.
Officer Brady requested that Weems take off her bra and expose the inside of the bra.
Officer Brady testified that Weems failed to comply. Officer Brady testified that Weems had
“her arms clinched” by her side, and she would not “shake [her bra],” as requested. When
asked to comply, Weems told Officer Brady there was “nothing in my bra.” Officer Brady
pulled the bra out and looked inside. Officer Brady testified that she saw money “sticking
from under the side of the bra.” The money was between the bra and the padded cushion.
The money was near Weems’s left arm pit.
2
¶5.
Officer Brady then took Weems to see Lt. Stevenson 1 . She then asked Weems “to
take that out of your bra, please.” The money consisted of a one-hundred-dollar bill folded
with five twenty-dollar bills.
¶6.
Weems was indicted and charged with the violation of Mississippi Code Annotated
section 47-5-193, which provides:
It is unlawful for any . . . person or offender to possess, furnish, attempt to
furnish, or assist in furnishing to any offender confined in this state any . . .
contraband item. It is unlawful for any person or offender to take, attempt to
take, or assist in taking any . . . contraband item on property belonging to the
[MDOC] which is occupied or used by offenders, except as authorized by law.
¶7.
At trial, Weems testified that she had tucked the money in her bra for safekeeping on
the morning of May 7th. She admitted that she had brought the money into the MDOC
facility. However, she claimed that she had forgotten that she had tucked the money in her
bra until the guard found it.
¶8.
The jury found Weems guilty, and she was sentenced to three years in the custody of
the MDOC. However, Weems’s sentence was suspended conditioned upon her successful
completion of the Intensive Supervision Program. She was also ordered to pay court costs
and a $3,000 fine. Weems filed a motion for a judgment notwithstanding the verdict or,
alternatively, a new trial which was denied.
ANALYSIS
1.
1
The prosecutor committed reversible error in questioning Weems about
statements she allegedly made to an officer at Parchman which the
prosecution insinuated were inconsistent with her trial testimony
without introducing the actual statements and in following up this
improper cross-examination with questions to Jena Ponder about a
Lt. Stevenson’s first name is not in the record.
3
letter allegedly written by her brother, Victor Weems.
¶9.
Weems’s first issue claims error when the prosecutor questioned Weems and Jena
about a letter from Victor. The letter was never offered or admitted into evidence. The State
responds that the issue was waived because no specific objection was made at trial.
¶10.
On cross-examination, the prosecutor asked Weems the following questions:
Q.
Ms. Weems, isn’t it true that during the week of April 24th of 2005
[sic] your son wrote you a letter asking you to bring him money on May
7th?
A.
It is not.
....
Q.
Did you tell [the officers] when they asked you: Did Inmate Weems ask
you to bring him the money, and you told them –“Ms. Weems stated
that Inmate Weems asked her for money; however, he did not ask her
to bring any money on May 7th, 2005. Stated she received a letter at
her residence from Inmate Weems during the week of April 24th, 2005,
indicating that he would like for her to bring him some money.” Do you
remember that?
A.
No, because it didn’t happen.
....
A.
The investigator asked me if he [had] asked me for money. The answer
to that was, he would tell me how much money he wanted in the
account if he needed money, but I did not say that he asked me to bring
him money to this prison.
Q.
Do you remember telling the investigators that you had faxed [them] a
copy of the letter that you got from your son asking for the money that
evening?
A.
Absolutely not, because I told him there was no letter. I told him I
could not recall getting a letter even asking for that (referring to the
$200.00 she put in his prison account the previous week). He (referring
to the investigator) looked in the computer, saw the 200-dollar deposit
4
that had been made. I couldn’t even remember him asking me for that.
And I told him if I could find a letter—and I had no reason not to,
because it was legal for me to put money in his account. I had done
that. I could not recall him asking. And after getting home and looking
in my receipts, I found one [deposit] that I had made five days prior to
the 7th, and it was for $200.00.
Q.
A.
I told him if I could find it, I would. I did not tell him that I got it. I
could not remember getting it.
Q.
Do you remember the officer[s] coming by to retrieve a copy of the
letter and you told them then, “I did what I had to do”?
A.
And he frightened me to death. I walked out. He was standing on my
patio, and I’ve never been as shocked and surprised in my life.
Q.
So you’re denying that he [Inmate Weems] asked you to bring him
money?
A.
I am absolutely denying that he asked me to bring him money. I
deposited money in his account.
Q.
So these officers just lied when they wrote up this report?
A.
¶11.
Ms. Weems, do you remember telling the officers you would fax them
a copy of the letter?
No, just one. One person asking me that.
Also, on cross-examination, the prosecutor asked Jena the following:
Q.
Okay, Now did you see the letter that your brother wrote asking your
mother to bring money?
A.
No.
Q.
You didn’t see that?
A.
No.
Q.
Were you aware she had gotten that letter?
A.
No.
5
¶12.
The record does not reflect that Weems’s counsel made a contemporaneous objection.
The failure to make a contemporaneous objection waives the issue on direct appeal. Wells
v. State, 698 So. 2d 497, 514 (Miss. 1997). Rule 103 of the Mississippi Rules of Evidence
provides:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context; . . .
Here, Weems’s counsel did not make contemporaneous objection. Therefore, we find that
this issue is procedurally barred.
¶13.
We also recognize that if “[t]he defendant who fails to make a contemporaneous
objection, then the defendant must rely on plain error to raise the assignment [of error] on
appeal.” Foster v. State, 639 So. 2d 1263, 1289 (Miss. 1994). Such error exists where it
affects substantial rights of the defendant. Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991).
The plain-error doctrine includes the review of errors that “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
732 (1993).
¶14.
Under Mississippi Rule of Evidence 607, “[t]he credibility of a witness may be
attacked by any party . . . .” The prosecutor sought to impeach Weems by offering
statements she purportedly had made to the officer and a letter she supposedly had received.
This evidence could have been admitted through the officer or as an exhibit, and both would
6
have impeached Weems’s testimony and provided positive evidence of her guilt. However,
the prosecutor only asked Weems about whether she had made statements to the officer and
if she had received the letter. Weems denied the statements and the receipt of the letter. Jena
also denied the existence of the letter.
¶15.
Evidence, which is otherwise inadmissible, may be used for impeachment purposes
only. Mendenhall v. State, 18 So. 3d 915, 920 (¶23) (Miss. Ct. App. 2009). See M.R.E. 613.
Rule 613 provides:
(a) Examining Witness Concerning Prior Statement. In examining a witness
concerning a prior statement made by him, whether written or not, the
statement need not be shown nor its contents disclosed to him at that time, but
on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible unless
the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate him thereon, or the
interests of justice otherwise require. This provision does not apply to
admissions of a party-opponent as defined in Rule 801(d)(2).
In Everett v. State, 835 So. 2d 118, 120-21 (¶7)(Miss. Ct. App. 2003), this Court stated:
Mississippi Rules of Evidence 613 allows the impeachment of witnesses with
their prior inconsistent statements in two ways. The first is by reading the
statement to the witness and asking whether that statement accurately reflects
the testimony given on the occasion when the statement was recorded. M.R.E.
613(a). On the other hand, a party may use extrinsic evidence. M.R.E. 613(b).
This can be done by putting on other witnesses who will introduce facts
discrediting the previous witness's testimony.
¶16.
Here, the prosecutor’s effort was an attempt to impeach Weems’s testimony under
Mississippi Rule of Evidence 613. However, the effort to impeach either failed, or it was
abandoned. The prosecutor attempted to elicit evidence of prior inconsistent statements and
to offer extrinsic evidence to contradict Weems’s testimony. Weems denied the statements
7
so the jury was left with the impression that there were neither prior inconsistent statements
nor a letter. This information was not mentioned again in the trial. Had the prosecutor
argued that during closing argument this information was evidence admitted against Weems,
then this could possibly be considered error. However, since it was not used by the
prosecutor, we cannot find it to be reversible error.
¶17.
Indeed, we recognize that Weems’s counsel could have asked for a limiting instruction
or could have argued that these denials would support the jury’s finding of not guilty.
Defense counsel could have argued that the prosecutor talked about this letter, but the State
never produced it because it did not exist. However, for whatever reason, defense counsel’s
trial strategy was not to mention it any further. We cannot find that this rises to the level of
plain error.
¶18.
Accordingly, we find this issue is procedurally barred on appeal and without merit.
2.
¶19.
The prosecutor committed reversible error by arguing facts not in
evidence thereby depriving Weems of due process and a fair trial.
Weems argues that the prosecutor argued facts which were not in the evidence during
closing argument. The State responds that any appealable issue was waived because there
was no contemporaneous objection made at trial. We conclude this issue is procedurally
barred.
¶20.
Notwithstanding the procedural bar, Weems’s argument fails because the State did not
commit error during closing argument. The Mississippi Supreme Court has long held that
attorneys are accorded a broad scope in closing arguments with few exceptions. Ballenger
v. State, 667 So. 2d 1242, 1270 (Miss. 1995) (citations omitted). In Monk v. State, 532 So.
8
2d 592, 601 (Miss. 1988) (overruled on other grounds), the supreme court stated that:
The right to argument contemplates liberal freedom of speech and range of
discussion confined only to bounds of logic and reason; and if counsel's
argument is within limits of proper debate, it is immaterial whether it is sound
or unsound or whether he employs wit, invective, and illustration therein.
Moreover, figurative speech is legitimate if there is evidence on which it may
be founded. Exaggerated statements and hasty observations are often made
in the heat of the day, which, although not legitimate, are generally
disregarded by the court, because in its opinion, they are harmless. There are,
however, certain well established limits beyond which counsel is forbidden to
go. He must confine himself to the facts introduced in evidence and to the fair
and reasonable deduction and conclusions to be drawn therefrom and to the
application of the law, as given by the court, to the facts.
(Emphasis added).
¶21.
In this case, during closing argument, the prosecutor stated:
Now, ladies and gentleman, some of these men may not know this, but I don’t
know that I have ever seen a woman that carried her money in her bra and put
in her armpit. . . . I have never seen it done, and I don’t think that this
defendant was just hiding her money there from somebody on the tennis court.
She is intentionally trying to hide the money. She knows it’s there, she takes
it in, and if you can’t tell you’ve got $200 stuck in your bra – I know these gentlem[e]n
may not understand all that, but I submit that you ladies do, that if you can’t
tell you’ve got a wad of cash stuck up in your bra, if that’s not uncomfortable,
and you don’t put it under your armpit. She knew it was there.
¶22.
The prosecutor’s argument was based on inferences from the facts that were in the
record. Accordingly, we find that this issue is procedurally barred and without merit.
3.
¶23.
The Court should reverse because cumulative error of the prosecutor
deprived Weems of due process and a fair trial.
In her brief, under this issue, Weems argues that it was reversible error for the
prosecutor to ask Weems if she thought that the officers had lied when they wrote up the
report. Weems contends that Mississippi law prohibits questioning one witness about
another witness’s credibility or asking one witness to give an opinion as to the truthfulness
9
of another witness’s statements. See M.R.E. 608. The State responds that this issue was
waived because the defense failed to make a contemporaneous objection at trial.
¶24.
The State is again correct. “Failure to make a contemporaneous objection [at trial]
waives an issue for purposes of appeal.” Spicer v. State, 921 So. 2d 292, 305 (¶22) (Miss.
2006). Weems failed to object to this question during cross-examination. Accordingly, the
objection is waived, and the issue cannot be raised on appeal.
¶25.
To warrant reversal on an issue, a party must show both error and a resulting injury.
Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). An error
is only grounds for reversal if it affects the final result of the case. Id. We are mindful that:
Attorneys are afforded wide latitude in arguing their cases to the jury but are
not allowed to employ tactics which are inflammatory, highly prejudicial, or
reasonably calculated to unduly influence the jury. We will review allegations
of misconduct to determine whether the natural and probable effect of the
improper argument is to create unjust prejudice against the accused so as to
result in a decision influenced by the prejudice so created.
Ross v. State, 954 So. 2d 968, 1001 (¶70) (Miss. 2007) (internal citation and quotations
omitted).
¶26.
The prosecutor asked Weems this question in order to attack her credibility. It does
not rise to the level of “tactics which are inflammatory, highly prejudicial, or reasonably
calculated to unduly influence the jury.” Id. The State asked Weems whether she thought
the officers were lying after the State had impeached her testimony. Since the State had
shown that the officer’s report was contradictory to what Weems claimed at trial, the
question did not further the State’s case or unduly influence the jury.
Accordingly,
notwithstanding the waiver, we find no error, and this issue is also without merit.
10
¶27.
We note that the heading of this issue, as used by Weems, is different from the
argument in her brief. The preceding issue considered the specific matter argued under this
heading. Weems contends that the cumulative errors committed at trial warrant reversal.
However, since we have found no merit to any of Weems’s assigned errors, we find no
cumulative error. “As there was no reversible error in any part, so there is no reversible error
to the whole.” McFee v. State, 511 So. 2d 130, 136 (Miss. 1987). Accordingly, this issue
is without merit.
4.
¶28.
Weems received ineffective assistance of counsel.
Weems claims ineffective assistance of counsel because defense counsel failed to
object to all of the issues raised in this appeal. Specifically, Weems claims that her counsel
was ineffective due to his failure to (1) object to the State’s cross-examination of her and
Jena; (2) object to the State’s questions to Weems about the officer’s veracity; and (3) object
to the State’s remarks during closing argument. She claims that, had her defense counsel
been effective, a reasonable jury would have found her not guilty.
¶29.
To prove ineffective assistance of counsel, Weems must show that: (1) her counsel’s
performance was deficient, and (2) this deficiency prejudiced her defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The burden of proof rests with Weems to show both
prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under Strickland, there is
a strong presumption that counsel’s performance falls within the range of reasonable
professional assistance. Strickland, 466 U.S. at 689. To overcome this presumption, “[t]he
defendant must show that there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
11
¶30.
Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal
should be addressed only when “(1) the record affirmatively show[s] ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the
appellate court to make the finding without consideration of the findings of fact of the trial
judge.” Colenburg v. State, 735 So. 2d 1099, 1101 (¶5) (Miss. Ct. App. 1999). If this Court
does not reverse on other grounds and is unable to conclude that the defendant received
ineffective assistance of counsel, it should affirm “without prejudice to the defendant's right
to raise the ineffective assistance of counsel issue via appropriate post-conviction
proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is
confined strictly to the record. Id. at 1102 (¶6).
¶31.
Weems asserts that counsel was ineffective due to his failure to object to the issues
raised in this appeal. However, we found that despite counsel’s failure to object, there was
no underlying reversible error. We find that the record before us on appeal is insufficient to
show affirmatively ineffective assistance of counsel of constitutional dimensions. As such,
we deny relief on this issue without prejudice so that Weems may present an ineffectiveassistance-of-counsel claim in a motion for post-conviction collateral relief if she so chooses.
5.
¶32.
The evidence is constitutionally insufficient to support the conviction.
Our standard of review relating to the legal sufficiency of evidence is well settled:
In reviewing whether the evidence supporting a jury verdict is legally
sufficient, this Court does not determine whether from the evidence we would
have voted to convict or acquit. Rather, we view the evidence in the light most
favorable to the prosecution and determine whether a rational juror could have
concluded beyond a reasonable doubt that all elements of the crime were
satisfied.
12
Readus v. State, 997 So. 2d 941, 944 (¶13) (Miss. Ct. App. 2008) (internal citations omitted).
¶33.
Pursuant to Mississippi Code Annotated section 47-5-193, “it is unlawful for any
person or offender to take, attempt to take, or assist in taking any weapon, deadly weapon,
. . . . or contraband item on property belonging to the department which is occupied or used
by offenders, except as authorized by law.”
¶34.
Weems testified that she brought money into Parchman, an MDOC facility. Although,
Weems denied knowingly bringing the money inside Parchman, Officer Brady testified that
she found the money inside Weems’s bra. Accordingly, there was sufficient testimony to
support the jury's verdict that Weems was guilty of bringing contraband into a prison in
violation of Mississippi Code Annotated section 47-5-193. Accordingly, we find no merit
to this issue.
¶35. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF
CONVICTION OF TAKING CONTRABAND ON THE PREMISES OF THE
MISSISSIPPI STATE PENITENTIARY AND SENTENCE OF THREE YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO BE
COMPLETED IN THE INTENSIVE SUPERVISION PROGRAM AND TO PAY A
$3,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR.
13
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