Horatio Walton v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00918-COA
HORATIO WALTON A/K/A HERATIO WALTON
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:
APPELLANT
APPELLEE
04/21/2000
HON. R. I. PRICHARD III
PEARL RIVER COUNTY CIRCUIT COURT
JOHN A. HOWELL
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
CLAIBORNE MCDONALD
CRIMINAL - FELONY
SALE OR TRANSFER OF A SCHEDULE II
CONTROLLED SUBSTANCE (COCAINE): SENTENCED
TO TWENTY-FIVE YEARS IN THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS; DEFENDANT TO
SERVE FIFTEEN YEARS OF SAID SENTENCE AND THE
REMAINING TEN YEARS OF THE TWENTY-FIVE YEAR
SENTENCE IS SUSPENDED; DEFENDANT IS ALSO
ORDERED TO PAY A FINE OF $3,000 AND ALL COSTS
OF COURT
AFFIRMED-01/29/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
2/19/2002
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Horatio Walton appeals from a jury verdict and judgment of conviction rendered in the Circuit Court of
Pearl River County for the sale of a controlled substance. In this appeal, his single issue for review is
whether the trial court erred in denying his motion for a mistrial because of improper comments made by the
prosecutor during closing arguments. We find that the comments do not warrant reversal; therefore, we
affirm.
FACTS
¶2. On October 9, 1998, in the city of Picayune, Mississippi, Heratio Walton sold $40 worth of crack
cocaine to Susan Taylor, an undercover officer with the Mississippi Bureau of Narcotics. He was arrested
and subsequently indicted and tried for this sale. During the closing arguments of Walton's trial, the
prosecutor made the following statement:
You heard Susan Taylor talk about the fact that the man came up, he asked me, he told me to back
up, I backed up. He came down the side of the vehicle. He walked around the front, wanted to come
to the other side. You and I know why he wants to do that, probably sold before or something
else in there is a situation where he's trying to get to where he can't be seen by (emphasis added). Walton's counsel objected to the statement and moved for a mistrial. The trial judge
denied the motion, but instructed the jury to disregard the statement and focus on the evidence.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶3. Walton argues that the prosecutor's comment was improper for two reasons. First, the prosecutor
commented on matters not in evidence. Secondly, the comments referred to bad acts or other crimes which
would be inadmissible if the State had offered them as evidence. Walton correctly contends that, according
to Mississippi Rules of Evidence 403 and 404, evidence of other bad acts is generally not admissible.
Moreover, Walton notes that no other evidence of any other drug activities was before the court. Walton
was not charged as a habitual offender.
¶4. The standard of review for denial of motion for mistrial is abuse of discretion. Gossett v. State, 660
So. 2d 1285, 1290-91 (Miss. 1995). The determination of whether to grant such a motion is within the
sound discretion of the trial court. Ladner v. State, 584 So. 2d 743, 753 (Miss. 1991). "When an
objection is sustained, and the trial judge admonishes the jury to disregard the statement, this Court will
usually find no error, absent unusual circumstances." Pulphus v. State, 782 So. 2d 1220 (¶10) (Miss.
2001) (citing Spann v. State, 771 So. 2d 883 (¶13) (Miss. 2000).
¶5. Following Walton's objection, the trial judge issued the following directive to the jury:
THE COURT: To the members of the jury, the statement made as to what Mr. Kittrell's opinion
about what the defendant has probably done before is improper comment of counsel. And y'all have
been instructed there is no evidence to support counsel's comment, you are to disregard them. And I
admonish the members of the jury to disregard that. You're here to try the case on the evidence on
this particular case and not what counsel might speculate has happened or subsequent.
The judge's admonition to the jury occurred immediately after Walton's objection. As shown in the
admonition that was given, the jury was told to disregard the prosecutor's comment. Additionally, each
member of the jury assured the court that they would disregard the statement. We agree with the State in its
recognition that the prosecutor's statement should never have been made but does not rise to a level of
prejudice which would justify a mistrial. When the court has properly instructed a jury, the presumption is
that jurors will follow the court's instructions. Crenshaw v. State, 520 So. 2d 131, 134 (Miss. 1988).
There is no reason to find that the jury did not do so here. We find that the trial court did not abuse its
discretion in denying Walton's motion for mistrial. Therefore, we affirm.
¶6. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF
CONVICTION OF SALE OR TRANSFER OF A SCHEDULE II CONTROLLED
SUBSTANCE (COCAINE) AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS
SUSPENDED ON POST-RELEASE SUPERVISION, AND PAY FINE OF $3,000 IS
AFFIRMED. ALL COSTS ARE ASSESSED TO PEARL RIVER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
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