Johnny Cornelius Watkins v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-01122-COA
JOHNNY CORNELIUS WATKINS
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
5/13/2003
HON. ROBERT H. WALKER
HARRISON COUNTY CIRCUIT COURT
JIM DAVIS
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CONO A. CARANNA, II
CRIMINAL - FELONY
COUNT I, TRANSFER OF CONTROLLED
SUBSTANCE; COUNT II, TRANSFER OF
CONTROLLED SUBSTANCE. SENTENCE OF
20 YEARS ON EACH COUNT, TO RUN
CONCURRENTLY.
AFFIRMED - 05/25/2004
BEFORE SOUTHWICK, P.J., THOMAS, IRVING AND GRIFFIS, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Johnny Cornelius Watkins appeals his convictions by a Harrison County Circuit Court jury of two
counts of transfer of a controlled substance. Watkins asserts a single error in the proceedings below, that
he received ineffective assistance of counsel. Specifically, he states counsel did not make any motions for
discovery, counsel failed to request a severance of the two counts against him, counsel failed to file a motion
in limine or obtain another ruling to prevent the State from using prior convictions against him as
impeachment material, counsel failed to object to a certain statement made by the State during voir dire,
counsel failed to object to testimony by a law enforcement officer not based on personal knowledge, and
counsel failed to offer any jury instructions.
¶2.
After reviewing the record, we disagree that Watkins received ineffective assistance from his
counsel and now affirm the conviction.
FACTS
¶3.
In May 2002, Tanya Ost of the Gulfport Police Department worked as an undercover buyer as
part of a drug enforcement plan called Operation Rock Garden. The plan did not target any particular
individual. Rather, Ost was placed in a vehicle outfitted with both audio and visual recording devices then
she would cruise neighborhoods known to have high rates of drug sales and purchase crack cocaine from
anyone who would sell it to her.
¶4.
On May 20, 2002, Ost was performing these duties when she encountered Watkins, nicknamed
"Old School," who sold her twenty dollars' worth of crack cocaine. Ost was alone in the vehicle at the time
but the meeting was captured by the recording devices. The supervising detective, Gary Ponthieux, was
in a separate vehicle out of sight so as not to arouse suspicion in the neighborhood. Ponthieux could hear
but not see events as they transpired.
¶5.
Upon completing the purchase, Ost returned to Ponthieux's location, turned over the cocaine and
watched as Ponthieux sealed it in an evidence bag. The video recording was retrieved from Ost's vehicle
and a still photograph was made from the tape of Watkins' face. Ponthieux recognized Watkins from the
photo, calling him by his nickname, "Old School."
2
¶6.
On May 23, 2002, Ost was again about her duties in the same Gulfport neighborhood when she
was approached by Watkins. Before stopping the vehicle, Ost checked with Ponthieux whether she should
buy from Watkins again or seek out a different seller. In the end, Ost stopped and again purchased twenty
dollars' worth of crack cocaine from Watkins.
¶7.
Watkins was subsequently arrested and indicted as an habitual offender for two counts of transfer
of narcotics. Trial was had May 13, 2003. The State offered the testimony of Ost, Ponthieux and Tara
Milam, an analyst with the Mississippi Crime Laboratory, who confirmed the substance in each of the
evidence bags given her by Gulfport police contained one-tenth of a gram of cocaine. Both videotapes
made of the meetings were entered into evidence and played for the jury. Watkins argued at trial the State
had not met its burden of proof beyond a reasonable doubt because the videotapes did not capture the
actual transfer of narcotics. Watkins did not testify or offer any witnesses. After deliberating approximately
twenty-three minutes, the jury returned verdicts of guilty on both counts.
ANALYSIS
¶8.
Claims of ineffective assistance of counsel are reviewed based upon a two-part inquiry: (1)
whether counsel's performance was deficient; and (2) whether that deficiency caused prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is evaluated
by whether counsel's advice falls outside objective parameters of professional reasonableness. Id. at 68788. Prejudice is measured by whether the result of the proceedings would have been different but for
counsel's deficiency. Cole v. State, 666 So. 2d 767, 775 (Miss. 1995).
1. Discovery
¶9.
For reasons not disclosed in the record, Watkins was granted substitute counsel, Michael Hester,
who represented Watkins at trial. The first attorney to represent Watkins obtained the discoverable
3
evidence from the State and turned it over to Hester. The day before trial, Hester reviewed the videotapes
with his client who then informed him they did not contain the full version of events.
¶10.
Upon cross-examination of Ost, Hester elicited the fact that the tapes had been edited, although
Ost had represented on direct examination they contained a fair, accurate and unaltered recording of her
meetings with Watkins. Ost further testified no part of the meetings had been altered but the portions
before and after the meetings had been edited out as they contained nothing but empty minutes of her
driving to the buy area and then driving away from it.
¶11.
Hester sought a mistrial or a dismissal, arguing Ost had misled the court, the State had committed
a discovery violation as he had been led to believe the remaining portions of the tape contained exculpatory
evidence. In response, the State pointed out the unedited tapes had been disclosed in discovery and had
always been available for review, a fact which Hester did admit. The court ordered the unedited tapes be
given Hester and Watkins for their review during a recess. Following the recess, the objection to the tapes
was withdrawn.
¶12.
Having thoroughly reviewed the circumstances upon which Watkins bases this assignment of
deficient performance, we believe the true thrust of Watkins' argument is not that Hester failed to request
discoverable material but that Hester failed to fully review the information made available to him prior to
the eve of trial. These are two quite different things.
¶13.
As to the former, Watkins does not address what materials remained unavailable to him for use at
trial through some error of his attorney. There is no allegation that other evidence, undisclosed due to
counsel's negligence, exists. Counsel cannot be held ineffective for failing to request evidence which does
not exist.
4
¶14.
As to the latter, even were we to assume error on the part of Hester in failing to review the unedited
videotapes, we can find no prejudice to the appellant as a result. After viewing the videotapes, the
objection to them was withdrawn. Whatever exculpatory evidence counsel was led to believe existed in
fact did not exist. We cannot see how the outcome of the trial would have differed from the result
achieved.
2. Severance
¶15.
Watkins next argues trial counsel should have requested a severance of the two charges against
him. He suggests that having to defend two identical crimes prejudices him in the eyes of the jury for,
having seen him commit one crime, the burden of proof is lowered so that a jury will convict on the second
charge despite deficiencies in the evidence presented.
¶16.
The reasoning employed by Watkins is the basis of the refusal to allow the prosecution of separate
and distinct crimes in a single proceeding. Corley v. State, 584 So. 2d 769, 772 (Miss. 1991). However,
where two or more offenses are based on the same act or transactions, or more than one act or transaction
are connected together or which constitute part of a common scheme or plan, they may be prosecuted
together. Miss. Code Ann. § 99-7-2 (Rev. 2000).
¶17.
Watkins implies without stating explicitly that the two charges constitute separate transactions by
pointing out they occurred on different days, seventy-two hours apart. Had a motion to sever been made
below, the State would have been obliged to establish a prime facie case the charges fall within the scope
of the statute. Corley, 584 So. 2d at 772. The defendant would then need to rebut that showing. Id.
Because the claim arises from an allegation of ineffective assistance of counsel, Watkins bears the onus of
making that showing on appeal.
5
¶18.
There are three considerations when the charged offenses do not occur simultaneously: whether
the time separating the occurrences is insignificant, whether the evidence proving each count would be
admissible to prove each of the other counts, and whether the crimes are interwoven. Corley, 584 So. 2d
at 772. Watkins does not address any of these factors other than to state the crimes occurred on two
different dates. Allegations of error on appeal unsupported by either argument or authority are generally
not considered. Ramseur v. State, 368 So. 2d 842, 844 (Miss. 1979).
¶19.
We need not address this point but will do so briefly. Repeated sales of narcotics in a short span
of time have been held to constitute part of a common scheme or plan under the applicable statute. Ott
v. State,722 So. 2d 576, 581 (¶ 23) (Miss. 1998). This alone may be sufficient to establish a prime facie
case for the State. The length of time between the transactions is not excessive. Although time lapses of
two days have been held significant for purposes of simultaneous prosecution, in those instances, differing
crimes were involved, in different places and with different victims. See Gray v. State, 549 So. 2d 1316
(Miss. 1989); McCarty v. State, 554 So. 2d 909 (Miss. 1989). That is not the case here. Watkins was
charged with two counts of the same crime in the same general location to the same undercover officer
within seventy-two hours. We do not find the time period significant.
¶20.
Likewise, the evidence of each of the crimes would likely be admissible in both instances. Under
similar facts, evidence of other crimes would satisfy the balancing test of Rule 404(b) of the Mississippi
Rules of Evidence, for the purposes of showing intent, preparation or plan. Ott, 722 So. 2d at 576 (¶ 24).
Again, Watkins gives no argument why this would not be so. Finally, as in Ott, the second purchase of
cocaine from Watkins, while serendipitous in timing, was a direct result of knowledge gained during the first
buy. Officer Ost knew Watkins would sell her crack cocaine. This has been held to satisfy the requirement
that the crimes be interwoven. Id. (¶ 25).
6
¶21.
There is no evidence to even suggest a basis for severance of the charges. Any motion to do so
would have been specious and we cannot find deficiency in an attorney who declines to make frivolous
motions.
3. Prior convictions
¶22.
Watkins third assignment of deficiency states trial counsel should have sought a pre-trial motion in
limine or other ruling to prevent the prosecution from using his prior convictions against him at trial as
impeachment material. He opines that he may have testified had he been given some assurance the prior
convictions would not be raised against him.
¶23.
As a preliminary matter, we note Watkins was indicted as an habitual offender. "Habitual offender"
is a status, not a crime itself, which may result in an enhanced sentence upon conviction of a crime. Gray
v. State, 605 So. 2d 791, 793 (Miss. 1992). The State is required to prove the existence of two prior
felony convictions to support the indictment. Davis v. State, 680 So. 2d 848, 851 (Miss. 1996).
However, introduction of evidence of prior crimes is ordinarily not admissible to prove the character of the
accused in order to show he acted in conformity therewith. M.R.E. 404(b). It may be introduced to show
proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident. M.R.E. 404(b).
¶24.
Watkins' prior convictions were for possession of cocaine and burglary of a business, both in
August 1993, and possession of a controlled substance in February 1999. The burglary is clearly an
unrelated charge and the narcotics convictions too remote in time to have any legitimate legal connection
with the 2002 charges. Introduction of this evidence by the State would almost undoubtedly be solely for
the purpose of showing Watkins' character, an improper use of the information.
7
¶25.
However, the State did not attempt to introduce this information during the trial. What Watkins
appears to argue is that he could have testified on his own behalf if he had been assured his past would not
catch up with him. The ability to avoid this was solely within Watkins' control. A defendant may be crossexamined on prior bad acts if he opens the door to such queries by essentially testifying he has lived a
wholly blameless life. Collins v. State, 734 So. 2d 247, 249 (Miss. Ct. App. 1999). The State could not
itself raise the issue. All Watkins had to do to avoid impeachment with his prior convictions was refrain
from perjuring himself on the stand.
¶26.
Any motion made to exclude reference to prior convictions would have been an empty gesture,
merely reminding the court and the State that the Rules of Evidence apply. This, too, would have been a
frivolous motion.
4. Voir dire
¶27.
Watkins now objects to a question posed by the prosecution during voir dire. That question was,
"Is there anyone here that thinks our law enforcement agencies are turning a blind eye to the drug problem?
Does anybody here feel that they're not doing enough to fight crime, drug abuse?" Two persons, neither
of whom ultimately served on the jury, stated they felt this way.
¶28.
Watkins suggests this was an improper urging to potential jurors to return a verdict reflective of the
consciousness of the community. Such exhortations to "send a message" are improper. Bigner v. State,
822 So. 2d 342, 352 (¶ 45) (Miss. Ct. App. 2002). Although most commonly occurring during closing
arguments, it is not inconceivable a venire may be primed during voir dire by such statements. However,
when reading the paragraphs preceding and following this statement, the prosecution was not attempting
to influence the jury but rather ascertain whether any veniremen held a bias or prejudice against law
enforcement. There is no other logical context in which the question can be placed upon a review of the
8
entire voir dire rather than a single page. Again, there was no legitimate basis for objection by counsel to
this.
5. Improper testimony
¶29.
The fifth allegation of deficient performance relates to the testimony of Gary Ponthieux for failing
to object to testimony about which Ponthieux had neither personal knowledge nor qualification as an expert
witness. Watkins alleges Ponthieux testified he could not remember the drug sale about which he was
testifying and the detective should not have been allowed to make an identification of Watkins since he was
not present at the alleged drug sale nor a qualified expert on making identifications.
¶30.
The charge that Ponthieux could not remember the events of May 2002 is a mischaracterization
of the testimony. What Ponthieux could not recall was that the plan had been named Operation Rock
Garden. Ponthieux testified only to what he personally performed, such as taking custody of the cocaine
from Ost and sealing it in an evidence bag, or that which he witnessed, either through the audio feed in the
vehicle or upon viewing the videotape shortly after the sale. He testified to recognizing Watkins on the
videotape as "Old School" then retrieving a photograph and showing it to Ost, who positively identified
Watkins as the man who had sold her crack cocaine. This latter portion was established through the direct
testimony of Ost. Ponthieux also testified that the person he saw on the videotapes was present in the
courtroom and identified that individual as the appellant. The remainder of his testimony was explanation
of the procedures of the narcotics task force and handling of evidence by the police department.
¶31.
None of this exceeds the scope of Ponthieux's personal knowledge. Nor was his identification of
Watkins as the man on the videotapes an event which required expert qualification, but an ordinary
identification. There was nothing objectionable in this testimony.
6. Jury instructions
9
¶32.
The appellate argument on this matter follows:
The Defendant's attorney offered no jury instructions at trial and this was found to be
further error potential evidence of ineffective assistance of counsel in Bigner at 353;
Yarborough at 662. The Defendant could have taken a different strategy at trial and
contested the identification of the Defendant and offered a identification issue at trial . . ..
Defendant's attorney made a lack of evidence argument and moved for a directed verdict
at the close of the State's case, then did not renew his request for directed verdict and
offered no peremptory instruction at the close of all the evidence.
¶33.
Although requesting a peremptory instruction is almost a matter of due course in a trial, the well-
settled rule is that instructions must have some basis in evidence before they may be given. Fairchild v.
State, 459 So. 2d 793, 800 (Miss. 1984). In reviewing the propriety of a peremptory instruction, the court
accepts as true evidence submitted by the State and the reasonable inferences of that evidence. Wall v.
State, 718 So. 2d 1107, 1111 (¶ 15) (Miss. 1998).
¶34.
The evidence in this case would not have supported a peremptory instruction. The sales of drugs
were recorded and an eyewitness testified consistently with the recordings. Taking this as true, Watkins
would not have been entitled to a peremptory instruction.
¶35.
For the same reason, there was no basis in the record for the second instruction flaw to which
Watkins alludes, that is, a mistaken identity instruction should have been requested. The videotapes were
very clear in both audio and visual quality. The failure to attempt to obtain an identity instruction under the
circumstances here is at most harmless given the overwhelming proof.
¶36. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF TWO COUNTS OF TRANSFER OF NARCOTICS AND SENTENCE ON
EACH COUNT OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER WITH SAID
SENTENCES TO RUN CONCURRENTLY IS AFFIRMED. COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
10
11
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.
