Walker v. State
| Docket Number: | 2005-KP-00611-COA Linked Case(s): 2005-KP-00611-COA ; 2005-CT-00611-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: Southwick, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of marijuana & Possession of cocaine - Suppression of evidence - Jury instructions - Overruled objections - M.R.E. 611 - Ineffective assistance of counsel Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-09-2005 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: JAMES T. KITCHENS, JR. Disposition: CONVICTED OF COUNT I, POSSESSION OF MARIJUANA MORE THAN 30 GRAMS BUT LESS THAN 250 GRAMS - SENTENCED TO THREE YEARS AND FINED $1,000; COUNT II POSSESSION OF COCAINE MORE THAN 30 GRAMS - SENTENCED TO TWENTY-TWO YEARS AND FINED $1,000 WITH FIVE YEARS’ POST-RELEASE SUPERVISION - TO RUN CONSECUTIVELY FOR A TOTAL OF TWENTYFIVE YEARS TO SERVE AND FIVE YEARS’ POST-RELEASE SUPERVISION ALL IN THE CUSTODY OF MDOC District Attorney: FORREST ALLGOOD Case Number: 2004-106-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Dontay Walker |
DONTAY WALKER (PRO SE) |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Possession of marijuana & Possession of cocaine - Suppression of evidence - Jury instructions - Overruled objections - M.R.E. 611 - Ineffective assistance of counsel |
| Summary of the Facts: | Dontay Walker was convicted of possession of marijuana and possession of cocaine. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Suppression of evidence Walker argues that the deputy did not have probable cause to stop the vehicle and therefore the evidenced seized should have been suppressed at trial. The action of an officer stopping a vehicle is reasonable when there is probable cause to believe that a traffic violation has occurred. Probable cause for a traffic stop may arise from an officer’s reasonable belief that windows of the vehicle are excessively tinted in violation of law. Therefore, the stop was a valid one. Issue 2: Jury instructions Walker argues that the trial court erred in refusing to grant certain jury instructions. The first is a cautionary instruction. Granting a cautionary instruction due to the testimony of an accomplice who is not being tried with the defendant is within the discretion of the trial court. The instruction should be given when the witness is in fact an accomplice, but only if the testimony is uncorroborated. Here, the presence of the other person in the vehicle alone is insufficient to classify him as an accomplice. The second disputed instruction rejected by the trial court would have allowed the jury to consider the lesser offense of possession of less than one ounce of marijuana. The only evidentiary basis for the instruction that he possessed less than an ounce was that he had not paid enough to have bought an ounce. The laboratory report indicated that the marijuana found under Walker’s seat weighed over one ounce. Denial of the instruction was proper. The third jury instruction Walker argues was erroneously refused is an instruction requiring the jury to return a verdict of not guilty. However, the facts support the finding of the jury that Walker was in constructive possession of the package containing the contraband, and that he knew the package contained those substances. Denial of a peremptory instruction was appropriate. Issue 3: Overruled objections Walker argues that some questions asked by the prosecution during cross- examination were leading and his objections were improperly overruled. The comments to M.R.E. 611 make clear that leading questions may not be proper during cross-examination when it is cross-examination in form only. Here too, the label of cross-examination is mere form. Issue 4: Ineffective assistance of counsel Walker argues that his counsel failed to object and preserve for appeal issues relating to the testimony of an officer. Walker does not articulate what prejudice resulted from his defense counsel failing to make an effort to exclude the testimony. Walker also argues that his counsel failed to attack thoroughly a witness’s actions and testimony. Again, Walker does not articulate how he was prejudiced by the alleged deficiency of his counsel. |
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