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BRUCE ALLEN BOCHES v. STATE OF MISSISSIPPI

FEBRUARY 18, 1987

BRUCE ALLEN BOCHES
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., ROBERTSON & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Bruce Allen Boches was convicted of felony possession of more than one (1) kilogram of marijuana with intent to sell, transfer, and distribute the same. He was sentenced to serve twelve (12) years in the Mississippi Department of Corrections and fined $30,000.00. Boches

appeals to this Court assigning eleven errors.

 On July 13, 1982, the Mississippi Highway Patrol in conjunction with the Alcorn County Sheriff's Department set up a roadblock outside Corinth, Mississippi, in Alcorn County to check tags, inspection stickers and drivers licenses. About 7:30 that evening two cars approached the roadblock but pulled over in a driveway before reaching the check point. Within minutes both cars pulled out and a white Pontiac driven by Boches headed in the direction from whence it came, away from the roadblock.

 Highway Patrolman Hubert McDaniel left the roadblock in order to investigate the white Pontiac. He stopped the Pontiac and noted that it had a valid Mississippi substitute license plate and a valid inspection sticker. Boches produced a valid Tennessee driver's license but could not produce any ownership papers. McDaniel testified that he determined to investigate whether or not the Pontiac was stolen and also, he detected a strong odor of unburned marijuana inside the car. As a part of his duties as a patrolman McDaniel was taught to recognize the smell of marijuana but admitted that a person not familiar with such smell or one who had not smelled the substance before probably would not recognize it. McDaniel then placed Boches in his patrol car and drove him to the roadblock to pick up Officer Harold Holder.

 Holder was carried to pick up the Pontiac and return it to the roadblock. He testified that once he got in the automobile he detected a strong odor that appeared to be raw marijuana. He also said the car steered sensitively as if it were weighted down in the back. According to Holder, when he returned the Pontiac to the roadblock Boches consented to a search of the interior of the vehicle in an effort to locate the ownerhip papers. No ownership papers were found but an airplane ticket to Miami from Memphis was found. Holder then drove the Pontiac to the Alcorn County Jail and the investigation was turned over to Charlie Goforth.

 Boches related an entirely different version of this incident. He testified that when they arrived at the roadblock he told the officers that the ownership papers might be in the glove compartment but he never consented to a search of the vehicle. He further said the officers opened the trunk of the vehicle while they were at the roadblock but all the officers present at the scene denied that they opened the trunk at that location. Charlie Goforth, Jr. testified that once the

 automobile arrived at the jail a search warrant was secured and three large bales of marijuana were found in the trunk. Goforth testified that these bags were partially opened and that he smelled the odor before and after he opened the trunk.

 Boches testified that his roommate, Donnie Wayne Floyd, called him from Miami and offered to pay him $300.00 to drive a sick friend's car back to Memphis. Boches then flew to Miami and Floyd took him directly to the automobile. The two men convoyed back to Memphis stopping only for gas and food. Boches claimed that he knew nothing about the contents of the trunk and he did not smell anything peculiar on the trip. Boches also said their car did not steer funny or feel unusually sensitive.

 Boches testified that as they approached the roadblock, Floyd motioned for Boches to pull over and told him that the registration and title were not in the car and therefore Boches should find an alternative route around Corinth. Boches did not question Floyd about this and added that he did not know then nor did he know at the time of the trial who owned the vehicle.

 I.

 WAS IT ERROR TO DENY A MISTRIAL WHEN THE PROSECUTOR QUESTIONED BOCHES CONCERNING

 OTHER CRIMINAL CHARGES?

 The defendant took the stand and during the course of direct-examination by his own attorney was questioned as follows:

 Q. Mr. Boches, have you ever been a dealer or seller of marijuana?

 A. No.

 Q. Have you ever been convicted of any crime involving drugs of any kind?

 A. No, sir.

 Q. Ever been convicted of any crime whatsoever?

 A. No, sir.

 On cross-examination the prosecutor questioned the defendant and objection was made and sustained as follows:

 Q. You testified on direct examination that you have never been convicted of any drug violation. You are not suggesting to us, are you, Mr. Boches, that you have never been involved with drugs, are you?

 A. Never been involved?

 Q. Yes, sir.

 A. How do you mean?

 Q. Well, sir, you tell me. Are you suggesting to this jury that you had no prior involvement in drug traffic?

 BY MR. SMITH: We object to the form of the question. Whether or not he's participated in drug traffic, convicted for it or whatever it is. I think he's entitled to know what involved means. Does it mean he's smoked a joint or does it mean that he's been convicted of a violation?

 BY JUDGE GARDNER: All right, counsel.

 BY THE WITNESS: I will answer the question, if counsel wants me to.

 BY JUDGE GARDNER: All right.

 BY MR. BOWEN: (continuing)

 Q. Have you ever been charged with a drug violation?

 BY MR. SMITH: We object.

 BY JUDGE GARDNER: Sustained.

 BY MR. BOWEN: Your Honor, I have nothing further ...


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