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JEROLD WAYNE SMITH v. STATE OF MISSISSIPPI

MAY 25, 1988

JEROLD WAYNE SMITH
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Jerold Wayne Smith was tried and found guilty of possession of a controlled substance by the Circuit Court of Harrison County, Mississippi. He was sentenced to life in the custody of the Mississippi Department of Corrections as an habitual offender. He now assigns three errors on this appeal:

I. That the trial court erred in failing to sustain the defendant's motion for a directed verdict;

 II. That the trial court erred in failing to protect defendant's equal protection right of a fair trial by over cautioning defendant's witness; and

 III. That the trial court erred in not allowing the defendant's jury instruction, 13-S.C., D-3 on the presumption

 of innocence.

 On March 18, 1985, Smith and one Catherine Mae Wilson were arrested at the Red Carpet Inn in Gulfport, Mississippi, pursuant to valid arrest warrants. The controlled substance found was Demerol, a substance illegal to possess except by prescription.

 The defense consisted only of the testimony of Patrolman Steven Barnes who escorted Smith from the Red Carpet Inn to his patrol car and testified that Smith was able to walk to the car and respond to the one question he asked him and Catherine Mae Wilson, a co-defendant, who pled the Fifth Amendment after stating her name.

 I.

 DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN SMITH'S MOTION FOR DIRECTED VERDICT?

 The motion for directed verdict is based upon the argument that the prosecution failed to prove two essential elements of the crime: (1) possession of a controlled substance and (2) absence of a prescription.

 Instruction S-2 given by the trial judge is identical to the instruction quoted and approved by this Court in Breckenridge v. State, 472 So.2d 373 (Miss. 1985), and therefore there is no merit to the constructive possession argument.

 While it is not necessary to address Smith's second argument because he cites no authority to this Court, we will address it anyway. Mississippi Code Annotated, Section 41-29-148 (1) (1972) provides:

 It is not necessary for the State to negate any exemption in this article in any complaint, indictment, or other pleading or in any trial, hearing, or other proceeding under said article. The burden of proof of any exemption or exception is upon the person claiming it.

 This Court has commented on the operation of Section 41-29-148 as follows:

 Under 41-29-148, supra, the indictment need not" negate any exemption "but the

 burden of establishing any exemption is" upon the person claiming it. "As noted by Chief Justice Smith who wrote our opinion in Miller v. State, 105 Miss. 777, 63 So. 269 (1913), the fact of whether a defendant has a valid order or prescription is" peculiarly within his [the defendant's] knowledge "and in such event it" devolves upon him, and not the state, to establish "such an exemption. See also Falcon v. State, 226 So.2d 399 (Fla 1969), which held in a similar situation that the state" cannot be required to prove the nonexistence of each exception. "

 Bryant v. State, 427 So.2d 131, 133 (Miss. 1983). Therefore, this assignment of error is without merit.

 II.

 DID THE TRIAL COURT ERR IN FAILING TO PROTECT SMITH'S EQUAL PROTECTION RIGHT TO A FAIR TRIAL BY OVER CAUTIONING THE DEFENDANT'S WITNESSES?

 At Smith's suppression hearing one day prior to trial in chief, Karen Young, counsel for Catherine Wilson, Smith's severed co-defendant, informed the court that Wilson, if called to testify, would invoke her privilege against self incrimination. At the close of the State's case the following day the court was informed by defense counsel that Wilson wished to testify on Smith's behalf after which the following occurred: *fn1

 MS. CALDWELL: Judge, there's one other matter. I've been advised by Mr. Smith that Catherine Wilson now desires to testify on his behalf. In light of the fact that her attorney was in here yesterday saying she wanted her to take the fifth, I think maybe we should get Ms. Young over here because she does want to testify.

 THE COURT: Have you talked to Ms. Wilson?

 THE DEFENDANT: She mentioned it to me this morning.

 MS. CALDWELL: She's also mentioned it to me, your Honor, that she would -

 THE DEFENDANT: I have not talked to her at length.

 THE COURT: Is she in the holding cell?

 MR. BURDICK: I don't think so.

 THE COURT: If she's in there, bring her out right now. (to the bailiff)

 THE DEFENDANT: I think she's in there. (Whereupon Catherine Wilson was brought into the courtroom, and the following proceedings were had regarding her testifying:)

 THE COURT: Your name is Catherine May Wilson?

 MS. WILSON: Yes, sir.

 THE COURT: It's obvious in the case before the Court at present that you're a codefendant in the charge against Jerold Wayne Smith. I was advised yesterday afternoon through your counsel, Karen Young, that if called as a witness, you would invoke the fifth amendment. I was advised a few minutes ago by counsel for Mr. Smith and Mr. Smith, himself, that you indicated to them that you may wish to not invoke the fifth amendment and testify.

 MS. WILSON: Yes, sir.

 THE COURT: Is that ...


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