DATE OF JUDGMENT: 02/10/95 TRIAL JUDGE: HON. JAMES W. BACKSTROM COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: BOTH APPELLANTS ADJUDGED GUILTY ON BOTH COUNTS. THOMAS WAYNE HAMM WAS SENTENCED TO PAY A FINE OF $100,000, TO PAY A LAB FEE OF $125, AND TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE AND TO PAY A FINE OF $10,000, TO PAY A LAB FEE OF $125, AND TO SERVE THREE YEARS FOR POSSESSION OF METHAMPHETAMINE WITH BOTH SENTENCES TO RUN CONCURRENTLY. APPELLANT TERRI WRIGHT HAMM WAS SENTENCED TO PAY A FINE OF $10,000, TO PAY A LAB FEE OF $125 AND TO SERVE FIVE YEARS FOR POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE AND TO PAY A FINE OF $1,000, TO PAY A LAB FEE OF $125, AND TO SERVE THREE YEARS FOR POSSESSION OF METHAMPHETAMINE WITH BOTH SENTENCES TO RUN CONCURRENTLY.
Before Bridges, C.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, J., For The Court
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
NATURE OF THE CASE: CRIMINAL -- POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE AND POSSESSION OF METHAMPHETAMINE
The grand jury of Jackson County returned a two-count indictment against the appellants, Thomas Wayne Hamm and Terri Wright Hamm, husband and wife. Count I of the indictment charged the Hamms with possession of more than one kilogram of marijuana, a controlled substance, with intent to distribute, and Count II of the indictment charged them with possession of methamphetamine, a controlled substance. The Hamms were tried together, and the jury found them guilty of both counts of the indictment. The trial Judge sentenced Thomas Hamm to serve twenty years in the custody of the Mississippi Department of Corrections and to pay a fine of $100,000 on Count I and to serve three years in the custody of the Mississippi Department of Corrections and to pay a fine of $10,000 on Count II. Hamm's three year sentence for Count II was to run concurrently with the twenty-year sentence for Count I. Terri Hamm was sentenced to serve five years in the custody of the Mississippi Department of Corrections and to pay a fine of $10,000 on Count I and to serve three years in the custody of the Mississippi Department of Corrections and to pay a fine of $1,000 on Count II. Her sentence to serve three years on Count II was to run concurrently with her sentence to serve five years on Count I. Terri Hamm has filed her separate appeal in which she has presented to this Court for its review and resolution eight issues. In his appeal, Thomas Hamm has presented seven issues for our review and resolution and has joined in all issues which his wife has presented to this Court in her appeal pursuant to Rule 28(i) of the Mississippi Rules of Appellate Procedure. *fn1 However, we resolve all of their issues against the Hamms and affirm the trial court's judgments of their convictions and their sentences.
We quote the Hamms' issues verbatim from their briefs:
A. Thomas Wayne Hamm's Issues
I. THE JURY'S VERDICT WAS IN ERROR DUE TO THE FACT THAT NO CREDIBLE EVIDENCE WAS PRESENTED PROVING BEYOND A REASONABLE DOUBT THAT THE APPELLANT HAD DOMINION AND CONTROL OVER THE CONTRABAND IN QUESTION.
II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE DUE TO THE FACT THAT THE APPELLANT'S ALLEGED CONSENT WAS NOT FREELY, KNOWINGLY AND VOLUNTARILY GIVEN.
III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED DURING THE SEARCH CONDUCTED PURSUANT TO THE AUTHORITY GIVEN TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION BY STATUTE WHICH VIOLATES THE APPELLANT'S CONSTITUTIONAL RIGHTS.
IV. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO INTRODUCE VARIOUS ITEMS ALLEGED TO BE INVOLVED IN DRUG ACTIVITY WITHOUT SUBSTANTIATION OF THIS FACT.
V. THE TRIAL COURT ERRED IN ALLOWING APPELLANT'S MOTION FOR MISTRIAL WHEN THE PROSECUTOR IMPLIED DURING CLOSING ARGUMENTS THAT DEFENSE COUNSEL HAD ATTEMPTED TO HIDE EVIDENCE FROM THE JURY.
VI. THE TRIAL COURT ERRED IN ALLOWING A NOTE ALLEGEDLY FOUND ON THE APPELLANT INTO EVIDENCE WHILE THE AUTHOR OF THE NOTE WAS UNKNOWN AND AN ILLEGIBLE AND UNSUBSTANTIATED COPY WAS ADMITTED INTO EVIDENCE.
VII. THE APPELLANT'S SENTENCE WAS DISPROPORTIONATE TO THAT OF HIS CO-DEFENDANT AND THIS MATTER SHOULD BE REMANDED FOR RESENTENCING.
VIII.THE APPELLANT HEREBY JOINS IN ON ALL ISSUES RAISED BY THE CO-DEFENDANT, TERRI WRIGHT HAMM, AND INCORPORATES ALL PLEADINGS CONTAINED IN THAT APPEAL BY REFERENCE HERETO UNDER MISSISSIPPI SUPREME COURT RULE 28(i).
B. Terri Wright Hamm's Issues
I. WHETHER THE JURY'S VERDICT WAS IN ERROR SINCE THERE WAS NO CREDIBLE EVIDENCE OF MRS. HAMM'S ACTUAL POSSESSION AND CONTROL OF THE CONTRABAND.
II. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION TO SUPPRESS EVIDENCE WITHOUT MRS. HAMM'S HAVING THE ABILITY TO CONSENT TO THE SEARCH OR CONTROL OF THE CONTRABAND.
III. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION TO SUPPRESS EVIDENCE BECAUSE MR. HAMM'S ALLEGED CONSENT WAS NOT FREELY AND KNOWINGLY MADE.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE SEARCH CONDUCTED WAS MADE WITHOUT PROPER CONSENT AND PROBABLE CAUSE.
V. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE SEARCH CONDUCTED PURSUANT TO THE AUTHORITY GIVEN TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION BY STATUTE VIOLATES MRS. HAMM'S CONSTITUTIONAL RIGHTS.
VI. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR DURING HIS CLOSING ARGUMENT IMPLIED THAT DEFENSE COUNSEL WAS ATTEMPTING TO HIDE THE TRUTH FROM THE JURY BY MAKING AN OBJECTION.
VII. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING MRS. HAMM'S JURY INSTRUCTIONS NUMBERS D2-13, D2-14, AND THE LAST PARAGRAPH OF D2-12.
VIII.WHETHER THE TRIAL COURT ERRED IN ALLOWING A NOTE ALLEGEDLY FOUND ON MR. HAMM FROM BEING ADMITTED INTO EVIDENCE WHEN THE AUTHOR OF THE NOTE WAS UNKNOWN AND A COPY WAS PRESENTED, AND NOT THE ORIGINAL.
On the evening of August 26, 1993, Sergeant Howard E. Potts and Captain Randy Sibley, both of Troop K of the Mississippi Highway Patrol (MHP), were working on a radar detail in conjunction with Inspector Robert Bruce Ford, Jr., and Inspector Wayne Dupont with the Mississippi Public Service Commission (MPSC) on Interstate 10 in Jackson County, Mississippi. The MPSC and MHP's joint activity was a federally-funded operation in which MHP officers would stop a speeding eighteen-wheel tractor-trailer truck as a precursor to MPSC inspectors' inspection of the stopped eighteen-wheeler and its cargo to insure that the truck was operating lawfully.
At approximately 10:30 p.m. that night, Sergeant Potts and Captain Sibley, who waited in Sergeant Potts's patrol car beside Interstate 10 in Jackson County, used a radar device to measure the speed of an eighteen-wheel tractor-trailer truck, which was traveling east on Interstate 10, at 71 miles per hour. The speed limit was 65 miles per hour. Thomas Hamm was driving, and his wife, Terri Hamm, was riding in the right seat of the speeding truck. Rather than stop the truck, the state troopers waited until Hamm drove it into the Orange Grove weighing station off the south side of the Interstate, where MPSC Inspectors Ford and Dupont were waiting.
As Hamm drove his rig onto the scales, Sergeant Potts pulled his patrol car beside Hamm's truck and signaled the scales' operator to turn on a certain light which directed Hamm to drive his rig around to the rear of the scales building so that Inspectors Ford and Dupont might inspect the truck to determine if Hamm was lawfully operating it. At first Sergeant Potts saw only the driver in the Peterbilt truck, but after the truck pulled around the scales building and stopped over a pit, which could be used by the inspectors to inspect its bottom, Potts saw that Terry Hamm was riding in the passenger's seat of the truck. Captain Sibley issued a warning citation for speeding to Thomas Hamm, who owned both the Peterbilt and the trailer which it was pulling. After Sibley issued the warning citation to Hamm, Inspector Ford began his inspection of Hamm's rig.
Ford obtained from Thomas Hamm the paperwork which Ford knew that state and federal law required Hamm to have. Included in this paperwork were five bills of lading for Hamm's load of limes and mangoes, which were bound for destinations in Jacksonville and Tampa, Florida. In keeping with his usual custom, Ford asked Hamm if he had a weapon on the truck. Hamm replied, "Well, I have a shotgun," and he produced a sawed- off shotgun for Ford's inspection. After Ford had taken Hamm's "paperwork" to his MPSC car to begin his inspection of it, he recalled that Sergeant Vernon A. Gazzo was working Interstate 10 that night. Ford radioed Gazzo, who was near the Alabama state line, to request his help in establishing whether Thomas Hamm's sawed-off shotgun was of legal length. Gazzo arrived quickly at the weighing station, measured and inspected the shotgun, and determined that it was of legal length.
Because Gazzo noticed that Hamm was nervous and sweating and "missed gaps in what he was telling ," he asked Hamm for permission to search his Peterbilt. Hamm gave his permission for Gazzo to search his truck, but advised Gazzo that his wife was in the truck with him. Gazzo then asked Terri Hamm if she would step down from the truck, and both Thomas Hamm and Gazzo then walked to the passenger's side of the truck. When Terri Hamm stepped down from the truck, Gazzo saw in plain view, between the seats, what he recognized to be a one-foot square cutting board, about one inch thick, with a single-blade razor blade and a gray tube lying "right there with it." Once inside the truck, Gazzo searched the closet in the sleeper behind the truck seats, where he found a red tin can. When Gazzo removed the top from the tin, he found an amount of marijuana, which he estimated to weigh "under an ounce" inside the tin.
Inspector Ford, who had been in his MPSC car while he completed his inspection of Hamm's paperwork, heard Gazzo say that there was a cutting board lying on the floor of the truck and that he had found two cigarette butts, which he believed were marijuana, in the ashtray inside the truck. Ford and Inspector Dupont walked from their car to Thomas Hamm and asked Hamm to open the trailer, the doors of which were locked with a padlock. The trailer was a "reefer," or a refrigerated trailer. Hamm unlocked the padlock with his key. Inspector Ford asked Inspector Dupont to enter the trailer to inspect the load for blocking and bracing and to determine if Hamm's load matched Hamm's bills of lading. Another purpose of Dupont's inspection was to insure that the trailer contained no hazardous material.
In the very front of the trailer and in front of a load of limes, which two of the officers were to testify were spoiled, rotten, and molded, Dupont discovered four U-Haul pasteboard boxes, one of which was partially opened but all of which were damp with condensation which had occurred inside the reefer. Inside the four boxes were several packages of marijuana, each of which had been wrapped in heat-shrunk, transparent wrap. When Dupont discovered what was later determined to be 196 pounds of marijuana, he yelled to Inspector Ford, "Put Mr. Hamm under arrest. There is what appears to be marijuana in the front of this truck in U- Haul boxes."
Ford handcuffed Hamm, and Sergeant Potts advised Hamm of his right not to incriminate himself. The officers found a note which contained various dollar figures, numbers, and the terms "lbs.", "1-key", and "71 grams crank". Where the note was found is disputed by Thomas Hamm. After the officers had arrested both Thomas and Terri Hamm, Sergeant Potts drove Hamm's rig to John Fayard Fast Freight, a truck-freight yard in Gulfport, where he left it for the night. The next morning, Sergeant Potts returned to complete the search of the trailer. After the last of the produce was removed from the trailer's far end, Potts discovered a small brown box wrapped in gray duct tape. Potts opened it and found two powdery substances inside, one of which was methamphetamine according to an analysis which Timothy P. Gross, an employee of the State Crime Laboratory, conducted. Potts also found in the trailer a bundle which contained approximately $6,000 worth of currency.
From the foregoing events came the Hamms' joint indictment, trial, conviction, and respective sentences as we related them. We later review those portions of the trial which we find relevant to each of the issues which the Hamms have presented in their separate appeals for our review, analysis, and resolution.
III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
This Court elects to review the Hamms' issues in the approximate order in which they would have arisen during the course of their trial. Their issues concern: (1) the search of Thomas Hamm's Peterbilt truck and trailer, (2) the admissibility of certain items into evidence, (3) jury instructions which Terri Hamm requested but the trial Judge refused, (4) prosecutorial misconduct during closing argument, (5) the sufficiency of the evidence to support the jury's verdicts of the Hamms' guilt, and (6) the disproportionality of the Hamms' sentences.
B. The search of the truck's cab and the trailer
1. Thomas Hamm's consent to search his truck
We first address Thomas Hamm's second issue and Terri Hamm's third and fourth issues. Thomas Hamm argues that "at the time of this alleged consent, ppellant had not been informed of his constitutional rights and was surrounded by five or more armed and uniformed police officers at the scene." Thus, he concludes that there "is clear and convincing evidence that if in fact any consent was elicited from , it was coerced through duress." He cites but two cases to support his position on this issue, and they are Schneckloth v. Bustamonte, 412 U.S. 218 (1973) and Jones v. State, 607 So 2d. 23 (Miss. 1991). Terri Hamm elaborates somewhat on this argument by adding that her husband's consent was coerced because "Mr. Hamm did not know that he could have refused the search." Mrs. Hamm cites the same two cases in her brief that her husband cites and no others.
In Schneckloth the United States Supreme Court upheld a consent to search an automobile during a street encounter in which no Fourth Amendment warnings were given. The Supreme Court explained:
t would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime.
Schneckloth, 412 U.S. at 231-32. In Jones, the Mississippi Supreme Court quoted the foregoing portion of the Schneckloth opinion and then explained:
Consideration must be given to whether the circumstances were coercive, which necessitates attention to whether the person was confronted with many officers or a display of weapons, whether he was in custody and, if so, whether the circumstances of the custody were coercive, and whether the alleged consent was obtained in the course of stationhouse interrogation.
During the prosecutor's direct examination of Inspector Wayne Dupont, the State moved to admit into evidence the 196 pounds of marijuana, shrink-wrappings taken from the packages of marijuana, the methamphetamine which were found in the trailer, and the cutting board, razor blade, tube, and tin can and contents which MHP Sergeant Gazzo discovered in the cab of Thomas Hamm's Peterbilt. Counsel for both Thomas and Terri Hamm objected to the introduction of the items, and the trial Judge conducted what was in effect a suppression hearing on whether they were admissible. The Hamms' counsel argued that these items were the fruit of an illegal search and seizure of Thomas Hamm's truck because Thomas Hamm's consent to Sergeant Gazzo's search had not been given freely and voluntarily. Counsel argued that Thomas Hamm's consent could not be free and voluntary because Sergeant Gazzo requested Hamm's consent in the presence of four or five armed law enforcement officers. They further argued that Hamm did not know that when Sergeant Gazzo asked for his consent to search, Hamm could refuse to give Gazzo his permission.
Neither Thomas nor Terri Hamm testified during their counsel's arguments in support of their motion to suppress the introduction of these items into evidence. Thus, the record contains no evidence that Thomas Hamm felt coerced or intimidated by the presence of the armed MHP and MPSC officers and inspectors. Neither does the record contain Hamm's testimony that he would not have permitted Sergeant Gazzo to search the cab of his truck if he had understood that Gazzo could not search it without his permission. During the State's earlier direct examination, Ford testified without objection: "Officer Gazzo asked Mr. Hamm, `Do you care, ...