Pittman, P.j., McRAE And Mills, JJ.
The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court
DATE OF JUDGMENT: 10/10/96
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 9/10/98
MOTION FOR REHEARING FILED: MANDATE ISSUED:
¶1. Steve Martin was indicted in a two count indictment by the Grand Jury in Scott County for possession of morphine, in violation of Miss. Code Ann. § 41-29-139(c)(1) (1993), and possession of marijuana greater than one ounce, in violation of Miss. Code Ann. § 41-29-139(c)(2)(C) (1993). Count I of the indictment pertained to the possession of morphine charge, while Count II pertained to the possession of marijuana greater than one ounce charge. The verdict of the jury read as follows: We, the jury, find the defendant, Steve Martin guilty as charged in Count I of the indictment.
We, the jury, find the defendant, Steve Martin, guilty (sic) possession of less than one ounce of marijuana.
We, the jury, find the defendant, Steve Martin, not guilty in Count II of the indictment.
¶2. Martin was sentenced to serve a term of two (2) years in the custody of the Mississippi Department of Corrections and to pay a fine of $2000.00 and all court costs, on his conviction of Count I. (possession of morphine). As to Count II (possession of marijuana less than one ounce), Martin was fined $200.00.
¶3. On October 10, 1996, the trial court denied Martin's motion for a new trial. Martin filed his Notice of Appeal the same day. Thereafter, Martin's counsel was contacted by jurors who had read about Martin's sentence for possession of morphine in the newspaper and who informed Martin's attorney that the verdict the jurors had intended to render on the morphine charge was "not guilty". On October 24, 1996, Martin's attorney filed a motion asking the trial court to set aside the judgment and to enter a judgment of acquittal because of the mistake in the verdict. Attached to that motion were the affidavits of all twelve jurors stating that a mistake had been made in regard to the verdict and asking the court to correct the mistake so as to reflect the true jury verdict. On December 5, 1996, the trial court denied Martin's motion to set aside the judgment.
¶4. On March 10, 1996, agents of the Mississippi Bureau of Narcotics served a search warrant on a trailer belonging to Steve and Karon Martin. Jimmie Nichols, an agent with the Mississippi Bureau of Narcotics, testified that he and three other agents, served the warrant. Nichols testified that Agent Harrison knocked on the door and announced that it was the police. Martin unlocked the door and was handed the warrant. Harrison testified that the agents told Martin that they were there to search for drugs.
¶5. At that point, Martin stated to the agents that he had a quantity of marijuana in the bathroom. He led the officers to the bathroom where he retrieved a metal pan which contained what the officers believed to be marijuana and paraphernalia. The officers then conducted a further search and found a small, black film canister containing what appeared to be marijuana.
¶6. Following this search, Nichols testified that he went back into the living room with the Martins where he advised them that they were being arrested for possession of marijuana. The Martins were then given their Miranda warnings. Subsequently, Nichols told the Martins that the agents were looking for a large quantity of morphine, to which Mr. Martin answered that they did not have a large quantity, but did have a small amount. Mr. Martin proceeded to the bedroom to look for the morphine, but was unable to locate it. He called for Mrs. Martin's help in finding it. Mrs. Martin retrieved a syringe containing morphine and handed it to Nichols.
¶7. Mr. Martin denied that the Miranda warnings were ever read to him at his home. Martin and his wife denied ever having any morphine in their house. Mr. Martin admitted that he had a small amount of marijuana in his possession, but stated that it was definitely less than one ounce.
¶8. Jamela Naron, a forensic scientist with the Mississippi Crime Lab, testified that the syringe sent to her "did, indeed, contain morphine". She further testified that State's Exhibit No. 5, which was marijuana, weighed 94.8 grams. State's Exhibit No. 6, which was the film canister containing marijuana, weighed 1.3 grams. Naron testified that there are approximately 28 grams in an ounce.
¶9. At trial, Mrs. Martin was acquitted of the only charge against her which was for possession of morphine. Mr. Martin was found of guilty of possession of morphine, guilty of possession of less than one ounce of marijuana, and not guilty of possession of more than one ounce of marijuana. It is from this jury verdict that Steve Martin appeals, assigning as error the following issues for this Court's review:
I. MR. MARTIN'S CONVICTION FOR POSSESSION OF MORPHINE SHOULD BE SET ASIDE, AND A JUDGMENT OF "NOT GUILTY" ENTERED IN ORDER TO REFLECT THE TRUE ...