Marvin Logan v. State of Mississippi ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CT-01158-SCT
MARVIN "BUTCH" LOGAN a/k/a MARVIN O. LOGAN
v.
STATE OF MISSISSIPPI
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 10/14/1996
TRIAL JUDGE: HON. MIKE SMITH
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ALBERT LIONEL NECAISE
WILLIAM ROSS CAPPS
ROBERT WARREN MOAK
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: DUNN LAMPTON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/21/2000
MOTION FOR REHEARING FILED: 5/30/2000
MANDATE ISSUED: 12/28/2000
EN BANC.
PRATHER, CHIEF JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted
therefor.
¶2. Marvin "Butch" Logan was convicted in the Lincoln County Circuit Court of seven counts of defrauding
the Mississippi Department of Public Safety and the Mississippi Tax Commission, under Miss. Code Ann.
§ 97-7-10 (1994), and five counts of uttering forgery, under Miss. Code Ann. § 97-21-59 (1994). The
Court of Appeals reversed and remanded for a new trial. This Court granted certiorari to address
evidentiary issues regarding consent searches, business records, and expert testimony.
FACTS AND PROCEEDINGS BELOW
¶3. Marvin Logan, an oil field service worker by trade, also operated a business rebuilding salvaged
Chevrolet and GMC pick-up trucks in his spare time. The business consisted of a small mechanic's shop
located behind his residence in Brookhaven, Mississippi. Logan purchased numerous trucks at salvage
auctions conducted statewide by different insurance companies. Over several years, Logan rebuilt over
seventy vehicles.
¶4. After Logan rebuilt a wrecked truck, he was required by Miss. Code Ann. § 63-21-15 (5) (Supp.
1999) to have it inspected by the State Highway Patrol so that a salvage certificate of title could be
requested. After the inspection approval, per Miss. Code Ann. § 63-21-39 (1996), the application for title
was made to the Mississippi State Tax Commission who in turn issued a salvage certificate of title.
¶5. Several other individuals also used Logan's shop to rebuild vehicles. In October of 1995, Johnny Joe
Gunnell, an individual who used Logan's shop, was stopped by the Brookhaven police for a traffic violation.
Gunnell was driving a stolen vehicle. Several more vehicles at Gunnell's house were found to be stolen, and
Gunnell directed authorities to Logan and his repair shop. Investigating officers made three visits to the
Logan work shop which visits are the subject of the first assignment of error and will be detailed in that
discussion. The third of these inspections occurred on February 14, 1996, when the police executed a
search warrant on Logan's residence. Upon searching his residence, the police seized four boxes of files
containing documents which were organized into separate folders for the various vehicles that Logan had
rebuilt over the years. On April 17, 1996, Logan was indicted by the Lincoln County grand jury on seven
counts of defrauding the Mississippi Department of Public Safety and the Mississippi Tax Commission, and
six counts of uttering forgery to the Mississippi Department of Public Safety when he submitted documents
to that Department for retitling seven automobiles that he had rebuilt.
¶6. On July 19, 1996, Logan filed a combined motion to suppress the evidence challenging the searches of
his home and shop and the requirement by the Highway Patrol that he bring them all vehicles in his
possession that he had rebuilt. At a hearing on July 19, 1996, the circuit court denied the motion to
suppress.
¶7. At trial, the jury found Logan guilty of twelve of the thirteen counts in the indictment. He was
subsequently sentenced to three years on each count to run consecutively, with the sentences in the last five
counts to run concurrent to the sentences in the first five counts. He was also fined $28,000 and ordered to
pay restitution in the amount of $37,500. On October 9, 1996, Logan filed a motion for a new trial which
the trial court denied. Being aggrieved, Logan perfected an appeal, which was assigned to the Mississippi
Court of Appeals.
¶8. Upon review of the decision reached in the trial court, the Court of Appeals, in a split decision, reversed
and remanded for a new trial. Logan v. State, No. 96-KA-01158-COA (Miss. Ct. App. Apr. 20, 1999).
A majority of the Court of Appeals found, among other things, that:
(1) There was no valid consent to the initial warrantless searches of Logan's business and property;
(2) An investigator was improperly allowed to authenticate documents from individual insurance
companies;
(3) An investigator was improperly allowed to testify concerning car repairs and metallurgy without
being qualified as an expert in either field, and;
(4) The prosecutor made improper comments during closing arguments which prejudiced the jury.
¶9. Four members of the Court of Appeals concurred in part and dissented in part, agreeing with a reversal
and remand for new trial but concluding that the evidence gathered in the searches of Logan's premises was
admissible.
¶10. Aggrieved by the judgment of the Court of Appeals, the State filed its petition for a writ of certiorari,
which was granted by this Court. An amicus curiae brief was received from the National Insurance Crime
Bureau (NICB) on certiorari.
ISSUES
I. Did the trial court err in allowing the introduction of evidence
seized during searches of Logan's home and shop?
¶11. "The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "The people shall be
secure in their persons, houses, and possessions, from unreasonable seizure or search." Miss. Const. art. 3,
§ 23 (1890).
¶12. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the United
States Supreme Court held that when determining whether consent to a warrantless search was given
voluntarily, the totality of the circumstances must be examined. In Jackson v. State, 418 So. 2d 827, 830
(Miss. 1982), this Court adopted that federal standard. "As a consequence of adopting the voluntariness
test for consent searches, the [United States Supreme] Court concluded that 'while the subject's knowledge
of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such
knowledge as a prerequisite to establishing a voluntary consent.' That is, consent may be established without
a showing that the police warned the consenting party of his Fourth Amendment rights or that he was
otherwise aware of those rights." Jones v. State ex rel. Miss. Dep't of Pub. Safety, 607 So. 2d 23, 27
(Miss. 1991) (citing Schneckloth, 412 U.S. at 249, 93 S.Ct. at 2059, 36 L. Ed. 2d at 875); see also
Graves v. State, 708 So. 2d 858, 863-64 (Miss. 1997).
¶13. Logan claims that the first search, in which investigating officers only conducted a visual inspection of
Logan's shop and did not seize any evidence, was an unconstitutional search in that it was not undertaken
with the informed consent of the property owner and was not authorized by a valid search warrant. Logan
urges that his wife's decision to permit the inspection was not voluntary since she was both uninformed as to
her right to refuse and intimidated by the presence of a large number of law enforcement officials who had
arrived unannounced and en masse. At trial, there was a lengthy inquiry into the circumstances that led Mrs.
Logan to permit the officers to walk through the shop, and there is no contention that she lacked authority
to consent to the inspection. The trial court did not find that Mrs. Logan was so intimidated by the presence
of these officers that she felt coerced or forced to permit the inspection against her will. In ruling on such
subjective matters, the trial judge is given wide discretion. Luton v. State, 287 So. 2d 269, 272
(Miss.1973). He observes the witnesses first hand, hears the evidence and then determines whether the
consent was, in fact, voluntary or not. Id. When his ruling is contested on appeal, an appellate court may set
aside that ruling only if that court is satisfied that the trial court was manifestly wrong in so deciding. White
v. State, 495 So. 2d 1346, 1347 (Miss.1986). This Court finds no manifest error in the trial court's ruling.
¶14. One of Logan's arguments rests on the proposition that Mrs. Logan was not affirmatively informed by
the officers of her right to decline the inspection of the premises. When the issue is the voluntariness of a
consent to search, there is no absolute requirement that the person receive a Miranda-like notification that
the person can refuse the officer's request, even though this Court has suggested that it will, using state
constitutional concerns, apply a stricter test of voluntariness than the United States Supreme Court does
under Fourth Amendment jurisprudence. Penick v. State, 440 So. 2d 547 (Miss.1983). According to the
Penick decision, there must be a dual determination of consent to search accompanied by a showing that
the consent was knowledgeable. Id. at 550.
¶15. In this case, after Mrs. Logan was requested to consent to an inspection of her husband's shop, she
declined to do so unless the officers agreed to remove a substantial number of the police cars parked at her
residence. The very act of attaching conditions to the consent to search and demanding compliance with the
conditions before the search began appears a strong indicator that Mrs. Logan understood that she was not
obligated to permit the officers to inspect the premises.
¶16. Logan's objection to the second search, which was also a consensual one, is not entirely clear. Logan
himself consented to this second search and, in fact, signed a written consent form in advance of the search.
Again, the issue of whether the consent was obtained through threats or coercion such that it was not, in
truth, voluntary is one committed primarily to the broad discretion of the trial court. This Court can find no
abuse of that discretion in the trial court's decision not to suppress evidence obtained in that search.
¶17. One of Logan's arguments against the third search, conducted under a search warrant, appears to be
that information improperly gleaned from the earlier searches of Logan's shop was used to establish
probable cause for the warrant. Logan's argument necessarily rests on the foundation that the earlier
searches were unconstitutional invasions of federal and state constitutional rights against unreasonable
searches and seizures. This Court rejects the charge of impropriety in the earlier searches. Since this third
search was conducted pursuant to a warrant obtained on probable cause, there is no arguable basis to
exclude any evidence seized during that search.
¶18. The third search was also attacked as having been conducted under an invalid warrant because its
scope was too broad to meet constitutional strictures. The Fourth Amendment states that a warrant must
describe "the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV
(emphasis added). The warrant permitted the search and seizure of documents relating to Logan's vehicle
repair and rebuilding activities conducted on his premises. Logan contends that this description of items to
be searched for in the warrant was too indefinite and did not accurately describe the documents and
records actually seized in the search or, in the alternative, described documents that could not possibly have
been evidence of the kind of crime then under investigation, i.e., the operation of a "chop shop." His
argument depends, in part, on the assertion that the warrant included invoices for purchases of automobile
parts and a "chop shop" operator, in the course of operating that kind of illegal activity, would not
reasonably be expected to purchase parts.
¶19. On this third search, the officers seized a number of files containing invoices for parts purchases and
related expenses regarding the rebuilding of wrecked vehicles. Some of these documents later proved to be
forged and were used in this criminal prosecution. As Logan was suspected of operating a "chop shop"
where stolen vehicles were brought in and either disassembled to be sold for their constituent parts or
disguised so that they would not be readily identifiable, any documents relating to vehicles rebuilt or
repaired by Logan at his shop facility would have potential relevance in a criminal investigation. It was not
necessary for the officers to know, in advance, what records, invoices, or other documents Logan would
actually have on the premises in order to obtain a warrant to search for such evidence so long as they had a
reasonable basis to conclude that some such documentary evidence might be discovered on the premises.
In that circumstance, the officers' inability to describe with more certainty the documents that would be
sought is not fatal to the warrant.
¶20. This Court holds that there was no search and seizure violation under the facts of this case. The first
two warrantless searches were conducted with informed consent, the third search was conducted pursuant
to a valid warrant, and evidence obtained therefrom is admissible.
II. Did the trial court err in allowing insurance investigative
files to be introduced into evidence by an investigator who was
not involved in the making of those files?
¶21. Virgil Luke, a senior special agent with the National Insurance Crime Bureau (NICB),(1) testified at
Logan's trial on behalf of the State. The State used Luke to testify from insurance investigative files
prepared by adjusters from various insurance companies which were members of the NICB. Luke did not
participate in the making of the files from which he read, and the adjusters who compiled the files did not
testify. Luke testified that insurance companies which are NICB members are required to prepare the
information contained in these files whenever they process claims for automobiles that are deemed to be
total losses. According to Luke, the member insurance companies, in the ordinary course of their
businesses, generate this information and then transfer it to the NICB computer database, which Luke has
unlimited access to because of his employment with the NICB. He stated that none of the files from which
he testified were prepared in anticipation of litigation, and that he did not have to obtain special permission
to gain access to them.
¶22. Logan continuously objected to the introduction of information contained in these insurance files on the
grounds that they were not properly authenticated, and that they also constituted hearsay without an
exception. No objection on lack of confrontational grounds was voiced.
¶23. After his qualifications and experience were enumerated by Luke, the trial judge accepted him as an
expert in the field of vehicle identification. Additionally, the State identified Luke as an expert witness in
identification and history of vehicles relevant to the defendant's case well in advance of trial. The trial court
ruled that the State complied with the rules by giving proper notice to Logan of this witness's testimony.
¶24. The trial court admitted the evidence under Mississippi Rule of Evidence 803(6), the business records
hearsay exception, as records of regularly conducted activity of NICB, all as testified to by Like, a qualified
witness. The Court of Appeals majority ruled that in allowing Luke to testify from the insurance files, rather
than requiring the adjusters who made the files to testify from them, Logan's Sixth Amendment right to
confront witnesses was violated.
¶25. Rule 803(6), in relevant part, says:
The following [is] not excluded by the hearsay rule, even though the declarant is available as a
witness: Records of Regularly Conducted Activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or
other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of
information or the method or circumstances of preparation indicate lack of trustworthiness . . .
Miss. R. Evid. 803(6).
¶26. In Kettle v. State, 641 So. 2d 746 (Miss. 1994), the defendant was charged with the sale of cocaine.
As part of the State's case-in-chief, a supervisor at the Mississippi Crime Lab, testifying from laboratory
records, stated that the substance sold by the defendant was cocaine. This supervisor did not personally
test the substance, and the individual who did test the substance and made the records from which the
supervisor read did not testify. The defendant made a pretrial motion in limine, arguing that allowing the
introduction of the test results in this fashion violated his Sixth Amendment right to confrontation. This
motion was denied, and the trial court ruled that under Miss.R.Evid. 803(6), the supervisor could introduce
the test results. This Court reversed, holding that even though the lab records were kept in the course of a
regularly conducted business activity, thereby placing them under the hearsay exception, only the person
who actually conducted the test could introduce the results into evidence once the defendant invoked his
Sixth Amendment right to confrontation. "Under Rule 803(6), therefore, a custodian of the records of the
Mississippi Crime Lab may introduce laboratory reports, except where the defendant objects on the ground
that his Sixth Amendment right to confront the person who prepared the test is being violated." Kettle, 641
So. 2d at 750 (emphasis added).
¶27. Ellis v. State, 661 So. 2d 177 (Miss. 1995) is factually similar to Kettle, except that the defendant in
Ellis failed to invoke his Sixth Amendment rights either before or during trial, and was subsequently
convicted. This Court affirmed that conviction, and in doing so, distinguished the two cases. "Unlike the
defendant in Kettle, Ellis did not make a motion in limine nor did he object during trial on the grounds that
[the State's witness] was not the actual tester of the cocaine, thus invoking his confrontation right. Since no
objection was raised, the testimony of [the State's witness] was properly admitted by the trial court." Ellis,
661 So. 2d at 182.
¶28. Although cited by the parties, Lentz v. State, 604 So. 2d 243 (Miss. 1992) is not relevant to the case
sub judice, as in that case the defendant, and not the State, successfully sought to have a report entered into
evidence, by someone other than the preparer, under M.R.E. 803(6).
¶29. Logan's objections at trial were specifically made on the grounds of hearsay and lack of authentication,
and never on Sixth Amendment confrontation clause grounds. In addition to failing to raise the Sixth
Amendment issue at trial, Logan also failed to raise it in any pretrial motions. The first time Logan raised this
issue was in his appeal to the Court of Appeals. There is sufficient evidence in the record to support a
finding that the insurance records which Luke testified from were made by the insurance companies and
transferred to the NICB in the course of their regularly conducted business activities, and nothing in the
record indicates that these records lacked trustworthiness. Following the precedent set by this Court in
Ellis and Kettle, we hold that the trial court properly allowed Luke to testify from the insurance files. A
trial judge cannot be put in error on a matter not presented to him for his decision. Mills v. Nichols, 467
So. 2d 924, 931 (Miss. 1985). A contemporaneous objection is required to preserve an error for appellate
review. Smith v. State, 530 So. 2d 155, 161-62 (Miss. 1988).
III. Did the trial court erroneously allow the State's expert to testify outside of the scope of his
expertise?
¶30. At trial, without objection from Logan, investigator Luke was accepted as an expert in the field of
vehicle identification. However, the Court of Appeals found that the trial court erroneously allowed Luke to
testify outside of his area of expertise when he testified about the following issues: (1) damages and repairs
to automobiles, (2) whether vehicles were repairable or were total losses, (3) whether particular rivets were
factory originals or homemade, and (4) whether or not particular pieces of sheet metal had been repaired.
¶31. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise." Miss. R. Evid. 702. "[F]
ormal education is not the only means of becoming an expert in a field. A witness may qualify to give expert
opinion through his experience only." Cain v. Mid-South Pump Co., 458 So. 2d 1048, 1050 (Miss.
1984). "A trial judge's determination as to whether a witness is qualified to testify as an expert is given the
widest possible discretion and that decision will only be disturbed when there has been a clear abuse of
discretion." Sheffield v. Goodwin, 740 So. 2d 854, 856 (Miss. 1999).
¶32. For 22 years, Luke worked for the Mississippi Highway Patrol, spending the last 12 of those years in
the auto theft division. In 1985, he began working for the NICB.(2) Luke has been a member of the
International Association of Auto Theft Investigators since 1976, serving as its president in 1981. He
testified that he has attended and taught numerous week long training sessions hosted by that organization,
and that overall, he teaches 15 to 20 auto theft investigation schools a year to law enforcement personnel.
Luke has been accepted as an expert in the field of vehicle identification in numerous court throughout
Mississippi and also in federal courts in four states.
Should Luke have been allowed to testify about damages and repairs to automobiles, and
whether vehicles were repairable or total losses?
¶33. When Luke testified about these topics, he was reciting information contained in the investigative files
compiled by the NICB member insurance companies. Logan objected to Luke's reading from these
insurance records, arguing that they were not sufficiently authenticated and that they lacked proper
sponsorship. At no time during or prior to trial did Logan object on Sixth Amendment grounds. Citing
M.R.E. 803(6) and finding that these records were kept in the regularly conducted business activities of the
NICB and its member insurance companies, the trial court allowed Luke to testify from them, rather than
requiring the adjusters who compiled the information contained therein to introduce them. As the record
supports a finding that the insurance files were prepared in the ordinary course of business and were
trustworthy, and as Logan failed to object on Sixth Amendment confrontation clause grounds when this
evidence was introduced, the trial court's decision to allow Luke to introduce this evidence was proper
under Kettle and Ellis.
Should Luke have been allowed to testify about whether particular rivets were factory
originals or homemade?
¶34. The most visible place in which a vehicle identification number (VIN) can be found is on a vehicle's
dash board under the inspection sticker. As an expert in vehicle identification, Luke is obviously familiar
with this location. At trial, he testified that the VIN plate located on the dash board is attached to the vehicle
with "stainless steel rosette rivets" which are put into place with an "air rivet gun that has a certain thousand
pound pressure." He further explained that using these particular rivets and this particular air rivet gun has
been a "trademark" of General Motors since 1968. The specificity of this testimony illustrates that Luke
possessed specialized knowledge with regard to rivets, thereby qualifying him to testify as an expert on the
topic. Accordingly, the trial court did not commit a clear abuse of discretion in allowing Luke to testify
about rivets.
Should Luke have been allowed to testify about whether or not particular pieces of sheet
metal had been repaired?
¶35. In addition to VINs being located on a vehicle's dash board, they are also placed in various
inconspicious locations within the vehicle. Luke testified that "confidential VINs" are stamped in two
locations on a vehicle's frame, and they are also stamped in the engine and transmission. He testified that
part of his training included touring "many assembly plants" to see how vehicles are built and numbered.
Additionally, he testified that the examination of sheet metal is a technique that he uses "very much" in the
performance of his duties and also in his training. Luke stated that the presence of non-factory original rivets
attached to a VIN plate indicates that the plate has been changed and that it is his practice to turn to the
confidential VINs concealed within the vehicle's frame upon observance of such a situation. Between his
observations at assembly plants, his practice of examining sheet metal in his work and training, and his
practice of examining confidential VINs in certain situations, Luke is familiar with automobile frames and
sheet metal. In light of this familiarity, he possessed specialized knowledge which enables him to recognize
the difference between new and repaired sheet metal. Accordingly, he was qualified to testify on such a
topic, and the trial court did not commit a clear abuse of discretion in allowing Luke to do so with regard to
particular pieces of sheet metal.
¶36. Accordingly, this Court holds that the trial court acted within its discretion when it allowed Luke to
testify about the aforementioned subjects.
IV. Did the prosecutor make improper comments during closing arguments?
¶37. In its opinion, the Court of Appeals ruled that the prosecutor, during closing arguments, (1)
commented on Logan's failure to testify, (2) argued about crimes not charged, and (3) inflamed the jury's
passions, all of which were improper and established grounds for a mistrial. The Court of Appeals then
ruled that the trial court committed reversible error in failing to declare a mistrial based on these comments.
Did the prosecutor impermissibly comment on Logan's failure to testify?
¶38. "[E]ach case must be considered individually where there is a question as to the prosecutor's
comments on the defendant's failure to testify." Conway v. State, 397 So. 2d 1095, 1099 (Miss. 1980).
"[T]he intention of the [prosecutor] is immaterial; the test is whether the language can be reasonably
construed to be a comment upon the failure of the defendant to take the stand." Lambert v. State, 190
Miss. 790, 793, 25 So. 2d 477, 478 (1946). "[I]t is not error to comment on the defense's failure to offer
any evidence to contradict the State's evidence." Beckwith v. State, 707 So. 2d 547, 584 (Miss. 1997);
see also Smith v. United States, 234 F.2d 385, 389 (5th Cir. 1956).
¶39. Logan contends that, twice during closing arguments, the prosecutor improperly mentioned Logan's
failure to testify. In the first instance, the prosecutor told the jury "[i]t's clear and the evidence is undisputed
that on the dates that you will see in these [applications for salvage certificates of title], as evidenced by
these documents, that the defendant went to the subdistrict here in Brookhaven and presented these
vehicles for inspection. That evidence is not disputed." In the second instance, the prosecutor stated "Mr.
Luke said that the rivets were bad. All these rivets, there was an effort made -- this is significant -- there
was an effort made to make these home-made rivets appear as though they had been issued by the factory.
This design on the top of the rivets, filing the design on the top of the rivets. That took some effort. But it's
clear that these rivets were bad. There's no evidence to the contrary. They were aluminum, not the stainless
steel." At this point, Logan objected, asked the trial court to instruct the jury to disregard the comments,
and moved for a mistrial. The trial court sustained the objection, admonished the jury, but denied the motion
for mistrial.
¶40. When witnesses other than the defendant are available to refute the State's evidence, and these
witnesses are not placed on the stand, this Court, in prior cases, has held that comments similar to those
about which Logan now complains do not constitute reversible error. Conway, 397 So. 2d at 1100 (citing
Clark v. State, 260 So. 2d 445 (Miss. 1972)).
¶41. With regard to the assertion that he presented the vehicles for inspection in Brookhaven, Logan could
have produced alibi witnesses testifying that he was elsewhere at the times he was allegedly in Brookhaven.
He could have also produced handwriting experts to testify that the handwriting on the applications was not
his own. With regard to the rivets, Logan could have produced experts in the field of metallurgy to refute
Luke's contention that the rivets were home-made, and not factory originals.
¶42. Since Logan's testimony was not the only means by which he could have contradicted this so-called
"undisputed" evidence and since prosecutors are not forbidden from commenting on a defendant's failure to
contradict the State's evidence, the comments of the prosecutor cannot be reasonably construed to be a
reference to Logan's failure to testify and, therefore, did not constitute reversible error.
Did the prosecutor impermissibly comment on crimes for which Logan was not charged?
¶43. Logan was charged with defrauding state government and uttering forgery. Logan asserts that during
closing arguments, the prosecutor improperly made comments regarding stolen vehicles when he told the
jury that there was evidence that the sheet metal on one of the trucks Logan sought title for had never been
damaged. The prosecutor then stated that the only time a vehicle would be subject to salvage when none of
the sheet metal had been damaged was when the vehicle was stolen. Logan objected on the grounds that
there was no testimony that the vehicle at issue had ever been stolen and also that Logan was not charged
with possession of stolen property. The trial court responded to Logan's objection by stating that the jury
had been properly instructed. The prosecutor then continued, without objection, stating that the jury could
infer from the evidence that the sheet metal on that vehicle was stolen and that was the reason why Logan
was presenting these vehicles for title.
¶44. In Stevenson v. State, 244 So. 2d 30 (Miss. 1971), the appellant claimed he was greatly prejudiced
when the prosecutor referred to matters not in evidence during closing arguments. An objection was made
and sustained when the comments were made. However, appellant did not ask the judge to instruct the jury
to disregard the comments, nor did he move for a mistrial. Because the appellant failed to move for a
mistrial or ask for a limiting instruction, this Court refused to consider whether the prosecutor's comments
established grounds for a mistrial. Id. at 33; see also Briggs v. State, 741 So. 2d 986, 991-92 (Miss. Ct.
App. 1999).
¶45. Additionally, this Court has held "in order to take advantage of improper argument on the part of a
prosecuting attorney, objection must be interposed at the time the statement is made, and the point will not
be considered on appeal unless motion for a mistrial is timely made." Austin v. State, 384 So. 2d 600, 601
(Miss. 1980).
¶46. Because Logan merely objected when the prosecutor made comments about stolen vehicles and failed
to ask the trial court for a limiting instruction or a mistrial based upon those comments, that issue was not
properly preserved for appeal. However, we caution prosecutors to refrain from making comments similar
to those presently at issue. "Prosecutors are limited to arguing facts introduced in evidence, deductions and
conclusions that may be reasonably draw therefrom, and application of law to facts." Holland v. State,
705 So. 2d 307, 343 (Miss. 1997).
Did the prosecutor make remarks which inflamed the passion of the jurors?
¶47. During the State's closing argument, the prosecutor stated "[a]nd whatever count where you think that
the State has proven him guilty beyond a reasonable doubt on his oath, you're required to return a verdict
of guilty. If you violate your oath, you will have defrauded the State of Mississippi." Logan objected, and
the trial court sustained that objection. The prosecutor then said "I would never, under any circumstances,
return in this courtroom a verdict that I did not believe in." Logan again objected, and the trial court
sustained the objection.
¶48. Attorneys are given wide latitude during closing arguments. Rushing v. State, 711 So. 2d 450, 455
(Miss. 1998). The trial judge is in the best position for determining the prejudicial effect of an objectionable
comment and is, therefore, vested with discretion to determine whether the comment is so prejudicial that a
mistrial should be declared. Alexander v. State, 602 So. 2d 1180, 1182 (Miss. 1992). "[T]he test to
determine if an improper argument by a prosecutor requires reversal is whether the natural and probable
effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting
in a decision influenced by prejudice." Dunaway v. State, 551 So. 2d 162, 163 (Miss. 1989).
¶49. In the remarks at issue, the prosecutor correctly told the jury that it was required to return a guilty
verdict if the State proved Logan guilty beyond a reasonable doubt. Although the other comments about
which Logan complains were improper, we cannot say that he was unjustly prejudiced by them, particular
when they are viewed in the context of a trial which lasted eight days.
¶50. For the reasons stated herein, we hold that the prosecutor did not make improper comments at trial
which established grounds for a mistrial.
CONCLUSION
¶51. While the Court of Appeals erred with respect to some issues as indicated herein, it reversed the
judgment of the trial court on other grounds not here challenged. Accordingly, its judgment is affirmed in all
respects not inconsistent with this opinion, and the judgment of the trial court is reversed and this matter is
remanded to that court for further proceedings.
¶52. AFFIRMED.
PITTMAN AND BANKS, P.JJ., WALLER AND COBB, JJ., CONCUR. McRAE, J.,
CONCURS IN RESULT ONLY. SMITH, MILLS AND DIAZ, JJ., NOT
PARTICIPATING.
1. Luke said, "NICB is a nonprofit company founded in 1912 that is funded by the insurance industry that
hires people that are experts in their field and give them back to law enforcement and do training . . . ."
2. Luke testified that he is an employee of the NICB, not of the particular insurance companies which are
NICB members. These member insurance companies are Luke's clients, not his employers.