Mahan v. State

ROBERTS, Judge,

dissenting.

The majority opinion says the prosecutor’s argument was proper because the evidence indicated the appellant had more marihuana than he could use personally. The majority does not detail the evidence. In the dining room closet the appellant had three brown paper bags containing a total of 4.69 ounces of marihuana. An ashtray held cigarette butts containing another 0.11 ounces. Growing in a two-foot by six-foot flower bed were 144 marihuana plants bearing leaves which weighed 22.4 ounces.

The majority opinion says that the prosecutor was responding properly to the appellant’s argument. As the quoted argument of appellant’s counsel states, the prosecutor opened the subject of selling. Again the majority fails to reveal the record, which begins with the cross-examination of the appellant:

“Q. Defendant Mahan, are you asking this jury to believe that you grew all this for your own personal use?

“A. Yes, sir, I sure am.

“Q. And you are going to smoke all this all by yourself?

“A. In a period of a couple years, yes, sir, I figured I would probably use that much.

* * * * * *

*491 “Q. Why would you grow so much marijuana? Did you ever give any to your friends?

“A. No, never.

“Q. Did you ever sell any to your friends?

“A. No, never.

“Q. Just had this big bag all for yourself?

“A. That big bag is not so large, really, I don’t think. Yes, sir, it was for myself. I’m sorry.

* * * * 5$C *

“Q. You want this jury to believe that you grew all that marijuana for just ol’ Larry; is that right?

“A. That’s correct. That is fact.

“MR. COX: We pass the witness.”

The prosecutor continued this theme in his first argument:

“This was a bunch of marijuana. This was a lot of marijuana being cultivated in the Defendant’s backyard. We heard testimony the marijuana was throughout the house. * * * m let you draw from your own conclusions the amount, [sic] You know, I find it awful hard to believe that this was grown for one person.”

Only after all this were the arguments made which are quoted by the majority. It was the appellant who was responding to the prosecutor’s argument, not vice versa. The prosecutor seemed to think that the appellant had “opened the door,” but in fact the prosecutor had been trying to open it himself; his argument was not a proper reply.

The prosecutor’s argument had another vice. The remark, “I know what I think,” constituted improper testimony by the prosecutor.

The majority concedes that the prosecutor’s sidebar remark was improper, but it pretends that we can ignore the prejudicial effect because “no adverse ruling was obtained” and the trial court’s ruling, “Sustain the objection,” cured the error. Sometimes this Court is too much concerned with magic words and too little concerned with whether an appellant had a fair trial. The prosecutor implied throughout this trial that the appellant was a marihuana seller when there was no evidence of it and no charge of it. The prosecutor also improperly opposed probation because of community expectations. The appellant should have a new trial.