IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-01185-COA WILTON WILLIAMS II APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/12/2018 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: DEE BATES NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/07/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ. LAWRENCE, J., FOR THE COURT: ¶1. Following a c ar accident, W i lton Wi l l i a ms w a s c h a r g e d w i t h d riving under the inf luence (DUI )

— h i s f

ourth of f ense. W illiam s was later convicted and sentenced to ten
y ears in the custody of the Mississippi Departm e nt of Corrections, w ith two y ears suspended and eight y ears to serve, f ollowed by

two y ears of

post-release supervision. W illiam s now appeals, a s s e rting that he was denied a right t o a f a ir trial based on the S tate’s closing
argum ent. Finding no error, we af f irm

. FACTS ¶2. On March 7, 2017, Of f icer Landon Marrs, was dispatched to a o n e-car accident inPike County

. T h e driver had w recked the vehicle into a bridge. On his way to the accident,

Of f icer Marrs spotted three m en walking in the opposite direction of the scene. Upon arrival, the scene was abandoned. Of f icer Marrs suspected that the three m en were involved, so once another of

f i cer a rrived, Of

f icer Marrs went searching f or the three m e n . Of

f i cer Marrs approached the nearest house, which was i n the sam e direction as the three m en walking, and inquired about the accident to s ee if the driver w as there. M om ents later, W illiam s em erged f rom the house and adm itted he had been the driver of the vehicle. ¶3. Of f icer Marrs needed to com

plete an accident r eport, so he escorted W illiam s and the other two m en back to the scene. Of f i cer Marrs testif

ied that he sm elled h ints o f m arijuana

a n d a n i ntoxicating b everage on W illiam s, and the other of f icer, A llen Fry , agreed. Th e of f icers asked W illiam s about the sm ells. W illiam s a d m itted to drinking the night bef ore and into the m orning b ut a ttributed the m arijuana sm ell to h aving been around others w ho were

sm oking ma r ijuana e arlier that day

. Of f icer F ry testif

ied that W illiam s was stuttering and

m um bling and that he could not f ully understand W illiam s’s speech. ¶4. Of f icer Fry placed W illiam s under arrest f or unrela t e d c h a r g e s ( d r i v i n g w ith a suspended license, f

ailure to k eep a proper lane, and no insurance) but rem ained suspicious that W illiam s was driving under the inf luence. As a result, Of

f icer F ry adm inistered a f

ield sobriety test a t t he Pike County Sherif f ’ s O f f ice. W illiam s ’s f

ield sobriety test produced

m ultiple clues f

or Of f icer Fry , who testif

ied that W illiam s lost his balance and m ade several other m istakes during the f i eld sobriety test. Because of those o bservations and what Of f icer

2Fry described as a “totality of the circum s tance,” Of f i ce r F r y c h a r g ed W illiam s with DUI, which was W illiam s’s f

ourth of f ense. ¶5. W i lliam s consented t o giving a urine sam ple to be tested f

or drugs and a l c o h o l. At trial, John Stevenson of the Mississippi F o rensics Laboratory , who had tested W illiam s’s urine sam ple, was called to t estif

y . On direct exam ination, the State questioned S tevenson on the test results: [ STATE]: O kay

. And what controlled substances w ere i n t h e

def e ndant’s—the sam

ple that y ou tested? [ STEVENSON]: Screened p ositive f or the cannabinoids, s ir , w h i ch is m a rijuana and cocaine m etabolites. [ STATE]: O kay

. So cocaine m etabolites or cocaine an d

m e tabolites? [ STEVENSON]: The con f o rm ational analy s is that I had perf orm ed indicated that i t h ad nicot i n e , caf f eine, cocaine m e tabolites and the m etabolite of m arijuana as well. The def ense did not cross-exam ine Stevenson. ¶6. Wi l l iam s testif

ied that the accident occurred due to an im properly installed tire a n d slippery r o a d s f

r o m t h e r a in. He also testif ied that he drank a “sip” o f beer and sm oked a cigarette in the th i r ty m i nutes that passed between leaving and returning to the accident scene. W i lliam s denied being under the inf luence when he crashed into the bridge. ¶7. During closing argum ents, the prosecutor r epeatedly stated t hat W illiam s was under the inf l uence at the tim e of the accident. Midway through his argum ent, the prosecutor stated the f ollowing:
3W e have testim ony , again, that he had cocaine a n d m etabolites and m arijuana

in his urine. He had consum ed it a nd it had been i n there long e nough t o s t art m etabolizing. But still not long e nough t h a t i t h a d actually gotten rid of it. That shows, ladies and gentlem an, t hat he w as under the inf l uen c e o f t h e s e controlled substances. ¶8. Wi l liam s’s counsel objected to the prosecutor’s statem ent and requested a m istr i a l , which the court denied. Instead, the trial court instructed t he j u r y t o d i s regard “any
argum ent, statem e nt, or rem ark [ that] has no basis i n the evidence.” W illiam s was c onvicted of h is f o urth DUI of

f e nse a nd sentenced accordingly

. On appeal, W illiam s seeks a new trial and claim s that the prosecution’s m isplaced conclusions were inappropriate and p rejudicial to his case. ANALYSIS ¶9. To determ i ne whether there was prosecutorial m i sconduct during closing argum ents, appellate courts m

ust ask “whether the n atural and probable ef f ect of the im

proper a rgum ent is to create unjust prejudice against the accused so a s to result i n a decision inf luenced by the prejudice so created.” W

ilson v
. State , 194 So. 3d 855, 864 (¶30) (Miss. 2 016). A prosecutor is “not allowed to em

ploy tactics w hich are inf l am m atory , highly prejudicial, or reasonably calculated to unduly inf

luence the ju r y ” o r “state f acts which are not i n evidence.” Id

. Additionally , the prosecution cannot “appeal t o the prejudices of m en by injecting p rejudices not contained in som e source of the evidence.” Id . (internal quotation m ark om itted). ¶10. In h is closing argum ent, the prosecutor stated t hat W illiam s was “under the inf luence”

seven tim es bef

ore the def

ense objected. W illiam s argues the prosecutor’s r e ma rks were

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lam m atory and prejudicial. Af ter reviewing t he record, we f ind there was suf

f icient evidence to show W illiam s was u n der t he i nf luence at the tim e of t he accident. T he evidence showed that W illiam s lost control of h is vehicle and wr e c k e d i n t o a bridge. O f f icer Fry testif i ed that when he f

irst spoke with W illiam s, he could sm ell alco h o l o n h i s b r e ath. He also s t a t e d that W illiam s “ was stuttering, m u m bling his w ords. Som e of his s peech was incoherent.” Of

f icer Fry f u rther t e s tif

ied that W illiam s f

a iled several parts of the f ield sobriety tests. Specif

ically , W illiam s “m issed h eel to toe on s everal steps. He also stopped walking o n steps f

ive and six on the f

irst nine s teps. He stepped of f line on steps seven and eight on his nine steps b ack. And he did an im proper turn.” Of

f icer Fry also adm inistered the “one leg stand,” which W illiam s f a iled because he could n ot stay balanced. Not only did William s f

ail the f ield sobriety test, he also t ested positive f or cocaine m etaboli t e s a n d

m arijuana m etabolites. ¶11. During closing argum ent, a “prosecutor m ay com m ent upon a n y f acts introduced into evidence, and h e m ay draw whatever deductions and inf erences t hat seem proper t o him f rom the f acts.” Id

. ( internal quotation m ark om itted). Here, the prosecutor ref erred to W illiam s’s f ailed f ield sobriety test and W illiam s’s urine sam ple ( containing cocaine and m arijuana) to deduce that W i lliam s was under the inf l uence. Based on t he f

acts t hat were introduced into evidence, we see no error in that deduction. ¶12. Further, any error i n t h e p r o s e cutor’s r em arks would be harm less. P rior to closing
argum ents, the trial court instructed the jury as f ollows:

5The evidenc e w h i c h y ou are to consider consists of the t estim o ny and

statem ents of the witnesses and the exhibits of f ered and received. You are also perm itted to draw such reasonable inf er e n c e s f rom t he evidence as seem justif ied in the l i g h t of y our own experience. Argum ents, statem e n ts and rem arks of counsel are intended to help y ou understand the evidence a nd a pply t h e l aw, but are not evidence. If any argum ent, statem ent or rem ark h a s n o basis in the evidence, then y ou should disregard it. As evidenced above, the j ury was properly instructed to disregard any statem ent m ade by the attorney s during closing argum ents that had no b asis in the e vidence. “The law presum es that jurors f ollow the instructions given to them by the court.” Martin v. S tate , 266 So. 3d 652, 664 (¶20) (Miss. Ct. App. 2018), cert. denied , 265 S o. 3d 181 (Miss. 2019). Accordingly ,

we do not f

ind the natural and probable ef f ect of the prosecutor’s statem ent created an unjust prejudice against W illiam s that resulted in a decision inf luenced by prejudice. This a rgum ent is without m erit. ¶13. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR.

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