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RANDY DIXON v. STATE OF MISSISSIPPI

MARCH 20, 1985

RANDY DIXON
v.
STATE OF MISSISSIPPI



EN BANC.

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

A five-count indictment was returned against Randy Dixon in the Circuit Court of Montgomery County, charging him with possession of Schedule II controlled substances methaqualone, meperidine, and secobarbital; and Schedule IV controlled substances diazepam and ethehlorvynol. Dixon was convicted on all five counts and sentenced as an habitual criminal to serve a term of three years as to count one; three years as to count two; three years as to count three; one year in the county jail as to count four; and one year in the county jail as to count five. The sentences were to run consecutively with no reduction, suspension, or eligibility for parole or probation.

On this appeal, Dixon assigns seven errors:

 1. The indictment against the appellant was defective and the appellant's demurrer should have been sustained;

 2. Controlled substances taken from the appellant's person should have been suppressed by the lower court;

 3. Controlled substances taken from the appellant's automobile should have been suppressed by the lower court;

 4. Statements made by appellant to police officer should have been suppressed by the lower court;

 5. Introduction into evidence of certain syringes by the appellee were prejudicial to the appellant;

 6. The involvement of the district attorney in the investigatory stages of this case subjected the appellant to a lack of protection of his constitutional rights;

 7. Appellant's motion for a directed verdict should have been sustained by the lower court.

 In April 1982, Police Officer John Johnson and Highway Patrolman Jerry Butler were investigating a burglary of the Plaza Drug Store in Winona. On April 29, at approximately 10:30 p.m., Butler phoned Johnson and advised him a reliable source had informed him that Randy Dixon had possession of some of the stolen substances in a brown paper bag in a closet at Dixon's home.

 Afterward Johnson, Butler, and Montgomery County District Attorney Ed Snyder met at the police department and, according to Johnson, "started to work on the affidavit." When it was completed, Butler and Johnson signed the affidavit for search warrant before Donald Bond, the City Judge of the City of Winona. Bond then issued a search warrant authorizing the search of Dixon's house and any vehicles on the property.

 Johnson and Butler arrived at Dixon's residence approximately 5:30 a.m. on April 30. Randy Dixon answered Johnson's knock. When Johnson stepped inside, Randy's brother, Stanley Dixon, came into the room. Johnson then informed both men he had a search warrant for the house. Immediately afterward Randy reached into his right front pocket. Johnson testified, "At that time I grabbed his hand and told him to let me see what he had. At that time . . . I found some tablets that I believed to have been controlled substances." Johnson then placed Randy under arrest. According to Johnson, Randy made a statement to the effect of "Oh, you're not going to charge me with these."

 Johnson testified, "At that time I told him not to say anything to him until I'd had a chance to advise him of his rights. I also told him to step over to the kitchen table and to take everything out of his pockets." After Randy complied, Johnson gave him his Miranda warning. Johnson

 also told Randy the officers "did not want to ask him any questions and would rather that he would sit down and not make any statements . . ."

 However, Randy made several comments as the officers conducted the search of the house. First, he told him they were not going to find anything. Later when Johnson found three ampules of the substance labeled Demerol in Randy's dresser drawer, Randy stated, "I bought that with my own money. I paid for that." According to Johnson, Randy attempted to retrieve the vials of Demerol and continued to assert ownership of them.

 Johnson testified Randy appeared to him "to be under the influence somewhat of drugs or alcohol." Although his speech was not slurred and he was not staggering, Randy looked pale and "somewhat relaxed," seeming "to be coming out from under the influence of something, more than at the point of a real peak high." Nevertheless, Randy appeared to understand his Miranda rights.

 Randy's brother, Stanley, testified that on the morning of the arrest Randy was "kind of groggy and slurry in talk and everything" and "acted like he was in . . . another world." This led Stanley to believe Randy had been taking drugs.

 Following his arrest Dixon announced he wanted to get some cigarettes out of his car parked in the driveway. Officer Charlie Brown escorted him outside and stood beside the back door of the car while Dixon looked under the floor mat. Brown testified, "Well, he disturbed the floor mat, and I noticed a white tip of something showing under the gas pedal . . ." Dixon returned to the house, leaving Brown at the car. Having discovered some capsules underneath the accelerator pedal, Brown called Officer Butler for assistance. Butler removed the capsules, which were introduced into evidence at trial.

 The officers took Randy to the police department at approximately 7:00 a.m. There he again stated he understood his rights. At this time he said he did not want to make a statement before talking with his attorney.

 I. SHOULD THE COURT HAVE SUSTAINED DIXON'S DEMURRER TO THE MULTI-COUNT INDICTMENT?

 We have recently decided four cases concerning this issue. The first, Stinson v. State, 443 So.2d 869 (Miss. 1983), involved a defendant charged with (1) aggravated assault upon a ...


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