SULLIVAN, JUSTICE, FOR THE COURT:
On April 19, 1984, Charles Everett Carney was convicted of possession of more than one ounce of marijuana with intent to deliver. Carney appeals this conviction and assigns the following as error:
1. The court erred in allowing the State to proceed in Case Number 3928-2, possession of marijuana with intent to deliver or sell over one ounce but less than one kilogram, before Case Number 3900-2, receiving stolen property, in violation of the defendant's right to effective assistance of counsel under Section 26 of the Mississippi Constitution, as made applicable to the States under the Fourteenth Amendment;
2. The court erred in refusing to suppress the search warrant issued for the defendant's residence, which was based on insufficient evidence to establish probable cause to issue such search warrant, in violation of Section 23 of the Mississippi Constitution, and the Fourth Amendment of the United States Constitution, as made applicable to the States by the Fourteenth Amendment;
3. The court erred in refusing to suppress evidence, and testimony pertaining thereto, obtained by the search warrant issued for the defendant's residence, in violation of
Section 23 of the Mississippi Constitution, and the Fourth Amendment to the United States Constitution, as made applicable to the States under the Fourteenth Amendment;
4. The court erred in refusing the defendant's motion for directed verdict based on lack of evidence establishing that the substance presented in evidence was marijuana;
5. The court erred in refusing to grant defendant's instruction No. D-1; and
6. The court erred in granting State's instruction S-3.
On March 31, 1983, an indictment was filed in the Circuit Court of Marion County charging Charles Everett Carney with the unlawful possession of more than one ounce (but less than one kilogram) of marijuana with intent to deliver, in violation of Section 41-29-139, Mississippi Code Annotated (1972), as Amended.
On January 25, 1983, Carroll Bryant, an investigator with the Columbia Police Department, was investigating a burglary which had occurred the day before. Bryant had received information from a confidential informant that a television and a radio which had been taken in the burglary were seen by the informant at Charles Carney's residence. Bryant appeared before Justice Court Judge Lloyd Day and furnished him with a search warrant as well as an affidavit which supported the search warrant request. A search warrant was issued pursuant to this request.
Later that day a search was conducted of Carney's house and its curtilage. During this search the police officers found the television and radio as well as a quantity of marijuana.
Carney was convicted of the unlawful possession of this marijuana and he asserts that the trial court's failure to suppress it as the fruit of an unlawful search and seizure, was erroneous.
Carney was charged with receiving stolen property as well as possession of marijuana. Both cases were set for the same day. Carney's attorney thought that the stolen property case was to be heard first and claimed to have received a communication from the court to that effect. When the marijuana charge was called for trial Carney's attorney moved to dismiss both charges. The trial judge proceeded
with the trial of the marijuana charge.
Investigator Bryant testified that he searched Carney's house and found numerous small brown envelopes (nickel bags) containing marijuana, a pair of scales, and a number of envelopes which were suspected of containing marijuana or residue. Bryant testified that the television and radio which were the subject of the search warrant and the object of the search were also found.
Linda Faye Weeks, a forensic scientist employed by the Mississippi Bureau of Narcotics, analyzed the substance in question and testified that, in her opinion, it was marijuana.
The defense called Investigator Bryant back to the stand. Bryant testified that Ivy Lee Carney was seen near Charles Carney's house when the police arrived to execute the search warrant.
The jury found Carney guilty and he was sentenced to twenty (20) years in the Mississippi Department of Corrections and fined Fifteen Thousand ($15,000.00) Dollars.
DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO PROCEED IN CASE NUMBER 3928-2, POSSESSION OF MARIJUANA WITH INTENT TO DELIVER OR SELL OVER ONE OUNCE BUT LESS THAN ONE KILOGRAM, BEFORE CASE NUMBER 3900-2, RECEIVING STOLEN PROPERTY, IN VIOLATION OF THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER SECTION 26 OF THE MISSISSIPPI CONSTITUTION, AND THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AS MADE APPLICABLE TO THE STATES UNDER THE FOURTEENTH AMENDMENT?
Carney faced two criminal charges which arose from the search of his property, receiving stolen property and felony possession of marijuana. Originally the instant case (marijuana possession) was to be tried on March 20, 1984, and the other case (receiving stolen property) was to be tried on March 26, 1984.
Carney's attorney sought and obtained a continuance of the marijuana charge. Both cases were then to be tried on March 26, 1984. This was understood by Carney's attorney, however, he thought that the stolen property charge was to be tried first and claimed to have received a message to that
Carney's attorney stated that he received a message from his secretary that someone with the court indicated that the stolen property charge was set in front of the marijuana charge. This allegation is not supported by any sworn testimony. Carney's attorney did not ask for a continuance, neither did he request that the stolen property charge be tried first, instead he moved for the dismissal of both charges. The trial judge reserved a ruling on the motion and the marijuana charge was tried to verdict.
On appeal Carney asserts that he was denied his right to counsel because the marijuana charge was tried first. Carney contends that the setting of the cases denied him a reasonable opportunity to prepare for trial. Citing Cruthirds v. State, 190 Miss. 892, 2 So. 2d 145 (1941).
Under this assignment Carney alleges that his attorney at trial did not have an adequate opportunity to prepare for trial and was therefore unable to render effective assistance. Carney does not allege with any particularity what acts or omissions by his attorney or the court deprived him of this constitutional right. The trial judge granted one continuance on the marijuana charge and at trial Carney's attorney did not seek an additional continuance - instead he sought the dismissal of both of the pending charges.
The trial court may not be put in error for failing to grant a continuance of the marijuana charge since one was not requested. See Warren v. State, 456 So. 2d 735 (Miss. 1984); House v. State, 445 So. 2d 815 (Miss. 1984); Colburn v. State, 431 So. 2d 1111 (Miss. 1983); Read v. State, 430 So. 2d 832 (Miss. 1983); Ponder v. State, 335 So. 2d 885 (Miss. 1976); Rule 6(b) Miss. Sup. Ct. Rules. In Cruthirds v. State, supra, upon which Carney attempts to rely, defense counsel requested additional time to prepare for trial and this request was denied. Cruthirds, 190 Miss. at 896, 2 So. 2d at 146.
To successfully challenge his attorney's representation at trial, Carney must meet the two-prong test for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court.
Applying the Strickland v. Washington test, this Court in Waldrop v. State, 506 So. 2d 273 (Miss. 1987), stated:
Since the advent of the holding in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), we have ascribed to the two-prong analysis of ineffectiveness allegations fashioned by the United States Supreme Court. Thereby, there exists a two-fold inquiry into the issue of ineffective assistance of counsel, focusing on (1) whether counsel's performance was deficient, and if so, (2) whether the deficient performance was prejudicial to the defendant. See also, Alexander v. State, 503 So. 2d 235, 240 (Miss. 1987); Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985); Lambert v. State, 462 So. 2d 308, 316 (Miss. 1984); Thames v. State, 454 So. 2d 486, 487 (Miss. 1984). Though there is a strong but rebuttable presumption that counsel's conduct falls within the wide range of reasonable professional assistance, Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985), this Court must determine based on the totality of the circumstances whether counsel's efforts were both deficient and prejudicial, thus necessitating a reversal. Read v. State, 430 So. 2d 832, 839 (Miss. 1983).
Waldrop, 506 So. 2d at 275.
Since Carney does not allege that any particular act or omission of trial counsel falls outside the range of" reasonable professional assistance "he is unable to satisfy the first prong of the Strickland test. Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985). Neither does Carney allege that the magnitude of his counsel's ineffectiveness undermines confidence in the outcome of the trial. See Lambert v. State, 462 So. 2d 308, 316-17 (Miss. 1985). Absent such a showing, Carney cannot satisfy the second prong of the Strickland test. This assignment of error is therefore without merit.
THE COURT ERRED IN REFUSING TO SUPPRESS THE SEARCH WARRANT ISSUED FOR THE DEFENDANT'S RESIDENCE, WHICH WAS BASED ON INSUFFICIENT EVIDENCE TO ESTABLISH PROBABLE CAUSE TO ISSUE SUCH SEARCH WARRANT, IN VIOLATION OF SECTION 23 OF THE MISSISSIPPI CONSTITUTION, AND THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.
THE COURT ERRED IN REFUSING TO SUPPRESS EVIDENCE, AND TESTIMONY PERTAINING THERETO, OBTAINED BY THE SEARCH WARRANT ISSUED FOR THE DEFENDANT'S RESIDENCE, IN VIOLATION OF SECTION 23 OF THE MISSISSIPPI CONSTITUTION, AND THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS MADE APPLICABLE TO THE STATES UNDER THE FOURTEENTH AMENDMENT.
In the first of these assignments, Carney challenges the validity of the search warrant which was issued. In the second, Carney asserts that the evidence should have been suppressed because the search warrant was not based upon probable cause.
On January 25, 1984, Carroll Bryant, an investigator with the Columbia Police Department, was investigating a burglary which had occurred the day before. In this burglary a Sears television and a radio were taken as were some articles of jewelry and other small items. A search warrant was issued for these items and during the course of the search of Carney's home and property the police found the marijuana which serves as the basis of a criminal charge against Carney.
Carney's attorney moved ore tenus to suppress the evidence and a suppression hearing was held. At the suppression hearing Investigator Bryant testified about the circumstances under which he obtained the search warrant as well as the circumstances surrounding the search. Bryant testified that he appeared before Justice Court Judge Lloyd Day on January 25, 1983. Bryant informed Judge Day that he had received information from a confidential source, who had previously provided information which had led to arrests and convictions, and that the informant had seen a Sears television and a radio (which fit the description of the stolen items) at Carney's residence. Bryant submitted an affidavit which provided the basis for the issuance of the search warrant. Further, Bryant testified that Judge Day asked him a number of questions concerning the search warrant request. Bryant testified that the other items which were included in the search warrant were not seen at Carney's residence by the informant.
The search warrant was issued and the police officers went to Carney's residence to execute it. Arriving at Carney's house the police entered the patio area and began their search. The first item which the police discovered while executing this warrant was the radio. This radio was
Next, the police found two envelopes containing marijuana under a wooden spool (which had contained some type of cable). This spool was also in the patio area. Investigator Bryant was questioned regarding the search of the area under the spool and stated:
Q. Okay, and is it not also a fact that you located most of these parcels that you contend contain drugs in places where you would not normally expect to find a radio or television; that is to say, for example, under the spool in the patio, you wouldn't have been able - you would have been able to see a television under the spool had it been there, or a radio, isn't that correct?
Q. So when you were looking under the spool, you weren't looking for the radio or the television; were you?
A. No, sir, I really wasn't. (Emphasis added).
A photograph of the spool and patio clearly shows that no radio or television could have possibly been secreted under the spool.
Shortly after finding the marijuana under the spool, Sheriff Forbes and John Pittman were checking an old stove in the yard and found some aluminum foil. Investigator Bryant ...