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JOSEPH JUNIOR ARNETT v. STATE OF MISSISSIPPI

SEPTEMBER 21, 1988

JOSEPH JUNIOR ARNETT
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., GRIFFIN AND ZUCCARO, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the circuit court of the Second Judicial District of Jasper County regarding the conviction of Joseph Junior Arnett (Arnett) on a charge of possession of marijuana in an amount greater than a kilogram, and sentence to 14 years in the Mississippi State Penitentiary with seven years suspended if Arnett paid a $125,000 fine. Arnett's parole eligibility and/or participation in any or all other early release programs are conditioned on the payment of the

fine. Arnett assigns six assignments of error: I. THAT THE TRIAL COURT ERRED IN REFUSING TO ORDER THE STATE TO REVEAL THE IDENTITY OF THE CONFIDENTIAL INFORMANT.

 II. THAT THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS PROBABLE CAUSE FOR THE ISSUANCE OF THE SEARCH WARRANT.

 III. THAT THE SEARCH OF THE SHED CONSTITUTED AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 23 OF THE MISSISSIPPI CONSTITUTION OF 1890.

 IV. THAT THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF THE 270 DAY RULE.

 V. THAT THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 VI. THAT THE JUDGMENT OF THE COURT IS ILLEGAL AND VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

 We are not persuaded as to any of his assignments, and affirm. The cause is remanded, however, for proper sentencing.

 FACTS

 On the night of October 15, 1984, between 9:00 and 9:30 p.m., Lt. Charles M. Tyson (Tyson) of the Mississippi Bureau of Narcotics (MBN), Hattiesburg Division, received a call from a confidential informant stating that marijuana was then on the property of Joseph Junior Arnett. This property is located in the Second Judicial District of Jasper County. Information had been received from informants for approximately three weeks prior to the October 15 telephone call stating that Arnett was smuggling marijuana into the United States. This information was being received by both Tyson and by Agent Sammy Ray Evans (Evans), also of the MBN. Information was being received by more than one informant. During the telephone call in question, the informant stated to Tyson that two males had arrived at the Arnett residence in a green Custom 10 Chevrolet pickup with a camper shell covering bearing an Indiana license tag number 8248X1, and further that

 the marijuana was in green and white garbage bags inside the camper shell. The informant also stated that the out buildings and a Chevrolet El Camino parked on the property were possibly being used for storage of marijuana. Finally, the informant stated that he had heard Arnett bragging about smuggling marijuana into the United States and that he had personally witnessed the marijuana on the property. The informant never told Tyson under what circumstances he was able to see the marijuana. In the early morning hours of October 16, 1984, Tyson and Evans went before Justice Court Judge Mark Ishee and, based on the information received from the confidential informant, whom Tyson, from past experience, believed to be reliable, obtained a search warrant for the property and appurtenances thereto. The search warrant described the location of Arnett's residence in Jasper County, and added the following sentence: "This is to include any and all vehicles and the curtilage of the residence." Tyson stated that while obtaining the Search warrant, he and Evans "discussed the whole thing" with Judge Ishee, but that everything discussed was stated in the Underlying Facts and Circumstances. This search was carried out at 2:28 a.m. October 16, 1984. Present were Tyson, Evans, Agent Lt. Earl Pierce (Pierce) and Agent Robert Alexander (Alexander) (both of MBN), Sheriff Tom Green and Deputies Ken Breland and Randy Graham. When these men arrived at Arnett's house, Tyson and Evans knocked and announced themselves. Arnett answered the door and let the men enter. Immediately a search was made for others inside the house. Found were Delores Margarita Arnett (Arnett's wife), Darryl Ray Tolson (Tolson), and Herbert Dale Patrick (Patrick) (owner of the Chevy truck). All four people were seated by the agents at the kitchen table while a complete search was conducted of the house, the out-buildings (consisting of a storm shelter and barn), the Chevrolet pickup (located beside the storm shelter) and Tolson's El Camino parked beside the house. Tyson noticed a bag sticking out from behind the seat of the El Camino and upon investigation discovered two large garbage bags containing several smaller bags of green leafy substance, later identified as marijuana. Agents Alexander and Pierce found a large quantity of marijuana in the storm shed, which had been unlocked but propped shut, and residue in the back of the Chevrolet pickup. This search yielded over 600 pounds of marijuana. Only 6.94 grams of marijuana, however, was found inside Arnett's house in the dishwasher. Following this search, Arnett, Delores, Tolson and Patrick were arrested and charged with possession of marijuana in an amount greater than a kilogram with intent to distribute. At Arnett's trial, his charge was reduced to possession of marijuana in an amount greater than a kilogram.

 Arnett's land was located on 54 acres in Jasper County.

 The house, storm shed (or shelter) and pasture located on the land were all to the south of the driveway leading to Arnett's residence. To get to Arnett's house, the officers turned off the highway and traveled approximately 100 to 150 yards along a driveway running east and west, at which point the driveway had two turnoffs to the south, the first to the storm shed, and the last, or Easternmost, to the residence. The storm shed was, by different approximations, 40 yards or 100 to 175 feet west of the house. Between the house and the shed there was a drop-off in the land forming a hill and the shed was built into this hill. Also, some trees were growing on the level land between the house and the drop-off.

 A pasture was located in front and West of the house and shed towards the highway, and was enclosed by a fence which followed along the driveway. The pasture fence on the East cornered with another fence which ran East behind the shed and residence.

 A lengthy delay ensued before Arnett was brought to trial. Arnett was indicted on January 11, 1985, and arraigned and pled not guilty on February 25, 1985. During the pretrial hearings and trial confusion reigned with neither the defense nor the prosecution agreeing on results of earlier hearings. The following is an overview of all pertinent dates:

 Fri. The defendant brought a motion to suppress 3-01-85 illegally obtained evidence stating that:

 1. No probable cause existed for the search warrant;

 2. The search warrant affidavit was invalid because the identity of the informant was not given; and

 3. The storm shed was outside the curtilage of the home making it unsusceptible to a valid search.

 Judge L. D. Pittman overruled the motion and specifically relied upon Read v. State, 430 So.2d 832 (Miss. 1983), to find that the State was not required to identify this informant. (See Read, infra)

 3-06-85 The court granted defendant's motion for a continuance until 5-20-85, stating that certain laboratory analyses, specifically

 fingerprints taken at the Arnett residence on the morning of 10-16-84, were not at that time complete or available to either the prosecution or the defendant.

 3-07-85 The order granting the continuance until 5-20-85 was entered nunc pro tunc.

 5-20-85 An unsigned motion for continuance was filed by the defendant. In this motion the defense attorney stated that it had been his understanding that the above mentioned fingerprint analyses were to have been given to him on or before 4-01-85, but were not received until after that date, and therefore he assumed that the case had been continued until the August, 1985, term.

 Hon. William B. Sullivan, the defense attorney, later stated that he had no knowledge of how this unsigned motion found its way into the appeal record, and that he could only imagine that he had mistakenly left this motion behind and a clerk found and filed it for him out of courtesy.

 Also during this hearing, Judge L. D. Pittman required both attorneys to acknowledge each piece of discovery then in their possession.

 The Arnett case was reset for the August term although the record is not clear as to the reason for this continuance. During a hearing on Motion to Dismiss for violation of the 270-day rule held on February 25-26, 1986, the defendant argued that the case was forced to be continued due to dilatory actions of the State in not delivering all discovery materials - specifically the fingerprint analyses - to the defense in time. The record discloses, however, that it was the defense who requested on 5-20-85 to be given time to take depositions of certain members of the Mississippi Crime Laboratory. The State argued that although the defendant's motion for a continuance on May 20 was unsigned and therefore defective, this motion was made ore

 tenus and was granted, thereby attributing the continuance to the defendant and consequently tolling the 270-day statute.

 Mon. Hon. Rusty Armstrong from New Orleans, LA, 8-26-85 entered the case for the defendant as an

 associate with Hon. William B. Sullivan. Because Arnett was then incarcerated in the West Palm Beach County Stockade in Florida, the case ...


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