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Gazaway v. State

March 10, 1998

TIMOTHY ALLEN GAZAWAY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



DATE OF JUDGMENT: 06/19/96 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CT I POSSESSION OF METHAMPHETAMINE: CT II POSSESSION OF MARIJUANA: CT I 3 YRS; PAY $5,000.00 FINE; UPON SERVING 2 YRS AND PAYING FINE 1 YR IS SUSPENDED WITH 5 YRS PROBATION; CT II PAY $250.00 FINE; CONDITION OF PROBATION PAY FINE IN CT II

MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

Before: Thomas, P.j., King, And Payne, JJ.

The opinion of the court was delivered by: Thomas, P.j.

AFFIRMED

¶1. Timothy Allen Gazaway appeals his conviction for possession of methamphetamine and marijuana raising the following issues as error:

I. THE TRIAL COURT ABRIDGED GAZAWAY'S FUNDAMENTAL RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE COURT DENIED GAZAWAY'S MOTION FOR A MISTRIAL ON THE GROUND THAT THE COURT APPOINTED THE FOREMEN OF THE JURY.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING GAZAWAY'S MOTION TO SUPPRESS ADMISSION OF THE MARIJUANA AND CRYSTAL METHAMPHETAMINE THAT WAS SEIZED PURSUANT TO AN ILLEGAL SEARCH AND SEIZURE.

¶2. Finding no error, we affirm.

FACTS

¶3. On December 6, 1995, the Mississippi Bureau of Narcotics, along with the Mississippi Department Of Transportation, were conducting a drug interdiction detail along Interstate 20 in Scott County. They were also checking commercial vehicles for Department of Transportation violations. A semi-truck was observed which had improper blue lights on the rear of the truck. The truck was pulled over and eventually searched.

¶4. The driver of the truck was Marie Gazaway. Her husband, Timothy Gazaway, was in the sleeper compartment of the truck when it was pulled over. Luis Hawkins, an officer of the Mississippi Bureau of Narcotics, approached Mrs. Gazaway and asked if she would consent to have her truck searched and she agreed. After having asked Mr. Gazaway to step down, Officer Hawkins then preceded to search the truck. Officer Hawkins found a container in the sleeper compartment of the truck which contained marijuana.

¶5. James Richardson, an officer with the Mississippi Department of Transportation, dealt with Mr. Gazaway while Officer Hawkins conducted his search. He asked Mr. Gazaway to both take his hands out of his pockets and to empty his pockets. Mr. Gazaway was observed throwing a small package from his pocket into the truck. The package was recovered and discovered to contain crystal methamphetamine.

¶6. Mr. Gazaway was placed under arrest, searched, and read his Miranda rights. The search incident to arrest resulted in the discovery of more marijuana. He then told the officers that all of the drugs found belonged to him. Mrs. Gazaway was neither arrested nor indicted. Officers then asked Mrs. Gazaway to write out her consent, which she did. This written consent was drafted after the search of the truck and was witnessed by Officer Palmer, another member of the Mississippi Department of Transportation present at the scene. Mr. Gazaway was indicted for possession of controlled substances. Following deliberations, the jury returned a verdict of guilty.

ANALYS ...


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