Before Bridges, C.j., McMILLIN, And Thomas, Pjj.
The opinion of the court was delivered by: Bridges, C.j
CHUCK TUNSTALL, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 10/25/96
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE, TO-WIT: COCAINE, AS A SECOND OFFENDER; SENTENCED TO 6 YRS; SENTENCE CONSECUTIVE TO #9150; PAY ALL COURT COSTS; NOT ELIGIBLE FOR PAROLE, PROBATION, REDUCTION, SUSPENSION OR ANY EARLY RELEASE
DISPOSITION AFFIRMED - 4/21/98
Chuck Tunstall was convicted of possession of cocaine with intent to distribute in the DeSoto County Circuit Court. Tunstall filed a motion for judgment notwithstanding the verdict and a new trial which was sustained in part by reducing the crime from possession with intent to simple possession. Tunstall was convicted as a second offender and sentenced to serve six years in the Mississippi Department of Corrections. The sentence is to run consecutively to the sentence he is now serving (Cause #9150) pursuant to § 47-7-3 of the Mississippi Code (Rev. 1993). Tunstall was ordered to pay all court costs, and held to be ineligible for parole, probation, reduction, suspension or any early release. Aggrieved, Tunstall appeals to this Court arguing that the trial court erred in overruling his motion to suppress and exclude all testimony and physical evidence seized during the course of the arrest based on an unlawful detention and search. We disagree and affirm the ruling of the trial court.
On September 25, 1995, Officer Cedric Leake of the Olive Branch Police Department was on routine patrol and noticed three men at a car wash standing near the rear of a black Mustang that was parked in the stall of a car wash. Another car was parked near the Mustang, but was not in a stall. Officer Leake testified that he drove by the car wash two times, but no one seemed to be washing his car. Officer Leake noticed an open beer bottle by the coin receptacle for the car wash, and since this particular car wash had been burglarized on several occasions in the past, he stopped to investigate. Officer Leake testified that he asked the men for identification or a driver's license. The officer conducted a light pat down of the outside clothing of the individuals to check for weapons, and proceeded to go to his patrol car to check their identification. Before he could do this, Tunstall headed toward a car, opened the door, and attempted to get in. Officer Leake stepped out of his patrol car and stated, "Everyone need[s] to stay to the rear of the vehicle." Officer Leake then called for back-up.
Officer Leake testified that he remained at his patrol unit until Sergeant Danny Dishmon arrived. As Officer Leake explained the situation to Sergeant Dishmon, two other patrol units arrived at the scene. Officer Leake testified that while one of the officers talked to the individuals, he walked toward the Mustang, shined his flashlight into the car, and observed an automatic pistol on the floorboard. Sergeant Dishmon testified that Tunstall had been released from prison on parole. Officer Leake testified that Sergeant Dishmon advised the other officers that Tunstall was a convicted felon, and Sergeant Dishmon turned to place him under arrest. Sergeant Dishmon stated that as he was telling Tunstall that he was placing him under arrest, Tunstall pushed Officer Greg and attempted to break and run. Sergeant Dishmon grabbed Tunstall with the assistance of ...