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Byars v. State

June 30, 1998

BYARS
v.
STATE



Before Bridges, C.j., McMILLIN, And Thomas, P.jj.

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

KENNETH J. BYARS A/K/A KENNETH JESSIE BYARS, 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: 10/21/96

TRIAL JUDGE: HON. GEORGE C. CARLSON JR.

COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT

BY: W. GLENN WATTS

DISTRICT ATTORNEY: ROBERT L. WILLIAMS

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CT I MANUFACTURING MORE THAN ONE KILOGRAM OF MARIHUANA: CT II POSSESSION OF LESS THAN ONE KILOGRAM BUT MORE THAN ONE OUNCE OF MARIHUANA: CT I 30 YRS; PAY $50,000 FINE & COURT COSTS; CT II 3 YRS; CT II CONCURRENT CT I

Kenneth Byars appeals his conviction of manufacturing and possession of marijuana raising the following issues as error:

I. THE COURT ERRED IN DENYING TO SUSTAIN THE MOTION TO SUPPRESS IN WHOLE OR IN PART

II. THE COURT ERRED IN NOT GRANTING A MISTRIAL WHEN THE PROSECUTION AND DEFENSE ENTERED INTO A STIPULATION ON THE RECORD THAT THE STATE WOULD CALL ONE MORE WITNESS PRIOR TO RESTING FOR THE SINGLE PURPOSE OF PLACING EVIDENCE BEFORE THE JURY THAT A THOUSAND GRAMS WAS THE SAME AS ONE KILOGRAM BASED UPON THIS STIPULATION, THE DEFENSE ARGUED A MOTION FOR DIRECTED VERDICT AND CITED AMONG SEVERAL REASONS FOR CAUSE THAT THE PROSECUTION HAD NOT ESTABLISHED THAT THE RESIDENCE, OUTSIDE BUILDINGS, AND SURROUNDING PROPERTY SEARCHED WAS CONNECTED BY, OWNED BY, IN CONTROL OF OR IN POSSESSION OF BY THE DEFENDANT, KENNETH J. BYARS OR THE OTHER DEFENDANT.

III. THE COURT ERRED IN NOT GRANTING A MISTRIAL WHEN WITNESSES, AGENT JAMES CATALANO, AGENT LEON WILLIAMS, AND CAPTAIN RANDY CORBIN STATED FROM THE WITNESS STAND THAT THE GREEN, LEAFY SUBSTANCE FOUND BY THEM WAS, IN FACT, MARIJUANA, WITHOUT FIRST BEING ADMITTED BY THE STATE AS AN EXPERT WITNESS OR A LAY WITNESS WITH SPECIAL TRAINING THAT COULD DETERMINE WHETHER OR NOT, IN FACT SAID SUBSTANCE WAS MARIJUANA. IN ADDITION, THE STATING OF SAID SUBSTANCE WAS IN FACT MARIJUANA BY SAID AGENTS WITHOUT PROPER KNOWLEDGE FOR SUCH AN (EXPERT) OPINION WAS SO INFLAMMATORY AND PREJUDICIAL TO THE DEFENDANT THAT A MISTRIAL SHOULD HAVE BEEN GRANTED.

IV. THE COURT ERRED IN DENYING THE MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE-IN-CHIEF.

V. THE COURT ERRED IN NOT GRANTING A MISTRIAL WHEN THE ATTORNEY FOR THE STATE, ROBERT L. WILLIAMS, IMPROPERLY CONDUCTED HIS CLOSING ARGUMENT BY ARGUING FACTS NOT IN EVIDENCE CONCERNING THE SEARCH WARRANT, ITS PROPER OR IMPROPER ISSUANCE BY CIRCUIT COURT JUDGE ANDREW C. BAKER AND THE INFORMATION CONTAINED IN SAID SEARCH WARRANT. IN ADDITION, HE ALSO MADE IMPROPER CONCLUSIONS OF LAW BEFORE THE JURY IN STATING THAT THERE WERE NO LEGAL AVENUES WHATSOEVER TO PLACE THE SEARCH WARRANT INTO EVIDENCE.

VI. THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO PROVE A PRIMA FACIE CASE AS CHARGED IN THE INDICTMENT, AND THE VERDICT IS CONTRARY TO THE EVIDENCE PRESENTED AND IS WITHOUT PROPER EVIDENCE TO SUPPORT IT, AND THE VERDICT IS CONTRARY TO LAW AND THE PRINCIPLES OF JUSTICE, AND THERE IS SUBSTANTIAL EVIDENCE THAT WOULD ENABLE REASONABLE FAIR MINDED MEN AND WOMEN IN THE EXERCISE OF THEIR IMPARTIAL JUDGMENT TO RETURN NO OTHER VERDICT THAN THAT OF NOT GUILTY, AND THE COURT ERRED IN ALLOWING INTO EVIDENCE EXHIBITS NUMBERS 14, 19, 21, 22, 23, 24, AND 35 INTO EVIDENCE AS PROPER CHAIN OF CUSTODY HAD NOT BEEN ESTABLISHED.

Finding no error, we affirm.

FACTS

On September 11, 1995, an agent with the Mississippi Bureau of Narcotics, James Catalano, applied to Circuit Court Judge Andrew C. Baker for a search warrant to search the residence described as: "a brown trailer with wood-like siding and a green storage building to the left of the trailer as you look at the front and a dog pin [sic] behind and to the right of the trailer." In the search of the trailer the agents seized a white plastic bag containing a "green leafy substance" from the kitchen area of the mobile home. The agents also seized a "green leafy substance" from an unlocked freezer that was located in a storage shed at the end of the trailer. There was also a "green leafy substance" taken from the floor of the master bedroom. The agents recovered some plants growing in a metal oval washtub in some green plastic buckets from the wooded area, which was behind the trailer.

Prior to the trial, a full suppression hearing was held. At that hearing, testimony was heard from the defendant, Byars, his mother, Mrs. Manning, as well as Agent Catalano. Catalano testified to having received information from a confidential informant who had proven reliable in the past about the presence of marijuana both within and outside Byars's trailer. Catalano alleged probable cause based upon the confidential informant and his own visual inspection of the premises conducted right after lunch on the same day as the search.

Byars asserted at the hearing that there was no basis to search his trailer, as it was not the one described in the search warrant. He argues that his trailer is gray, the only outbuilding on the site of the gray trailer was a brown and green shed located at the end of the trailer, and there was no dog pen on the property.

After hearing the testimony and arguments by counsel, the trial court ruled that the search warrant had been based upon probable cause. He found, based upon the testimony, that this was not a case of having a search warrant issued for one place, and after not finding the contraband in the place requested on the warrant, actually searching another.

At the trial, Byars did not testify in his own behalf. After deliberation, the jury returned a verdict of guilty of manufacturing one kilogram or more of marijuana and possession of one ounce but less than one kilogram of marijuana.

ANALYSIS

I.

THE COURT ERRED IN DENYING TO SUSTAIN THE MOTION TO SUPPRESS IN WHOLE OR IN PART.

Byars argues that the search and seizure of his gray trailer was based upon a warrant not founded on probable cause because the search warrant contained discrepancies in the information furnished to the Judge and the actual search conducted. Byars asserts that the ...


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