Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: King, J.
DATE OF JUDGMENT: July 25, 1995
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: LAWRENCE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: POSSESSION OF A CONTROLLED SUBSTANCE, WITH INTENT TO TRANSFER OR SELL: SENTENCED TO SERVE A TERM OF 30 YRS IN THE CUSTODY OF MDOC; SENTENCE TO RUN CONSECUTIVE TO ANY OTHER SENTENCE NOW BEING SERVED BY SAID DEFENDANT
MOTION FOR REHEARING FILED:
¶1. Adolph Bryant, Jr. was convicted of possession of a controlled substance with intent to distribute, in violation of Miss. Code Ann. § 41-29-139(a)(1) (Rev.1993). He was sentenced to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections, said sentence to be served after any other sentence being served. Aggrieved by his conviction and sentence, Bryant appeals and argues nine points of error:
"(1) The trial court erred by not suppressing the evidence gained pursuant to an illegal searchwarrant which was based solely on hearsay information from a confidential informant whowas neither credible nor reliable, and was not corroborated by personal observation orindependent police work. "(2) The trial court erred by not granting Bryant's motion to suppress items confiscated at thetime of his arrest, as such items were used to prejudice the defendant in the minds of the juryand to discriminate him. "(3) The evidence was insufficient and lacking to prove that the accused, Bryant, possessedthe controlled substance of cocaine with the intent to sell or distribute it. "(4) The evidence lacked sufficiency to support a conviction for constructive possession ofa controlled substance. "(5) The trial court erred when it overruled Bryant's motion to restrict the use of MississippiRule of Evidence 404(b), and by doing so, rendered Bryant's trial constitutionally andfundamentally unfair and unjust. "(6) The trial court erred when it violated Bryant's right to due process, under Article 3, §§ 14and 26 of the Mississippi Constitution and the 6th and 14th amendments of the Constitutionof the United States of America, by refusing Bryant the due process to subpoena witnessesfrom the Mississippi Crime Laboratory. "(7) The lower court erred by allowing jury instructions of the State which stated that thedefendant could be found guilty of possessing a controlled substance with intent to sell anddistribute without any factual evidence to substantiate that alleged charge, thus the State was allowed to place upon Bryant the possession of the drugs and left the jury with only thedecision of whether there was intent. "(8) A. Bryant was denied his constitutional right to a speedy trial. "B. The trial court erred when it arbitrarily overruled Bryant's motion to dismiss thecharging indictment for the prosecution failing to bring Bryant to trial within the statutorilyrequired 270 days, and thereby violated his constitutional rights to due process under Article3 and 14 of the Mississippi Constitution and the 6th and 14th amendments to the Constitutionof the United States of America. "(9) The trial court erred when it denied Bryant's motion for directed verdict, as the weightof the evidence was not enough, nor sufficient enough to support the charge of possessionor constructive possession of a controlled substance with intent to sell or distribute."
Finding no error, this Court affirms the judgment.
¶2. On September 19, 1993, Ricky Davis appeared before Justice Court Judge Maxie Rutland to file an affidavit against Bryant for simple assault. The assault occurred when Davis visited Bryant's house trailer. Bryant, with the aid of a gun, forced Davis to leave the house trailer. In filing his affidavit, Davis stated that Bryant possessed drugs at the trailer. Based upon this information, Judge Rutland issued an arrest warrant for Bryant. The warrant was given to Officer Charles White of the Monticello Police Department to execute.
¶3. After receiving the arrest warrant, Officer White spoke to a confidential informant. This informant told him that Bryant sold crack cocaine at the trailer. The informant also indicated that Bryant kept a rifle on the premises.
¶4. After receiving this information, Officer White requested a search warrant from Judge Rutland. The affidavit for this search warrant listed the following underlying facts and circumstances to justify the issuance of the search warrant:
"That a person who has been used as an informant before, has told us that they saw coke inthe described place giving reason to believe and do believe there to be drugs there and guns,being seen there by a confidential informant".
¶5. The affidavit also stated that Bryant was a convicted felon and not allowed to have a gun in his possession.
¶6. Based upon statements by Davis and the confidential informant, Judge Rutland issued the search warrant for Bryant's trailer and its appurtenances. The warrant authorized a search for controlled substances, paraphernalia, and guns.
¶7. Later that evening, Officer White went to Bryant's trailer and arrested him for simple assault. With the assistance of other officers and a "drug" canine, Officer White conducted a search of the trailer and Bryant's front yard.
¶8. The officers' search of the yard yielded a loaded, thirty (30) caliber rifle from the trunk of a car and a plastic bag containing 14.1 grams*fn1 of crack cocaine from inside an electrical meter box. The meter box was mounted on an utility pole approximately ten feet from the northwest corner of the trailer. A police scanner, a set of "walkie talkies", and a scale were found inside the trailer.
¶9. Bryant was subsequently indicted for possession of cocaine with intent to distribute. His trial on this charge ended in a mistrial. Upon a retrial, he was convicted. Bryant's motion for a new trial and judgment notwithstanding the verdict having been denied, he now appeals his conviction and sentence.
I. THE TRIAL COURT ERRED BY NOT SUPPRESSING THE EVIDENCE GAINEDFROM AN ILLEGAL SEARCH WARRANT WHICH WAS BASED SOLELY ONHEARSAY INFORMATION FROM A CONFIDENTIAL INFORMANT (CI) WHO WASNEITHER CREDIBLE OR RELIABLE AND CORROBORATED BY PERSONALOBSERVATION OR INDEPENDENT POLICE WORK.
¶10. In his first assignment of error, Bryant argues that the search warrant should not have been issued because (a) it was not based upon probable cause, (b) it failed to describe the items to be searched for with particularity, and (c) Judge Rutland was a partial and biased magistrate. This Court finds no merit in Bryant's assertions and discusses each assertion below.
¶11. The determination of whether probable cause supports the issuance of a search warrant requires that this Court consider the "totality of the circumstances". Illinois v. Gates, 462 U.S. 213, 237 (1983). Mississippi adopted this approach in Lee v. State, 435 So.2d 674, 676 (Miss.1983). The court in Lee stated that "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place . . . [T]he duty of a reviewing court is to simply ensure that the magistrate had a substantial basis for concluding that probable cause existed." Id.
¶12. Judge Rutland testified that the issuance of the search warrant was based on statements from Davis and Officer White's confidential informant. Davis indicated that he had seen drugs at Bryant's house trailer. The confidential informant told Officer White that he had seen cocaine and a gun at Bryant's house trailer. After being informed by Officer White that this confidential informant had previously been relied upon, and proved to be credible and reliable, Judge Rutland issued the search warrant. Based upon these facts, this Court finds that Judge Rutland had a substantial basis for concluding that probable cause existed for the issuance of a search warrant. See Smith v. State, 504 So.2d 1194, 1195 (Miss.1987); Jones v. State, 481 So.2d 798, 799 (Miss.1985).
B. Failure to Describe Items in Search Warrant with Particularity ¶13. The search warrant listed three types of items to be seized, controlled substances, paraphernalia, and guns. Bryant contends that these items were not described with particularity in the warrant. This Court finds no merit to this contention. The terms "controlled substances", "paraphernalia", and "guns" were sufficiently definitive to indicate which items should have been included in the search.
C. Neutral and Detached Magistrate
¶14. Bryant alleges that Judge Rutland was not an impartial magistrate because he personally completed the affidavit for search warrant and the actual search warrant.
¶15. "Both the United States Supreme Court and [the Mississippi Supreme Court] have held that the individual issuing the warrant must be a neutral and detached magistrate." McCommon v. State, 467 So.2d 940, 942 (Miss.1985). See also Johnson v. United States, 333 U.S. 10, 14 (1948).
¶16. Judge Rutland testified during the suppression hearing and the trial regarding his issuance of the search warrant. Rutland acknowledged filling out the affidavit for the search warrant and the actual search warrant. He testified that the information contained in the affidavit was received from Officer White. Officer White testified that he signed both forms indicating his assent to the accuracy of this information. This Court does not find that the actions of Judge Rutland were improper.
II. THE TRIAL COURT ERRED BY NOT GRANTING BRYANT'S MOTION TO SUPPRESS ITEMS CONFISCATED AT THE TIME OF HIS ARREST, AS SUCH ITEMSWERE USED TO PREJUDICE THE DEFENDANT IN THE MINDS OF THE JURY ANDTO DISCRIMINATE AGAINST HIM.
¶17. The search warrant authorized Monticello police officers to search Bryant's house trailer, the approaches, and appurtenances for controlled substances, paraphernalia, and guns. The officers seized the following items:
"(a) a gun located in the trunk of a car parked in Bryant's yard, "(b) a police scanner, a set of walkie talkies, and a scale found inside the trailer, and "(c) a bag containing approximately 14.1 grams of cocaine found inside a meter boxmounted outside on a utility pole."
¶18. Bryant argues that the search was illegal, as was the ...