STANLEY R. CHESNEY A/K/A STANLEY RAY CHESNEY A/K/A STANLEY CHESNEY, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/20/2012. TRIAL JUDGE: HON. MARCUS D. GORDON. TRIAL COURT DISPOSITION: CONVICTED OF FIVE COUNTS OF EXPLOITATION OF A CHILD AND SENTENCED TO THIRTY YEARS FOR COUNT I, TEN YEARS FOR COUNT II, AND TEN YEARS EACH FOR COUNTS IIIV; WITH THE SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY TO EACH OTHER BUT CONCURRENTLY WITH THE SENTENCES IN COUNTS III-V, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
REVERSED AND RENDERED.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, HUNTER NOLAN AIKENS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD ALAN SMITH.
BARNES, J. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] On December 19, 2011, Philadelphia, Mississippi Police Chief Richard Sistrunk was provided information concerning a possible identify theft. Upon further investigation, an informant, John Paul Dove, implicated Stanley Chesney (Chesney); so Chief Sistrunk obtained a search warrant from Municipal Judge Steven Cumberland for the residence of " Billy Chesney, Stanley Chesney and persons unknown" to recover " one computer with information on Sherri Stewart on identity theft."
[¶2] Upon arriving at the Chesneys' residence, Chief Sistrunk was informed by Chesney that his laptop computer was at a nearby computer repair store. The " Return" portion of the search warrant, listing what items were taken pursuant to the warrant, acknowledged: " Mr. Chesney directed us to Gator Computers in the city to retrieve his computer." When the police went to execute the search warrant and recover the computer at Gator Computers, the clerk at the store, Matthew Kaulfers, alerted them to the presence of certain photographs in the computer's " recycle bin" that he suspected depicted children performing sexual acts. Kaulfers later claimed at trial that Chesney had dropped off the computer earlier that day and told Kaulfers he thought he was being investigated and the files in his recycle bin needed to be deleted. However, upon
cross-examination, Kaulfers admitted that he could not actually remember when Chesney made those statements and that this information was not contained in his statement to police.
[¶3] Chesney's computer was taken to the police department, and Chris Stokes, who worked on computers for the Philadelphia police, was asked to do a search of the computer. He quickly located photographs that possibly depicted child pornography. Stokes was then advised to stop the search, and Chief Sistrunk began the process of obtaining a second search warrant for those files, with the assistance of the Mississippi Attorney General's cybercrime division. In the " Statement of Underlying Facts and Circumstances" to support the second warrant, Chief Sistrunk stated that Stokes had alerted him to " what could possibl[y] be photos of underage boys in the nude." The statement made no mention of Kaulfers or his comments. Chief Sistrunk signed the affidavit, and Judge Cumberland signed the second search warrant.
[¶4] Pursuant to the second warrant, Deputy Commander Jay Houston of the cybercrime division searched Chesney's computer and found five images depicting child pornography in the computer's recycle bin. Chesney was brought in for questioning and subsequently confessed to possessing the photographic files, claiming that he had found the files on a disk at a relative's house and admitted that he knew that child pornography was illegal.
[¶5] Chesney was indicted on five counts of exploitation of a child. At trial, defense counsel moved to suppress the evidence because the first search warrant for identity theft was not based on credible or reliable information. A suppression hearing was conducted to determine whether probable cause existed to support the issuance of the first warrant. After the testimony, the circuit judge denied Chesney's motion, and the trial resumed. The circuit court also denied defense counsel's motion to have Chesney's statement to police " suppressed as being involuntary due to the fact that the statements were not recorded."
[¶6] Chesney was convicted on all counts by a Neshoba County Circuit Court jury and sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC). He received thirty years for Count I, and ten years for Count II, which was to run consecutively to the sentence in Count I. For Counts III-V, Chesney was sentenced to ten years for each count, with the sentences to run concurrently with the sentences in Counts I and II.
[¶7] Chesney filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The circuit court denied his motion, and he now appeals. We find that Chesney's first claim, regarding the failure to instruct the jury on the element of venue, warrants a reversal of the judgment and a remand for a new trial.
[¶8] We further conclude that Chesney's second claim of error -- that the circuit court erred in denying his motion to suppress evidence " because probable cause did not exist for the issuance of the first search warrant" -- is also meritorious. Chesney contends that all of the evidence implicating him in the instant crimes was
obtained derivatively as a result of the first warrant. Thus, Chesney claims that the evidence is " fruit of the poisonous tree," and " the appropriate remedy is to reverse and render his convictions and sentences." We agree with Chesney that the suppression of the " tainted" evidence would remove any legally sufficient basis to support his convictions. Therefore, we reverse and render the circuit court's judgment.
I. Whether the circuit court erred in failing to instruct the jury on the essential elements of the crime.
[¶9] Chesney contends that the circuit court committed fundamental plain error by failing to instruct the jury on the essential elements of the crime. Specifically, Chesney claims that the instruction failed to instruct the jury on the essential element of venue. Jury Instruction S-1 stated identically as to each of the five counts:
The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in the Count [ ] of the indictment and testified about, that the Defendant, Stanley R. Chesney, did willfully, unlawfully and feloniously have in his possession a visual depiction of an actual child engaging in sexually explicit conduct, then it is your duty to find the defendant guilty as charged in Count [ ].
[¶10] Although the State argues this issue is procedurally barred due to Chesney's failure to object to the instruction, the Mississippi Supreme Court has stated that " instructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object at trial." Boyd v. State, 47 So.3d 121, 127 (¶ 22) (Miss. 2010) (quoting Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss. 1998)). " [T]he failure to submit to the jury the essential elements of a crime amounts to plain error." Pollard v. State, 932 So.2d 82, 87 (¶ 11) (Miss. Ct. App. 2006) (citation omitted). " Venue is an indispensable element of any criminal prosecution." Hawkins v. State, 90 So.3d 116, 119 (¶ 6) (Miss. Ct. App. 2012) (citing Smith v. State, 646 So.2d 538, 541 (Miss. 1994)). Accordingly, we find this issue is not barred from consideration.
[¶11] In Rogers v. State, 95 So.3d 623, 632 (¶ 30) (Miss. 2012), the Mississippi Supreme Court reversed a conviction and remanded for a new trial because the jury was not instructed " that it had to find from the evidence and beyond a reasonable doubt that the crime had occurred in Scott County, Mississippi." Rather, the jury instruction provided that the jury had to find that the defendant committed the offense " at the time and place charged in Count Two of the indictment and testified about[.]" Id. at 631-32 (¶ 28). The supreme court concluded: " Given that venue is 'essential' to a criminal prosecution, and that venue may be raised for the first time on appeal, we find that such an obvious omission is fatal and requires reversal." Id. at 632 (¶ 30) (internal citation omitted).
[¶12] We find the record supports Chesney's claim. Like Rogers, the written jury instructions in the present case provided that the jury had to find the crime occurred " at the time and place charged" in each count. Also, the indictment was not submitted to the jury for consideration, " and the 'time and place testified about' was far from definite." Id. at (¶ 28). Moreover, when reading the instructions to the jury, the circuit court did not include the portion of the written instruction quoted above; thus, nowhere
was the jury instructed in open court that the location of the conduct was an element of the offense. While there was some proof of venue elicited during the trial, the jury was never instructed that it had to find that the crimes occurred in Neshoba County. Accordingly, this issue warrants a reversal of the judgment and a remand for a new trial.
II. Whether the circuit court erred in denying Chesney's motion to suppress the evidence obtained through the search warrant.
[¶13] At trial, defense counsel " move[d] to suppress all evidence gained and acquired as a result of [the first] search warrant." Counsel argued that the affidavit and statement of facts by Chief Sistrunk, which had been provided to Judge Cumberland in order to obtain the original search warrant, failed to establish the informant's reliability; thus, there were no grounds for a valid search warrant. The circuit court overruled Chesney's motion to suppress the evidence.
[¶14] On appeal, Chesney reasserts that " probable cause did not exist for the issuance of the first search warrant" ; therefore, " all evidence implicating [him] for the instant offenses was obtained derivatively as a result of this illegal warrant [and] must be suppressed as fruit of the poisonous tree." He, therefore, contends that he " is entitled to have this Court reverse and render his convictions and sentences." The State counters that there was sufficient " credible information" to justify the issuance of the first warrant.
[¶15] A " mixed standard of review" is employed when considering the circuit court's denial of a motion to suppress. Gillett v. State, 56 So.3d 469, 482 (¶ 21) (Miss. 2010) (citing Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss. 2006)).
Determinations of reasonable suspicion and probable cause are reviewed de novo. However, this Court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Thus, this Court is restricted to a de novo review of the trial judge's findings using the applicable substantial evidence/clearly erroneous standard. Finally, this Court reviews the admission or exclusion of evidence for abuse of discretion.
Id. (internal citations and quotation marks omitted).
A. Probable Cause
[¶16] Our supreme court has held that a court " may issue a [search] warrant based only upon probable cause, which is determined from the totality of the circumstances." Batiste v. State, 121 So.3d 808, 859 (¶ 129) (Miss. 2013) (citing Hughes v. State, 90 So.3d 613, 628 (¶ 43) (Miss. 2012)).
The 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.
Id. (quoting Lee v. State, 435 So.2d 674, 676 (Miss. 1983)) (internal quotation marks omitted). " ...