Dixon v. State, 54556

• Decision Date: 20 March 1985
• Docket Number: No. 54556,54556
• Citation: 465 So.2d 1092
• Parties: Randy DIXON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1092

465 So.2d 1092

Randy DIXON v. STATE of Mississippi.

No. 54556.

Supreme Court of Mississippi.

March 20, 1985.

H. Lee Bailey, Jr., Bailey & Bailey, Winona, for appellant.

Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court:

A five-count indictment was returned against Randy Dixon in the Circuit Court of Montgomery County, charging him with possession of Schedule II controlled substances methaqualone, meperidine, and secobarbital; and Schedule IV controlled substances diazepam and ethchlorvynol. Dixon was convicted on all five counts and sentenced as an habitual criminal to serve a term of three years as to count one; three years as to count two; three years as to count three; one year in the county jail as to count four; and one year in the county jail as to count five. The sentences were to run consecutively with no reduction, suspension, or eligibility for parole or probation.

On this appeal, Dixon assigns seven errors:

1. The indictment against the appellant was defective and the appellant's demurrer should have been sustained;

2. Controlled substances taken from the appellant's person should have been suppressed by the lower court;

3. Controlled substances taken from the appellant's automobile should have been suppressed by the lower court;

4. Statements made by appellant to police officer should have been suppressed by the lower court;

5. Introduction into evidence of certain syringes by the appellee were prejudicial to the appellant;

6. The involvement of the district attorney in the investigatory stages of this case subjected the appellant to a lack of protection of his constitutional rights;

7. Appellant's motion for a directed verdict should have been sustained by the lower court.

In April 1982, Police Officer John Johnson and Highway Patrolman Jerry Butler were investigating a burglary of the Plaza Drug Store in Winona. On April 29, at approximately 10:30 p.m., Butler phoned Johnson and advised him a reliable source had informed him that Randy Dixon had possession of some of the stolen substances in a brown paper bag in a closet at Dixon's home.

Afterward Johnson, Butler, and Montgomery County District Attorney Ed Snyder met at the police department and, according to Johnson, "started to work on the affidavit." When it was completed, Butler and Johnson signed the affidavit for search warrant before Donald Bond, the City Judge of the City of Winona. Bond then issued a search warrant authorizing the search of Dixon's house and any vehicles on the property.

Johnson and Butler arrived at Dixon's residence approximately 5:30 a.m. on April 30. Randy Dixon answered Johnson's knock. When Johnson stepped inside, Randy's brother, Stanley Dixon, came into the room. Johnson then informed both men he had a search warrant for the house. Immediately afterward Randy reached into his right front pocket. Johnson testified, "At that time I grabbed his hand and told him to let me see what he had. At that time ... I found some tablets that I believed to have been controlled substances." Johnson then placed Randy under arrest. According to Johnson, Randy made a statement to the effect of "Oh, you're not going to charge me with these."

Johnson testified, "At that time I told him not to say anything to him until I'd had a chance to advise him of his rights. I also told him to step over to the kitchen table and to take everything out of his pockets." After Randy complied, Johnson gave him his Miranda warning. Johnson also told Randy the officers "did not want to ask him any questions and would rather that he would sit down and not make any statements ..."

However, Randy made several comments as the officers conducted the search of the house. First, he told him they were not going to find anything. Later when Johnson found three ampules of the substance labeled Demerol in Randy's dresser drawer, Randy stated, "I bought that with my own money. I paid for that." According to Johnson, Randy attempted to retrieve the vials of Demerol and continued to assert ownership of them.

Johnson testified Randy appeared to him "to be under the influence somewhat of drugs or alcohol." Although his speech was not slurred and he was not staggering, Randy looked pale and "somewhat relaxed," seeming "to be coming out from under the influence of something, more than at the point of a real peak high." Nevertheless, Randy appeared to understand his Miranda rights.

Randy's brother, Stanley, testified that on the morning of the arrest Randy was "kind of groggy and slurry in talk and everything" and "acted like he was in ... another world." This led Stanley to believe Randy had been taking drugs.

Following his arrest Dixon announced he wanted to get some cigarettes out of his car parked in the driveway. Officer Charlie Brown escorted him outside and stood beside the back door of the car while Dixon looked under the floor mat. Brown testified, "Well, he disturbed the floor mat, and I noticed a white tip of something showing under the gas pedal ..." Dixon returned to the house, leaving Brown at the car. Having discovered some capsules underneath the accelerator pedal, Brown called Officer Butler for assistance. Butler removed the capsules, which were introduced into evidence at trial.

The officers took Randy to the police department at approximately 7:00 a.m. There he again stated he understood his rights. At this time he said he did not want to make a statement before talking with his attorney.

I. SHOULD THE COURT HAVE SUSTAINED DIXON'S DEMURRER TO THE MULTI-COUNT INDICTMENT?

We have recently decided four cases concerning this issue. The first, Stinson v. State, 443 So.2d 869 (Miss.1983), involved a defendant charged with (1) aggravated assault upon a law enforcement officer, (2) kidnapping, and (3) attempted escape from the Department of Corrections by violence. We noted these were "three separate offenses, each carrying different penalties and having different elements constituting the crimes." 443 So.2d at 873. Having reviewed prior case law on this point, we concluded Stinson's multi-count indictment was improper.

Supporting this holding were several early cases. First, State v. Rees, 76 Miss. 435, 22 So. 829 (1898), held the trial court was within its discretion in sustaining defendant's demurrer to an indictment charging "two distinct felonies of different degrees and different punishments." ¹ 76 Miss. at 437, 22 So. at 829.

Twenty-five years later this holding was reaffirmed in McEwen v. State, 132 Miss. 338, 96 So. 690 (1923), which involved a multi-count indictment charging defendant with forcible rape and with carnal knowledge of an "unmarried female person of previously chaste character younger than himself, and over twelve and under eighteen years of age ..." 132 Miss. at 343, 96 So. at 691. Citing State v. Rees, the court stated,

The two felonies charged in the indictment differ materially, both in their elements and their punishments, and consequently the court below should have either sustained the demurrer to the indictment in whole or to one count, or have compelled the state to elect on which count the appellant should be tried. (Emphasis added.)

132 Miss. at 344, 96 So. at 691.

A third case, Woods v. State, 200 Miss. 527, 27 So.2d 895 (1946), held the trial court had improperly allowed the state to consolidate for trial the three alleged crimes of (1) exhibiting a deadly weapon, (2) carrying a concealed weapon, and (3) assault and battery with fists. The court noted first that the three crimes contained different elements. The effect of consolidation was

[t]he accused had to be prepared to meet evidence of three distinct crimes, where much of the evidence as to one was not competent as to the others. Certainly the accused was confounded in his defense and evidence was introduced before the jury which would not have been competent upon separate trials.

200 Miss. at 534, 27 So.2d at 897.

Approximately one month after Stinson was decided, we followed it to hold defective an indictment which charged a defendant with kidnapping, rape, and two other crimes. ² Friday v. State, 462 So.2d 336, 338 (Miss.1985). Shortly thereafter, we applied the same rule to a two-count indictment charging aggravated assault and armed robbery. Bennett v. State, 451 So.2d 727 (Miss.1984). Our third post-Stinson case on this issue, Johnson v. State, 452 So.2d 850 (Miss.1984), held improper a two-count indictment charging grand larceny and automobile burglary.

As stated earlier, Dixon was charged in a single indictment with five counts of possession of controlled substances. Although at first glance the above cited cases may appear to require vacation of four of the five sentences imposed, we are of the opinion that this case contains a crucial factual distinction. While Stinson, its predecessors and progeny all involved multi-count indictments for different felonies with various elements, the five crimes charged in Dixon's indictment have essentially the same components.

Mississippi Code Annotated, Section 41-29-139(c) provides:

It is unlawful for any person knowingly or intentionally to possess any controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article. (Emphasis added.)

Thus this statute makes illegal the possession of a controlled substance regardless of its classification. The elements of the crime are (1) knowing or intentional possession of the controlled substance, (2) obtained without a valid prescription or order of a practitioner in the course of his professional practice.

Dixon was charged with and convicted of possessing five controlled substances: (1) methaqualone (Lemon's Quaalude); (2) meperidine (Winthrop's Demerol); (3) sec...