Joyce v. State

• Decision Date: 06 January 1976
• Docket Number: No. 48701,48701
• Citation: 327 So.2d 255
• Parties: John Michael JOYCE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 255

327 So.2d 255

John Michael JOYCE v. STATE of Mississippi.

No. 48701.

Supreme Court of Mississippi.

Jan. 6, 1976.

Rehearing Denied Jan. 27, 1976.

W. S. Moore, Julie Ann Epps, Thomas J. Ginger, Jackson, for appellant.

A. F. Summer, Atty. Gen., by Wayne Snuggs and Vera Madel Speakes, Sp. Asst. Attys. Gen., Jackson, for appellee.

Before GILLESPIE, C.J., and SMITH and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

John Michael Joyce was indicted, tried and convicted in the Circuit Court of Rankin County, Mississippi, of the crime of possession of marijuana with intent to sell. His sentence was eight years in the Penitentiary.

About 2:00 p.m., August 27, 1974, Alvin E. Berry, J., an agent with the Mississippi Bureau of Narcotics, received a telephone call from a confidential informant. The informant advised Agent Berry that he had information that approximately 60 pounds of marijuana would arrive later that afternoon at the Jackson Municipal airport, and that Buddy Rogers and Jeb Grace would pick it up. Berry asked for more information and the informant called back in about 45 minutes and told him that there had been a change in plans and that Larry Wann would meet a subject arriving from Phoenix, Arizona, around 4:00 or 5:00 p.m. with the 60 pounds of marijuana. According to the informant, Wann would buy the marijuana and resell it to Grace and Rogers.

Berry testified that he checked the Bureau's card index and found a card listing Larry Wann as a possible drug trafficker. He then got from the driver's license bureau of the Mississippi Highway Patrol an exact description of Wann. Berry, along with four other Bureau Agents, when proceeded to the Jackson Municipal Airport to further investigate and check out the information supplied by the informant.

The agents learned that a flight from Phoenix, Arizona, was due to arrive at 5:16 p.m. At approximately 5:10 p.m., as had been predicted by the informant, an individual matching Wann's description was observed waiting at Gate 15 for the arrival of Delta Flight 520 from Phoenix, Arizona. Wann met appellant and Jo Ann Saczynski when they deplaned, and the three of them went to the baggage claim area where Wann picked up two brown suitcases.

Berry observed from the way Wann was walking that the two suitcases were quite heavy. Wann carried them to his car and put them in the trunk. As all three walked to Wann's car, the agents observed them nervously looking over their shoulders as if to see if any one were watching or following them. Wann drove very slowly from the parking lot and Berry noted that he frequently looked in the rearview mirror and that Joyce and Saczynski frequently looked behind them through the rear window. When Wann turned onto state highway 475 and reached a point a mile or so from the municipal airport, Berry turned on his blue light and stopped Wann's car. The other four agents also stopped and approached Wann's car.

At Berry's request, Wann opened the trunk of his car, and, upon inquiry by Berry Wann indicated that the suitcases belonged to appellant Joyce. Appellant refused Berry's request to open the suitcases unless the agents had a search warrant. Agent Wallace forcibly opened the suitcases and found five white plastic bundles, each containing three kilo bricks of marijuana wrapped in brown paper in one suitcase, and four white plastic bundles, each containing three kilo bricks of marijuana wrapped in brown paper in the other suit-case. A kilo brick usually weighs about 2.2 pounds, so the 27 kilo bricks weighed approximately 59.4 pounds.

All three occupants of the car, Joyce, Wann and Saczynski, were then placed under arrest, explained their rights, and then taken to the Rankin County jail for confinement.

Appellant first contends that he was convicted of possession with intent to sell marijuana, which this Court has held is not a crime under the laws of the State of Mississippi. Appellant is correct.

In Schloder v. State, 310 So.2d 721 (Miss.1975), we said that possession of marijuana with intent to sell was not made a criminal offense under the provisions of Mississippi Code Annotated section 41-29-139(a), (Supp.1974), but that under the provisions of section 41-29-139(d)(2)(B), (Supp.1974), possession of more than one ounce of marijuana was made a criminal offense.

Since the evidence was clear and uncontradicted that Joyce had in his possession 59.4 pounds of marijuana, the only verdict that the jury could return would be that Joyce was guilty of the crime of having more than 1 ounce of marijuana in his possession. Since the indictment properly charged this lesser offense, we affirm the conviction of this lesser offense, but remand this case for resentencing under section 41-29-139(d)(2)(B), (Supp.1974), for the offense of possession of more than one ounce of marijuana.

Appellant also assigns as error the overruling of his motion to quash indictment because the grand jury returning the indictment was not legally constituted and for that reason the indictment would be void. This argument was based on the fact that appellant was indicted on October 9, 1974, by the grand jury empaneled at the July 1974 term of the Rankin County Circuit Court, which grand jury by order of the circuit court dated September 30, 1974, was 'recalled into session on October 8, 1974 at 9:00 o'clock A.M. to consider such matters as may properly be presented to it.'

Appellant's contention is that the grand jury empaneled at the July 1974 term went out of existence when the July term ended, and that also the August, 1974, term intervened. This would have been a good argument if the offense had occurred and if the appellant had been indicted before February 1, 1973, but by House Concurrent Resolution No. 4 of the 1972 regular session of the Legislature, section 264 of Article 14 of the Mississippi Constitution was amended. H.C.R. No. 4 was entitled:

'A CONCURRENT RESOLUTION to amended Section 264, Mississippi Constitution of 1890, to allow the Grand Jury to remain empaneled between term of Circuit Court.'

This amendment was ratified by the electorate and was inserted in the Constitution on November 22, 1972. Section 264, as amended, reads:

'The legislature shall, by law, provide for the qualifications of grand and petit jurors. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors. After February 1, 1973, grand jurors may serve both in termtime and vacation and any circuit judge may empanel a grand jury in termtime or in vacation.' (Emphasis added).

The primary purpose in amending Section 264 was to allow a grand jury to remain empaneled until the next term of criminal court. The intervening August 1974 term of court, according to legislative mandate in Mississippi Code Annotated section 9-7-53 (1972), was 'for civil business exclusively'. The October, 1974, term was the next term of court at which criminal business could be heard and a grand jury empaneled, but this term could not legally open until October 14, 1974. The court was correct in recalling the July 1974 grand jury to act in vacation between terms.

Appellant next contends that: 'The trial court erred in overruling Appellant's Motion to Suppress Evidence seized as a result of an unreasonable, unlawful and unconstitutional arrest, search and seizure.'

Joyce argues that 'at the time of the arrest, the officers, who acted without a warrant, lacked probable cause to believe that a felony had been committed or that Appellant and his co-indictees were the persons who had committed that felony so as to justify the warrantless search of the automobile and its contents as incident to a lawful arrest.'

In Wolf v. State, 260 So.2d 425 (Miss.1972) (cert. denied, 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492), this Court said:

'On the probable cause question, the standards applicable to a search of an automobile without a warrant are substantially the same as those required for a search warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

'Aguilar (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)) laid down the two-pronged test applicable to the factual basis supporting a magistrate's assessment of probable cause for a search warrant, and that test applies with respect to an officer's assessment of probable cause for a warrantless search. As already stated, the defendant in this case concedes that the informer involved here was reliable under the Aguilar test. It remains to be determined whether the evidence offered on the motion to suppress was sufficient to meet the Aguilar basis-of-knowledge test (as) applied and expounded on in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the later case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Court again considered the requirements of the underlying factual basis necessary for the issuance of a search warrant, and enunciated the court's commonsense and nontechnical approach in reviewing probable cause questions by quoting from United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows:

'(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one here, must be tested in a commonsense and realistic fashion. They are normally drafted by the non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. (91 S.Ct....