Lee v. State

• Citation: 435 So.2d 674
• Decision Date: 13 July 1983
• Docket Number: No. 53660,53660
• Parties: Carl E. LEE and Travis Howard Lee v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 674

435 So.2d 674

Carl E. LEE and Travis Howard Lee v. STATE of Mississippi.

No. 53660.

Supreme Court of Mississippi.

July 13, 1983.

Rehearing Denied Aug. 17, 1983.

Fielding L. Wright, Pascagoula, Joe Ray Langston, Duncan Lott, Langston & Lott, Booneville, for appellants.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before BROOM, P.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

This case is an appeal from the Circuit Court of Jackson County, wherein the appellants, Carl E. Lee and Travis Howard Lee, were convicted of two drug-related crimes. The first count charged both defendants with possession of certain controlled substances, and the second count charged both defendants with possession of marijuana with intent to deliver the same. Following a guilty verdict, the defendants each received a prison term of three years on the first offense and a term of eight years on the second offense to run concurrently. The appellants assert errors in:

(1) The trial court's failure to suppress incriminating evidence obtained as a result of an allegedly inadequate search warrant procedure, and

(2) The alleged improper comments of the prosecution during argument.

FACTS

Officers Terry Warden and Ronnie Wilks of the Jackson County Sheriff's office received information from an informer that there were narcotics at the apartment of the defendants. They obtained a search warrant from a justice court judge at approximately 10:45 p.m., on January 29, 1980, and searched the defendants' residence. The search resulted in the confiscation of one capsule of secobarbital and amobarbital, one methaqualone tablet, 197 capsules containing phencyclidine and 1803.6 grams of marijuana. The officers also found three persons on the premises. Carl E. Lee answered the door. In addition, a female by the name of Debra Fuentes was found upstairs with the other defendant, Travis Howard Lee.

Incriminating statements were taken from the appellants when they were taken to the sheriff's office. They did not say anything about who the narcotics belonged to, but they did say that the girl had nothing to do with the narcotics that were found at the house.

Before trial, the defendants pled guilty to the offenses. However, they were subsequently allowed to withdraw their guilty pleas, so that their defense counsel could file a motion to suppress the tangible evidence obtained during the search of the house. That motion was heard prior to the trial and denied by the trial judge.

LAW

I.

The first question presented for determination here is whether or not the affidavit for a search warrant and the sworn testimony of the officers stated sufficient facts and circumstances to enable the justice court judge to ascertain that probable cause existed for the issuance of the search warrant.

(A.)

The United States Supreme Court has stated in general language that probable cause exists when the facts and circumstances in a given situation are sufficient to warrant a man of reasonable caution to believe that seizable objects are located at the place to be searched. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). Moreover, the Court has recently, while abandoning past case law, ¹ addressed the problem of establishing probable cause when police officers use information obtained from an informant. In Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Court stated:

For all these reasons, we conclude that it is wiser to abandon the 'two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.... 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. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed.... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. (Citations omitted). [Id. at 2332].

(B.)

In the instant case, the officers submitted an affidavit along with sworn unrecorded oral testimony. The handwritten facts, stated in both the affidavit and the warrant, which aided in establishing probable cause may be summarized as follows. First, both Wilks and Warden had known their unidentified informant for a period of one year. Second, both officers had placed the appellants' apartment under surveillance for one week.

In addition, the warrant and affidavit were "form" documents which contained pre-typed language common to all warrants and affidavits of this kind. Some of those sentences were scratched out, some had the notation N/A written by them, and some were left unmarked. Two of the unmarked sentences stated that the informant had provided accurate information in the past which had led to convictions of other people.

The supplemental testimony given by the officers also aided in establishing probable cause. See Wilborn v. State, 394 So.2d 1355 (Miss.1981); Prueitt v. State, 261 So.2d 119 (Miss.1972). Warden testified that he told the justice court judge that he and Wilks had received information from other informers to the effect that Howard Lee was seen selling narcotics at a game room and at his apartment. Warden added that he further confirmed or corroborated the informer's personal information in part because the descriptions of the appellants' address, the appellants' vehicle, and the occupants of the appellants' apartment were identical to that seen during the surveillance. Warden also explained to the judge his informer's successful record in providing information for criminal convictions.

In conclusion, the justice court judge could have easily determined that there was probable cause for issuing the warrant. The informer's information was based on personal observations. Moreover, there was both corroboration of the informer's account through various sources as well as other information which indicated that the informer had given reliable information in the past. We find no reversible error in this assignment.

II.

The last issue to be resolved is whether the prosecutor committed reversible error by allegedly emphasizing during closing arguments that the appellant failed to testify. The questioned comments are as follows:

Did these defendants have possession of these drugs or did they not have possession of these drugs? Well, ladies and gentlemen, I think there can be but little doubt. There can be ... It's undisputed that these defendants did have possession of these drugs. Fact: On the 29th of January, 1980, the Mississippi Bureau of Narcotics and the Jackson County Sheriffs Department received information that these drugs were at these defendant's house. That's undisputed fact. Fact: On that same day they obtained a search warrant and went to their apartment and searched and found all that dope. That's a fact, undisputed. Fact: When the crime lab took it up and tested it and ran all their experimental tests and all that fancy equipment that they've got over there, they found marijuana, they found phencyclidine, and they found secobarbital and qualude. These are all facts, they are undisputed facts.

BY MR. WRIGHT: Now we're going to object, Judge. The way he has stated it, "undisputed". On the three witnesses, each one he said that it was undisputed. Therefore, that's commentary on the fact that the defendants did not offer any evidence.

BY MR. LANGSTON: Or testify.

BY MR. WRIGHT: And we move for a mistrial.

BY THE COURT: Overruled.

(A.)

An accused has the right to remain silent, as guaranteed by the Fifth Amendment to the United States Constitution. Moreover, "the failure of the accused, in any case, to testify shall not ... operate to his prejudice or be commented on by counsel." Miss.Code Ann. Sec. 13-1-9 (1972). See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Our statute has been strictly construed as prohibiting any reference whatsoever by the prosecutor regarding the defendant's failure to testify. In Yarbrough v. State, 70 Miss. 593, 12 So. 551 (1893), the Court stated The word 'comment,' as employed in the statute, does not mean to criticize or condemn or anathematize the accused on his failure to testify. It forbids in unmistakable language any comment, friendly or unfriendly. It forbids any remark of any character in any words upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel.... [70 Miss. at 594, 12 So. at 551].

Nonetheless, there are times when such comments, similar to those at issue, do not actually constitute error; or if considered error, they do not rise to the level of reversible error.

(B.)

(1.)

For example, although it is error to comment on the accused's failure to testify, it is not error to comment on the defense's failure to offer any evidence whatsoever to counter or explain the state's evidence. We have several cases which have permitted comments similar to those in this case where the defendant failed to produce an available witness or other possible evidence to possibly dispute the state's evidence. Conway v. State, 397 So.2d 1095 (Miss.1980); Clark v. State, 260 So.2d 445 (Miss.1972); Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946); Hanna v. State, 168 Miss. 352, 151 So. 370 (1933...