Mosley v. State
| Decision Date | 04 March 1981 |
| Docket Number | No. 52445,52445 |
| Citation | 396 So.2d 1015 |
| Parties | Mary Lee MOSLEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Roy Pitts, Frank Coleman, Meridian, for appellant.
Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P. J., and LEE and BOWLING, JJ.
LEE, Justice, for the Court:
Mary Lee Mosley was convicted in the Circuit Court of Lauderdale County, Honorable Henry Palmer, presiding, on a charge of possession of more than one (1) ounce of marijuana and was sentenced to serve a term of three (3) years with the Mississippi Department of Corrections. She has appealed and assigns six (6) errors in the trial below.
I.
Did the lower court err in refusing appellant's request for a peremptory instruction of not guilty?
On May 25, 1975, about 2:45 p. m., five (5) Lauderdale County officers went to appellant's home in Meridian for the purpose of executing a search warrant and searching her premises. When they arrived, appellant was not at home, but the officers were met by a young black female who admitted them into the house and said she was Linda Williams, appellant's daughter. The search produced 55.9 grams of a substance that was later identified as marijuana. It was found in the closet of appellant's bedroom (the premises were owned by appellant) beneath a dress belonging to appellant. She was arrested in downtown Meridian later that afternoon and was charged with possession of the contraband. On the trial, appellant denied possessing the marijuana or knowing any woman by the name of Linda Williams, and stated that her daughter was Brenda Gathright. Appellant testified that she operated an informal restaurant or cafe in her home where she served meals, and that the dining area was open to patrons, who had access to the remaining rooms of the house. Testimony of a neighbor indicated that when the officers arrived to conduct the search, two (2) individuals were seen hurrying down an alley near the premises.
The State argues that appellant owned the premises, the bedroom and closet where the marijuana was found were occupied and used by her, the dress which concealed the contraband was owned by her, and that appellant had the exclusive constructive possession of the marijuana. To the contrary, appellant contends that she did not have the exclusive constructive possession of the marijuana, but that other people had access to the area and, therefore, she should be discharged. In Powell v. State, 355 So.2d 1378 (Miss.1978), discussing the question, this Court said:
"The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss.1974).
Several cases involving possession of contraband found upon premises to which others have access have come before us and there is no rigid rule that can be stated to govern every conceivable case, but each case must be decided upon its peculiar facts. Although this case is close upon the facts, our judgment is that the evidence was sufficient to raise a jury issue." 355 So.2d at 1379.
See also Curry v. State, 249 So.2d 414 (Miss.1967).
On request for peremptory instruction, the court considers all evidence introduced which is favorable to the State, along with reasonable inferences, and, if they are sufficient to support a verdict of guilty, the request for peremptory instruction of not guilty will be denied. Warn v. State, 349 So.2d 1055 (Miss.1977).
Appellant testified, and admitted on cross-examination, that she had been convicted within the previous two (2) weeks of the unlawful sale of marijuana. While that evidence is admissible only for the purpose of reflecting upon the credibility of the witness, it was a fact which the jury could consider in arriving at its verdict.
We are of the opinion that the evidence for the State, together with reasonable inferences, presented a guilt issue for determination by the jury and the lower court correctly refused the requested peremptory instruction.
II.
Did the lower court err in overruling appellant's motion to suppress the evidence?
The officers appeared before Justice Court Judge Lee Roberts, where a standard affidavit for search warrant was executed by four (4) police officers. A typewritten statement of supporting facts and circumstances constituting probable cause was signed by them and attached to the affidavit. It included the following information:
(a) Police had received numerous complaints from area residents of appellant's drug activity in the house to be searched;
(b) Police had personal knowledge appellant resided in the house;
(c) Appellant had been previously arrested for and pled guilty to charges of unlawful possession of marijuana;
(d) Known drug traffickers were seen entering and leaving the premises; and
(e) A confidential informant had made two (2) prior controlled purchases of marijuana from appellant.
In addition to the underlying statement of facts, the justice court judge received oral information of additional facts from officers who had been sworn by the court.
Appellant contends that the action of the officers and magistrate in obtaining and issuing the search warrant do not meet the rule required in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and subsequent decisions of the United States Supreme Court and this Court on the question. In O'Bean v. State, 184 So.2d 635 (Miss.1966), following Aguilar, this Court stated:
In Strode v. State, 231 So.2d 779 (Miss.1970), the Court commented upon information received from a confidential informant, which was part of the facts presented to the magistrate, and said:
"The two-part test of Aguilar requires a magistrate to be informed of (1) some of the underlying circumstances from which the informer concluded that the defendant was the one guilty of the offense, and (2) some of the underlying circumstances from which the officer concluded that the informer was credible or his information reliable." 231 So.2d at 783.
See also Lampkin v. State, 389 So.2d 113 (Miss.1980).
We hold that the justice court judge had probable cause upon which to issue the search warrant.
III. IV.
Did the lower court...
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Stringer v. State
...conclusions" has been repeatedly condemned since O'Bean. See, e.g., Walker v. State, 192 So.2d 270, 273 (Miss.1966); Mosley v. State, 396 So.2d 1015, 1018 (Miss.1981). See also United States v. Parker, 722 F.2d 179, 182 (5th Cir.1983). That this condemnation of mere conclusions remains a vi......
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...basis for an inference of prejudice when the instructions are read together as a whole, there is no reversible error, Mosley v. State, 396 So.2d 1015, 1018 (Miss.1981). See also Whittington v. State, 523 So.2d 966, 978 (Miss.1988); Ruffin v. State, 447 So.2d 113, 119 (Miss.1984); Pickett v.......
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...and improper conduct as makes it clearly appear that the indictment was coerced or improperly procured. Recently, in Mosley v. State, 396 So.2d 1015 (1981), we addressed this question. The defendant made a motion to quash the indictment because the grand jury room was adjacent to the distri......
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Garcia v. State, 2001-KA-00478-COA.
...basis for an inference of prejudice when the instructions are read together as a whole, there is no reversible error, Mosley v. State, 396 So.2d 1015, 1018 (Miss.1981). See also Whittington v. State, 523 So.2d 966, 978 (Miss.1988); Ruffin v. State, 447 So.2d 113, 119 (Miss.1984); Pickett v.......