Petti v. State, 91-KA-00442-SCT

Citation666 So.2d 754
Decision Date30 November 1995
Docket NumberNo. 91-KA-00442-SCT,91-KA-00442-SCT
PartiesAristobolo PETTI v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Leon Mangum, Decatur, for appellant.

Michael C. Moore, Attorney General, Jackson, MS; Mary Margaret Bowers, Sp. Ass't Attorney General, Jackson, for appellee.

PRATHER, Presiding Justice, for the Court:

Aristobolo Petti prosecutes an appeal from his conviction of a cocaine possession and the three (3) year sentence imposed by the trial court. Three (3) issues are raised by Petti on appeal.

First, he contends the trial court erred in denying his request for a two-theory instruction claiming the State's case was based entirely upon circumstantial evidence. The Court finds no merit in this claim.

Second, Petti contends the verdict of the jury was against the overwhelming weight of the evidence. Given the nature and disposition of Petti's final claim, the Court finds it unnecessary to assess the weight of the evidence.

The disposition of this appeal is controlled by Petti's third claim. Petti argues that a search warrant affidavit contained false information and lacked sufficient truthful underlying facts and circumstances to justify a neutral and detached magistrate in finding probable cause for issuance of a search warrant. Finding that the record fails to reflect the existence of a substantial basis for the issuing magistrate's determination of probable cause, this Court reverses and remands Petti's conviction.

I. FACTS

On November 2, 1990, around 5:00 p.m., Larry Parks, a police captain with the Newton Police Department, obtained a search warrant from Municipal Judge Edmund Phillips authorizing the search of a mobile home in Newton occupied and controlled by Lynn Lindsey. The basis for obtaining the first search warrant--hereinafter referred to as the "mobile home" warrant--was information received by Parks from a confidential source. Aristobolo Petti and several other persons were present at the mobile home during a search of the trailer which yielded some illegal drugs. A search of the Petti's person at this location produced a motel room key and a large sum of currency. This warrant is not an issue in this case.

Later that evening, at 8:45 p.m., Captain Parks, utilizing information obtained during the afternoon search of Lindsey's trailer, secured a second warrant from Judge Phillips--hereinafter referred to as the "motel room" warrant which is the issue in this case--authorizing the search of room 108 of the Days Inn Motel in Newton. This was the room occupied by the defendant, Aristobolo Petti, during his stay in Mississippi.

During the subsequent search of room 108 conducted by Captain Parks and Agent Gardner, Parks found in the bathroom area inside a trick-or-treat candy bag, a small plastic film canister containing a white powdery residue. A blue Kleenex tissue stained with residue was found inside a waste basket. Ted Chapman, a forensic scientist with the Mississippi Crime Laboratory, testified the residue inside the canister and the small crystals clinging to the tissue was cocaine.

Petti, a Panamanian residing in Houston, Texas, testified in his own behalf during a suppression hearing. Petti denied he possessed the cocaine found in the motel room registered in his name alone and occupied, according to information contained on the motel registration card, by at least one other person.

Petti, who did not deny the cocaine was found in his motel room, testified he had come to Newton to visit a woman he met at a wedding in Houston, Texas, and that he had traveled to Mississippi with two companions who shared his room at the Days Inn the night of November 1st. He further testified that two women had been inside the room with his two companions, and he had seen them smoking some marijuana and cocaine prior to his departure from the room the morning of November 2nd.

According to Petti, the cash found on his person was his earnings from painting houses and included proceeds from the sale of a gold chain, rings, and a camera. Although Petti testified he had never been to Newton, Mississippi prior to November 1, 1990, Officer Parks testified during rebuttal he had seen Petti in the area approximately two weeks prior to this incident.

The suppression hearing was conducted outside the presence of the jury after Petti, via a motion to suppress, assailed the legality of the warrant authorizing a search of room 108. Petti claimed then, as he does now, the warrant-issuing magistrate did not have probable cause for issuance of the "motel room" warrant.

Both Captain Parks and Judge Phillips testified with respect to the underlying facts and circumstances leading to Judge Phillips' finding of probable cause. The underlying "facts and circumstances sheet" attached to the affidavit was supplemented with oral testimony given under the trustworthiness of the official oath. There was a major discrepancy between the information contained in the affidavit and the testimony elicited during the suppression hearing. Nevertheless, at the close of the suppression hearing, the circuit judge ruled that under the totality of the circumstances test, there was probable cause for issuance of the "motel room" warrant.

II. LEGAL ANALYSIS
A. The Two-theory Instruction

Petti argues the trial judge committed reversible error when he refused to grant jury instruction D-7, a so-called "two-theory" charge, which reads as follows:

The Court instructs the jury that if there be facts or circumstances in this case susceptible of two interpretations, one favorable and the other unfavorable to the accused, and when the jury has considered such facts and circumstances with all the other evidence, there is a reasonable doubt as to the correct interpretation, then you must resolve such doubt in favor of the accused and place upon such facts and/or circumstances the interpretation favorable to the defendant.

This Court has held on numerous occasions that it is only in cases consisting entirely of circumstantial evidence that an instruction must be given which requires the jury to resolve, in favor of the accused, doubt over circumstances susceptible of two interpretations. Medley v. State, 600 So.2d 957 (Miss.1992); Barnes v. State, 532 So.2d 1231 (Miss.1988). Where the evidence is purely circumstantial, the trial court must grant a "two-theory" instruction. Parker v. State, 606 So.2d 1132, 1140-41 (Miss.1992); Henderson v. State, 453 So.2d 708, 710 (Miss.1984).

Petti's complaint might well have merit were it not for two important pieces of direct evidence that were vital to conviction. First, the evidence developed at trial established directly that the motel room in which the cocaine was found was registered in the name of Petti alone and only one key had been issued to its occupant. The room key, as well as over $2000 in United States currency, was found on the defendant's person prior to the search of his room.

Second, Petti testified in his own behalf that his two companions, with whom he allegedly shared room 108, smoked cocaine inside the room before he left on the morning of November 2, 1990. Thus, Petti's own testimony places cocaine inside room 108. This Court finds no error in the trial court's refusal to grant the two-theory instruction.

B. Weight of Evidence

Given the unlawfulness of the search and suppression of the evidence, it is unnecessary to address Petti's weight of the evidence claim. We simply note that evidence of constructive possession was slight.

C. Invalid and Unlawful Search Warrant

Petti contends the cocaine residue found inside the motel room registered in his name was inadmissible because it was seized pursuant to a search warrant issued without probable cause. In resolving this issue, our task, as a reviewing Court, is to insure that the issuing magistrate had a "substantial basis for ... conclud[ing] that probable cause existed" for issuance of the search warrant. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).

The federal case law which guides our analysis of this question is as follows. Gates dismantled the analytical superstructure of Aguilar v. State of Tex., 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). It substituted a "totality of the circumstances" test for the arguably more restrictive two-pronged test of Aguilar- Spinelli. The two prongs of "veracity" and "basis of knowledge" were not, however, abandoned totally; rather, they are still "highly relevant" in the totality analysis.

First, the information necessary to establish probable cause "must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found." Rooks v. State, 529 So.2d 546, 554-55 (Miss.1988).

In Barrett v. Miller, 599 So.2d 559, 566 (Miss.1992), we said:

A search warrant may only be issued when the police have demonstrated probable cause by introducing evidence of underlying facts and circumstances before the magistrate granting the warrant. Branch v. State, 347 So.2d 957, 958 (Miss.1977). Probable cause exists when facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it. Bevill v. State, 556 So.2d 699, 712 (Miss.1990). The affidavit is the means of presenting to the issuing magistrate a basis upon which he may determine whether in fact probable cause exists. Bevill, 556 So.2d at 712. In reviewing a magistrate's finding of probable cause, this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the magistrate's determination of probable cause. Smith v. State, 504 So.2d 1194, 1196 (Miss.1987).

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