Pittman v. State

• Decision Date: 02 November 2004
• Docket Number: No. 2002-KA-01509-COA.,2002-KA-01509-COA.
• Citation: 904 So.2d 1185
• Parties: Wilbur PITTMAN a/k/a Wilbur Gene Pittman, Jr. and Sarah E. Pittman, Appellants v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

904 So.2d 1185

Wilbur PITTMAN a/k/a Wilbur Gene Pittman, Jr. and Sarah E. Pittman, Appellants v. STATE of Mississippi, Appellee.

No. 2002-KA-01509-COA.

Court of Appeals of Mississippi.

November 2, 2004.

Leslie D. Roussell, Laurel, attorney for appellants.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

BRIDGES, P.J., for the Court.

¶ 1. Wilbur Gene Pittman, Jr. and Sarah E. Pittman were found guilty in the Circuit Court of Greene County of possession of precursor chemicals with the intent to manufacture methamphetamines and were both sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $10,000 and lab fees of $500. The Pittmans then filed various posttrial motions, which were all denied, and subsequently appealed to this Court.

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING THE PITTMANS' MOTION TO SUPPRESS EVIDENCE?

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING OFFICERS WHO DID NOT PERSONALLY PARTICIPATE IN THE SEIZURE OF SPECIFIC EVIDENCE PRESENTED AT TRIAL TO TESTIFY ABOUT SUCH EVIDENCE?

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING THE PITTMANS' MOTION FOR A DIRECTED VERDICT AND SUBSEQUENT REQUEST FOR A JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, NEW TRIAL?

IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO PROPERLY INSTRUCT THE JURY AS TO THE ELEMENTS OF THE CRIME CHARGED IN THE INDICTMENT?

V. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING INTO EVIDENCE ADDITIONAL CONTAINERS ALLEGEDLY CONTAINING PRECURSOR CHEMICALS EVEN THOUGH SAID CONTAINERS WERE NOT SUBJECTED TO TESTING FOR VERIFICATION OF THE CONTENTS OF SAID CONTAINERS OR WHAT HAD BEEN STORED IN SAID CONTAINERS?

VI. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN VIOLATING THE PITTMANS' CONSTITUTIONAL RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT?

VII. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BASED ON THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS?

FACTS

¶ 2. On May 1, 2000, Joe Dewitt was arrested after purchasing a variety of items used in the manufacture of methamphetamines. Upon questioning, Dewitt explained that he purchased said items resulting in his arrest, just as he had on past occasions, at the direction of Wilbur and Sarah Pittman who were running a methamphetamine lab from their home in Greene County. Ed Lowe, Jr., an officer with the City of Leakesville Police Department and an agent assigned to the South Mississippi Narcotic Task Force, was the acting case agent, so he went to the Greene County Justice Court where he informed Judge Mike Mizell of Dewitt's arrest and statement implicating the Pittmans. The judge issued Lowe a search warrant, which ultimately resulted in the Pittmans' arrest and conviction.

I.

SEARCH AND SEIZURE

¶ 3. The Pittmans filed with the trial court a motion to suppress arguing that the warrant upon which the search and seizure of their property was premised was not valid for want of probable cause, thereby constituting a violation of their Fourth Amendment right to be free from unreasonable searches and seizures. The court denied their motion, and the Pittmans assign the denial as error in their first issue on appeal arguing that the document, said to contain underlying facts and circumstances, was not attached to the affidavit for the search warrant despite the fact that the affidavit stated that the said document was attached. The Pittmans additionally argue that the evidence should be suppressed because the judge was given no information for determining the reliability of Dewitt as an informant.

¶ 4. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established a "totality of the circumstances" standard for determining the existence of probable cause, which the Mississippi Supreme Court adopted in Lee v. State, 435 So.2d 674, 676 (Miss.1983). In application, the standard simply directs the magistrate to "make a practical, commonsense 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." Gates, 462 U.S. at 238, 103 S.Ct. 2317. Additionally, reviewing a magistrate's issuance of a search warrant on appeal does not require that we make a de novo determination of probable cause; therefore, our standard of review is to determine whether there was a substantial basis for the magistrate finding probable cause. Smith v. State, 504 So.2d 1194, 1196 (Miss.1987).

¶ 5. In contradiction to its plain language, the search warrant was not accompanied by an attached "Underlying Facts and Circumstances" sheet, which was to contain facts supporting the issuance of the search warrant. This fact alone, however, does not render the search warrant fatally flawed, for to be in accord with the aforementioned "totality of the circumstances" standard, our review must include the facts and circumstances provided in the affidavit as well as the sworn testimony of Officer Lowe regarding what information he supplied to Judge Mizell. Williams v. State, 583 So.2d 620, 622 (Miss.1991).

¶ 6. At the hearing on the Pittmans' motion to suppress, Officer Lowe testified as to the facts and circumstances that he provided to Judge Mizell prior to issuing the search warrant. Specifically, Officer Lowe's testimony described to Judge Mizell that: (a) the source of Officer Lowe's information was Dewitt, who was arrested for possessing precursor elements; (b) Dewitt, in giving a formal statement after being arrested, implicated himself in criminal activity; (c) Dewitt gave detailed information regarding the location of the residence where the drugs were being manufactured; (d) Dewitt stated that he bought and supplied the Pittmans with precursor elements; (e) the Pittmans were the actual producers of the drugs; and (f) Dewitt drew a map of the area where the drugs were located.

¶ 7. Officer Lowe's testimony was properly considered as supplementing the search warrant affidavit, and in light of all surrounding circumstances, this Court is convinced that the issuing judge was presented with a substantial basis for finding probable cause. The State was under no burden to provide the judge with evidence for bolstering the reliability of Dewitt's information, for as the supreme court has explained, "when information is furnished by an eyewitness rather than from an informant, there is no need to show the party supplying the information was a credible person." Walker v. State, 473 So.2d 435, 438 (Miss.1985) (citations omitted). This eyewitness exception is founded upon the rationale that the information provided by such statements is "based on their own observation and thus are not likely to reflect mere `idle rumor or irresponsible conjecture.'" Id. Moreover, the supreme court has stated that doubtful or marginal cases regarding a magistrate's finding of probable cause should be resolved in favor of a search warrant. Davis v. State, 660 So.2d 1228, 1240 (Miss.1995). Therefore, we hold that the trial court did not err in denying the Pittmans' motion to suppress and, accordingly, find this issue without merit.

II.

EVIDENTIARY TESTIMONY — CHAIN OF CUSTODY

¶ 8. Martin Overstreet, an officer with the City of Waynesboro Police Department and an agent assigned to the South Mississippi Narcotic Task Force, testified at trial that, when executing the search warrant on the Pittmans' property, he was designated as custodian of all evidence seized by the other officers and agents, thereby entrusting him with the responsibility of maintaining a detailed inventory to reflect what items were found, where the items were found, at what time the items were found, and who the officers were finding the items. Following this, the State asked Officer Overstreet, in referring to the list he compiled as custodian, to identify a variety of evidentiary items, to which the Pittmans responded by "object[ing] to Mr. Overstreet being able to testify as to items other than those he personally collected." The trial court overruled the objection, which the Pittmans maintain was error.

¶ 9. In their brief, the Pittmans frame their contention stating that Officer Overstreet's testimony was allowed in contradiction to the hearsay rule and that it also violated their Six Amendment right to confront witnesses brought against them. The substantive argument advanced in support of their assignment of error, however, never directly addresses either of these issues. Rather, the Pittmans argue that the testimony regarding items seized by other officers were inadmissible as a result of the State's failure to establish a proper chain of custody as to these items, thereby rendering the veracity of Officer Overstreet's testimony unreliable. The Pittmans claim that the State failed to establish a proper chain of custody by not producing to testify every officer that seized an item the State wanted to introduce into evidence. They further assert that the absence of the other officers' testimony prejudiced their defense by preventing them from inquiring as to potential instances of evidence tampering.

¶ 10. At trial, the Pittmans never claimed Officer Overstreet's testimony to be objectionable on grounds that it violated the hearsay rule and their right to confront witnesses. For that reason, they are procedurally barred from asserting it for the first time on appeal. This Court cannot hold the trial court in error on an issue with which it was not presented, so we will not address this claim. Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002). The Pittmans' chain of custody argument, however, was properly preserved for appellate...