Tucker v. State, 52827

• Decision Date: 16 September 1981
• Docket Number: No. 52827,52827
• Citation: 403 So.2d 1274
• Parties: Tommy B. TUCKER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1274

403 So.2d 1274

Tommy B. TUCKER v. STATE of Mississippi.

No. 52827.

Supreme Court of Mississippi.

Sept. 16, 1981.

Terry Burnet, St. Louis, Mo., for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

SUGG, Justice, for the Court:

Appellant was convicted in the Circuit Court of Oktibbeha County for possession of more than one ounce but less than one kilogram of marihuana, was sentenced to three years imprisonment, and fined $1,000.

In his first assignment of error, appellant contends he was denied his right to a fair trial because the prosecution injected evidence of another crime for which he was not on trial. In presenting its case in chief, the following evidence was elicited from the witness Charlie McVey:

Q. Charlie, I'd like to direct your attention back specifically to about six o'clock that evening, if you'd tell the court and jury what happened at that time?

A. Yes, sir, I received information from one of my informants who's credible and reliable and has given me information in the past that has led to convictions that at approximately four p. m. that same afternoon a subject by the name of Tucker and Mitchell Prater were in the pool hall with a brown paper sack containing a quantity of marijuana, and that they were riding in a beige or cream colored Oldsmobile 98 with Missouri tag on it. He advised me that they were dealing out of that vehicle and that they were also staying at the Best Western Motel, and

Q. When you say "dealing" what do you mean Charlie?

A. Selling.

MR. MOORE:

Your honor, I object to that, and move for a mistrial; the defendant's not charged with selling marijuana.

THE COURT:

Overruled; the motion for a mistrial is overruled.

Appellant was on trial for possession of marihuana and was not charged with selling marihuana. The general rule is that testimony in a criminal trial should be confined to the charge for which an accused is on trial and the prosecution should not be allowed to aid the proof against the accused by showing he committed other offenses. In Sumrall v. State, 257 So.2d 853 (Miss.1972) this Court stated:

It is contended by the appellant that the admission of this evidence was highly prejudicial and served no other useful purpose than to prejudice the jury against the defendant. It is a well-settled general rule that the issue on a criminal trial should be single and that the testimony should be confined to that issue and on the trial for one offense the prosecution should not be allowed to aid the proof against the defendant by showing he committed other offenses, even though of a like nature. Cummings v. State, 219 So.2d 673 (Miss.1969); Ladnier v. State, 254 Miss. 469, 182 So.2d 389 (1966); Brown v. State, 224 Miss. 498, 80 So.2d 761 (1955); Pegram v. State, 223 Miss. 294, 78 So.2d 153 (1955); Floyd v. State, 166 Miss. 15, 148 So. 226 (1933).

There are well recognized exceptions to the foregoing rule which have been given due consideration, but it is our opinion that the evidence relative to the possession of marijuana by the defendant on the day after the alleged sale does not come within any of the exceptions. The alleged sale had been completed and the only connection the appellant was shown to have had with the sale was that he aided, abetted, and assisted in the sale. Under these circumstances, the fact that he had marijuana in his possession at another time served no purpose other than to prejudice the jury. The introduction of this evidence requires a reversal of this case. (257 So.2d at 854)

In response to the argument of appellant, the state relies on Gray v. State, 351 So.2d 1342 (Miss.1977) and Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965). In Gray we held:

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). (351 So.2d at 1345)

Proof that appellant was selling marihuana from his automobile before marihuana was found in his motel room does not fall within any of the recognized exceptions to the general rule and requires a reversal of this case.

Appellant also assigns several other errors and because we are remanding this case for a new trial, it is necessary to rule on the admissibility of the evidence obtained as the result of the search warrant in this case.

Acting under the authority of a search warrant issued by Justice Court Judge James A. Mills, county and city officers seized a quantity of marihuana in Room 162 of the Best Western Motel located in Starkville. Appellant's motion to suppress was overruled. ¹ On appeal, appellant contends the evidence should have been suppressed on two grounds. First, appellant maintains the underlying facts stated in the affidavit for the search warrant are insufficient to cause a reasonably prudent man to believe that drugs were located on the premises to be searched; second, the evidence presented to the justice court judge for the issuance of the search warrant was seized unlawfully in violation of defendant's Fourth Amendment rights.

Charlie McVey, a police officer for the city of Starkville, made the affidavit for the search warrant and the underlying facts in the affidavit are as follows:

On Feb. 9, 1980 Charley McVey received information from a reliable informer who has given Charley information in the past that has lead to convictions. His information was that a black male named Tucker who was driving a Olds car with Missouri tags that this Tucker sub. was dealing drugs out of this car with the help of a Starkville man by the name of Mitchell Prater.

This car was stopped on Hwy 82 east 2/9/80 several hand rolled cig. were found in the car and a 38 cal. derrenger was found outside the right front door and the window was down. Three subjects were placed under arrest. The Passenger had two small bags of green veg. matter and the driver has several small foil pouches of white sub. that a field test came out positive for cocaine.

The two sub. that had contraband on them are staying in room # 162 Best Western Motel Hwy 82 Starkville, Miss.

The informer also told Charley that Tucker had several pounds of marijuana.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1965), the United States Supreme Court held that some of the underlying facts and circumstances from which an officer concludes that probable cause exists for issuance of a search warrant must be stated in the affidavit, so that these inferences may be drawn by "a neutral and detached magistrate."

In a later case, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) the Court recognized that affidavits for search warrants are normally drafted by officers involved in a criminal investigation and statement of underlying facts contained in search warrants should be viewed by magistrates and courts in a common sense and realistic fashion. The Court stated:

These decisions reflect the recognition that the 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 involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. They are normally drafted by nonlawyers 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. (380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 689)

We are of the opinion that the statement of underlying facts in the...