Wilborn v. State, 52301

• Citation: 394 So.2d 1355
• Decision Date: 04 March 1981
• Docket Number: No. 52301,52301
• Parties: Hal WILBORN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1355

394 So.2d 1355

Hal WILBORN v. STATE of Mississippi.

No. 52301.

Supreme Court of Mississippi.

March 4, 1981.

Rehearing Denied March 18, 1981.

G. Jyles Eaves, Eaves & Eaves, Henry Lee Rodgers, Louisville, for appellant.

Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

WALKER, Justice, for the Court:

This is an appeal from the Circuit Court of Noxubee County, Mississippi, wherein the appellant, Hal Wilborn, was convicted of unlawfully possessing marijuana in an amount greater than an ounce, but less than one kilogram, with the intent to deliver same; and, under Count 2 of the same indictment was convicted of unlawfully possessing phencyclidine. On Count 1 he was sentenced to five years in the custody of the Department of Corrections and fined $3,000. On Count 2 he was sentenced to three years in the custody of the Department of Corrections and fined $2,000. Being aggrieved, Wilborn perfects this appeal. We affirm.

The appellant did not object in the lower court to being tried on the two separate counts and that issue is not on appeal here.

The appellant briefs four assignments of error. However, only two warrant discussion.

I.

The appellant first contends that "The Trial Court erred in failing to sustain the Defendant's motion requesting the court to quash a search warrant and the evidence of the fruits of an illegal search based upon an affidavit fatally defective."

On December 4, 1978, Cecil Russell, Sheriff, James L. Barnett and Willam V. Holley, Deputy Sheriffs, went to Justice Court Judge J. S. Dinsmore and presented him with an instrument styled "affidavit for search warrant," sworn to and subscribed by them before the said Judge Dinsmore and properly attested by the Judge. Judge Dinsmore also heard the officers testify under oath. The appellant does not challenge that the additional facts testified to would have enabled the judge to fairly ascertain from the affidavit and testimony that probable cause existed for the issuance of the warrant. However, the appellant does challenge the authority of a judicial officer to supplement a written affidavit for a search warrant, which is insufficient in itself to show probable cause for the issuance of a search warrant, with oral testimony under oath from the officers who executed the search warrant.

The question presented is whether an affidavit for a search warrant, which does not state sufficient facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of a search warrant, may be supplemented by sworn testimony of the officers concerning facts and circumstances which are sufficient to show that probable cause exists for the issuance of a search warrant?

This Court spoke to the question of supplementing an otherwise defective affidavit for a search warrant with oral testimony, made under oath to a judicial officer, in Prueitt v. State, 261 So.2d 119 (Miss.1972). In Prueitt, this Court stated that "Oral testimony is admissible before the officer who is requested to issue a search warrant." Id. at 123. In commenting on this particular oral testimony, the Court stated: "We think the affidavit is sufficient to show probable cause; but if it is not, certainly it, with the evidence before the judicial officer issuing the warrant, was sufficient." Id. at 124.

In Walker v. State, 192 So.2d 270 (Miss.1966), the Court held a defective affidavit was not cured by the following language in the warrant:

And the undersigned having examined and considered said affidavit and also after having heard and considered evidence in support thereof, doth find that probable cause for the issuance of a search warrant in the premises doth exist. (Emphasis added). (Id. at 273).

It is clear from the holdings in Prueitt and Walker, supra, that if there is a challenge to the sufficiency of the underlying facts and circumstances in the affidavit for issuance of a search warrant, a mere statement in the affidavit that the judicial officer also heard and considered evidence in support thereof and that probable cause for the issuance of a search warrant exists is not sufficient. However, it is also clear that when the officer who testified, or the judicial officer who heard the testimony, is able to recall that testimony when the affidavit is challenged, we will consider this sworn unrecorded oral testimony, along with the affidavit, in our determination as to whether probable cause existed for issuance of the search warrant.

II.

The appellant next assigns as error that "The trial court erred in permitting the State to introduce evidence of a crime other than that for which the defendant was charged."

The relevant facts to this assignment of error are as follows: Before the search warrant was issued, the officers had concealed themselves near Wilborn's property and had observed known drug users coming and going from his house. While approaching Wilborn's house to serve the search warrant, the officers observed two men getting into an automobile and starting to leave. They stopped the car and arrested the occupants for possession of marijuana. The officers then went to Wilborn's house, served the search warrant, searched the house, found marijuana and arrested Wilborn. One of those arrested in the automobile was Robert Maxwell, who testified at the trial of Wilborn that he had been in Wilborn's house on the night in question, that he had seen marijuana there, and had purchased marijuana from Wilborn at that time.

Wilborn contends that Maxwell's testimony that he purchased marijuana from Wilborn that night was evidence of another crime and, therefore, inadmissible and reversible error. Ordinarily, in a criminal prosecution, evidence of offenses other than charged in the indictment is not admissible. However, this rule does not apply when the evidence of the other offense is so closely connected with the offense charged as to show the defendant's intent. Thompson v. State, 309 So.2d 533 (Miss.1975), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 150 (1976); Younger v. State, 301 So.2d 300 (Miss.1975).

Here, Maxwell's testimony with reference to purchasing marijuana from Wilborn a few minutes prior to the officers going into Wilborn's house and his having seen marijuana there and having marijuana handed to him was so closely related in point of time as to have a material bearing on Wilborn's intentions with reference to the remaining marijuana in his possession, which is the subject of the conviction sub judice.

We are of the opinion that the testimony of Maxwell with reference to his purchase of marijuana from Wilborn was properly admitted for the purpose of showing that Wilborn had the remaining marijuana in his possession with intent to deliver it as charged in the indictment.

Finding no reversible error, the judgment and sentence of the lower court are therefore affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BOWLING and LEE, JJ., concur.

PATTERSON, C. J., and HAWKINS, J., dissent.

BROOM, J., joins Part I of this opinion and joins the dissent as to the testimony of Robert Maxwell.

PATTERSON, Chief Justice, dissenting:

I respectfully dissent from the majority opinion.

My interpretation of the question in this case is different from that of the majority wherein the issue is stated:

The question presented is whether an affidavit for a search warrant, which does not state sufficient facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of a search warrant, may be supplemented by sworn testimony of the officers concerning facts and circumstances which are sufficient to show that probable cause exists for the issuance of a search warrant? (emphasis added).

The affidavit in this case states none of the underlying facts and circumstances which establish probable cause. Therefore, in my opinion, it does not fall into the cases in Mississippi which state an affidavit for a search warrant may be supplemented by sworn oral testimony. In this case there was nothing in the affidavit showing probable cause. All it contained was a description of the place to be searched, a statement that the location was occupied and controlled by Hal Wilborn, a description of the thing to be seized, and a statement that possession of the thing to be seized was in violation of Section 41-29-139 of the Mississippi Code Annotated (1972). Part 5 of the affidavit stated in part:

The facts tending to establish the foregoing grounds for issuance of a Search Warrant are shown on a sheet headed "Underlying Facts and Circumstances" which is attached hereto, made a part hereof and adopted herein by reference.

However, no underlying facts and circumstances sheet was attached. Therefore, none of the facts establishing probable cause was included in the written affidavit. Prior decisions of this Court have only allowed sworn oral testimony to supplement an affidavit where some of the underlying facts and circumstances are included in the affidavit. In O'Bean v. State, 184 So.2d 635, 638 (Miss.1966) we stated The standard required by Aquilar, which we are obliged to follow, is that an affidavit seeking a search warrant, though it may be based on hearsay information and need not reflect the direct personal observations of the affiant, must contain some of the underlying facts and circumstances from which a detached and neutral judge can fairly ascertain that probable cause does exist for the issuance of the warrant. (emphasis added).

Moreover, in Prueitt v. State, 261 So.2d 119, 124 (Miss.1972), relied on by the majority for their decision that the oral testimony alone was sufficient to establish probable cause, the Court pointed out that the affidavit alone was sufficient to show probable cause; but if it was not, "certainly it, with the evidence before the judicial officer issuing the warrant, was...