Walker v. State

881 So. 2d 820, 2004 WL 1753406
Mississippi Supreme Court·Decided August 5, 2004·No. 2003-KA-00313-SCT·Published·Cited by 70 cases

Opinion

881 So.2d 820 (2004)

James Allen WALKER
v.
STATE of Mississippi.

No. 2003-KA-00313-SCT.

Supreme Court of Mississippi.

August 5, 2004.

*823 Bobby Taylor Vance, Batesville, attorney for appellant.

Office of the Attorney General, by John R. Henry, attorney for appellee.

Before WALLER, P.J., CARLSON and DICKINSON, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. James Allen Walker appeals from a jury verdict convicting him of possession of *824 two precursor chemicals (pseudoephedrine and lithium), knowing that the precursor chemicals would be used to unlawfully manufacture a controlled substance (methamphetamine).

¶ 2. On June 12, 2001, an employee of Sam's Club in Southaven called the Southaven Police Department, reporting that a white male had bought large amounts of ephedrine. As the police arrived, a GMC pickup truck occupied by two white males was leaving the parking lot. The driver of the truck matched the description (white male, mid-30s, wearing a pullover shirt with three large stripes) given by the employee. The police proceeded to follow the truck and then noticed that the truck had no brake lights. They stopped the truck and informed the occupants, James Allen Walker and William Stanley Miller, that they had received a report about someone buying large quantities of ephedrine. The occupants verbally consented to a search of the truck. The police recovered several boxes of ephedrine and several packs of lithium batteries. Walker and Miller were arrested for possession of two or more precursors.

¶ 3. After a trial, Walker was found guilty and was sentenced to 20 years in the custody of the Mississippi Department of Corrections, with 10 years suspended conditioned on future good behavior. After considering the issues Walker raises on appeal, we affirm the conviction and sentence.

DISCUSSION

I. THE CONSTITUTIONALITY OF MISS. CODE ANN. § 41-29-313(1)(a)(ii).

¶ 4. Walker argues that Miss.Code Ann. § 41-29-313(1)(a)(ii) (Supp.2003), the statute under which he was convicted and sentenced, is unconstitutionally vague. The statute provides in pertinent part as follows:

(1)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
* * *
(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.
* * *
(3) The terms "listed precursor drug or chemical" means a precursor drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter.... The following are "listed precursor drugs or chemicals": ... (d) Ephedrine; ... (f) Lithium;....

Walker contends that:

[t]he reasonable person who sees legal and legitimate items for sale with no notice that the brand or name under which they are sold may contain an ingredient [that] is a precursor and that the purchase of two or more legitimate, legal items may subject the purchaser to criminal prosecution does not have notice and such lack of notice denies the American consumer of common household products constitutional due process.

¶ 5. "Legislative acts are ... cloaked with a presumption of constitutionality, and unconstitutionality must appear beyond reasonable doubt." Mauldin v. Branch, 866 So.2d 429, 435 (Miss.2003) (citing In re Estate of Smiley, 530 So.2d *825 18, 21-22 (Miss.1988)). A statute's validity is presumed:

We adhere here to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.

Loden v. Miss. Pub. Serv. Comm'n, 279 So.2d 636, 640 (Miss.1973) (citations omitted). We must presume that the Legislature "intended to comply with the organic law, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit the upholding of the act." Mauldin, 866 So.2d at 435 (citing Berry v. Southern Pine Elec. Power Ass'n, 222 Miss. 260, 76 So.2d 212, 214 (1954)).

¶ 6. "[T]he wording of a statute does not necessarily offend the requirements of due process as long as the language provides a `sufficient warning as to the proscribed conduct when measured by common understanding and practices....'" Perkins v. State, 863 So.2d 47, 54 (Miss.2003) (citing Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981) (following Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957))).

¶ 7. We find that Walker has failed to overcome the presumption that the statute is constitutional. Walker's argument that an ordinary person buying a box of decongestant would not know that he or she was committing a crime fails because the statute requires mens rea, i.e., either having known or should have reasonably known that the decongestant would be used in the manufacture of a controlled substance. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) ("[A] scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed."). See also Tobacco Accessories & Novelty Craftsmen Merchants Ass'n v. Treen, 681 F.2d 378 (5th Cir.1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982).

¶ 8. This claim is without merit.

II. WHETHER THE POLICE OFFICER'S ACTS OF FOLLOWING WALKER'S TRUCK AND MAKING AN INVESTIGATORY STOP WERE BASED ON REASONABLE SUSPICION.

¶ 9. Walker claims that probable cause and/or reasonable suspicion did not exist because Officer Greg Smorowski, the first officer on the scene, began following Walker's truck before Officer Smorowski was able to determine that Walker's appearance matched that of the description given. Indeed, the record shows:

... Dispatch put out a call that there was a white male subject inside Sam's attempting to purchase a large amount of ephedrine. So I told dispatch that I was in the area, and I pulled up onto the parking lot trying to locate the subjects or the vehicle.
At that time, they didn't have a vehicle description. [A] blue pickup truck ... was leaving the pa

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Walker v. State, 881 So. 2d 820, 2004 WL 1753406 (Mich. 2004).

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