Ward v. State

958 So. 2d 1233, 2006 WL 3490822
Court of Appeals of Mississippi·Decided December 5, 2006·No. 2005-KA-00656-COA·Published·Cited by 4 cases

Opinion

958 So.2d 1233 (2006)

Ronnie WARD, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-00656-COA.

Court of Appeals of Mississippi.

December 5, 2006.
Rehearing Denied April 10, 2007.

*1234 Alsee McDaniel, Indianola, attorney for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before KING, C.J., SOUTHWICK and IRVING, JJ.

IRVING, J., for the Court.

¶ 1. A Sunflower County jury convicted Ronnie Ward of possession of marihuana in an amount greater than one ounce but less than a kilogram, while possessing a firearm. The Sunflower County Circuit Court sentenced him to a term of six years in the custody of the Mississippi Department of Corrections and ordered him to pay a fine of $6,000.

¶ 2. Ward appeals and challenges the legality and execution of the search warrant and the refusal of the trial court to admit certain evidence. Ward also asserts that the trial court erred in giving certain jury instructions.

¶ 3. We find no error; therefore, we affirm Ward's conviction and sentence.

FACTS

¶ 4. On January 5, 2004, law enforcement officials, acting on street information and using a confidential informant, arranged a purchase of marihuana from Ward. Sometime during the early part of the following day, the officials presented information regarding the confidential buy, along with other information, to a justice court judge and obtained a search warrant for Ward's residence. After getting the warrant, agents of the Central Delta Drug Task Force (CDDTF) and other law enforcement officials executed the warrant around 8:45 p.m. while Ward was at home preparing to have dinner with his wife and child. The search uncovered marihuana, scales, baggies, scissors, and a plate with marihuana residue. The officers also found marihuana cigarettes ("roaches") in a jacket owned by Ward. Additionally, the search revealed numerous guns, two of which were found in the same room as the marihuana. The scales, baggies, scissors, and plate were never sent to the Mississippi Crime Lab for testing; however, the *1235 residue collected from the plate and the marihuana were sent to the lab one month after the search. Ward was arrested and convicted of possession of marihuana in an amount greater than one ounce but less than a kilogram, while possessing a firearm.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Issuance and Execution of Search Warrant

¶ 5. In this issue, Ward argues that the affidavit standing alone does not support a finding that probable cause existed for the issuance of a search warrant for his home. He relies on State v. Woods, 866 So.2d 422, 424(¶ 3) (Miss.2003), in support of his argument. He further argues that the State's failure to offer any corroborating evidence to show that its confidential informant is reliable and truthful violated his constitutional rights under Article 3, Section 23 of the Mississippi Constitution.[1] We look to the relevant case law.

¶ 6. In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established the totality of the circumstances approach as the standard for determining whether probable cause exists for the issuance of a search warrant based on information provided by an informant:

For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. . . . The task of the issuing magistrate is simply to make a practical, common-sense 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. . . . We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.

¶ 7. In Lee v. State, 435 So.2d 674, 676 (Miss.1983), the Mississippi Supreme Court, without explicitly adopting the totality of the circumstances test promulgated in Gates, applied it and found that probable cause existed for the issuance of a search warrant. The court found that the judge who issued the warrant was justified in doing so based on the fact that the confidential informant had given reliable information in the past, the informant's information was based on personal knowledge, and the law enforcement officers corroborated the information provided by the informant. Id. at 676-77.

¶ 8. Two years later, in Jones v. State, 481 So.2d 798, 800 (Miss.1985), the Mississippi Supreme Court explicitly stated that, in Lee, it adopted the "totality of the circumstances" test enunciated in Gates. The court also held that, based on Gates and Lee, it was no longer necessary for the police officers to determine through *1236 independent corroboration the accuracy of the informant's information. Id. Therefore, it is well-settled law in this state that judges apply a "totality of the circumstances" test in making probable cause determinations for the issuance of search warrants. "[W]e look `both to the facts and circumstances set forth in the affidavit for the search warrant as well [as] the sworn oral testimony presented to the issuing magistrate.'" Woods, 866 So.2d at 426(¶ 12) (quoting Petti v. State, 666 So.2d 754, 758 (Miss.1995)).

¶ 9. We now turn to the facts undergirding the issuance of the search warrant in the case before us. The record is devoid of a statement of the underlying facts and circumstances.[2] Appellate counsel failed to ensure that the record was supplemented with the statement, even after we allowed a tardy supplementation of the record. Therefore, we are unable to review Ward's argument regarding the adequacy of the affidavit supporting the application for search warrant. It is the responsibility of the appellant to furnish the court with a record which is adequate to review the issues presented. Williams v. State, 522 So.2d 201, 209 (Miss.1988).

¶ 10. The procedural bar notwithstanding and assuming we were to accept the statement of underlying facts and circumstances contained in Ward's reply brief, we would find no merit to this issue. The relevant portion of the statement in Ward's reply brief is as follows:

Affiant, being a duly sworn officer of the State of Mississippi, states the following: On January 5, 2004, Affiant was contacted by a confidential reliable source from the Indianola area located in Sunflower County, Mississippi. Said confidential source provided Affiant with information that a black male subject known to said source as Ronnie Ward was dealing a quantity of marijuana from his residence. This residence being located at 413 Lincoln Street, In

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Ward v. State, 958 So. 2d 1233, 2006 WL 3490822 (Mich. Ct. App. 2006).

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