Turner v. State
| Docket Number: | 2005-KA-00255-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-02-2007 Opinion Author: IRVING, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Manufacturing methamphetamine & Possession of methamphetamine - Motion to suppress - Right of confrontation - Circumstantial evidence instruction - Ineffective assistance of counsel Judge(s) Concurring: LEE, P.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. KING, C.J. AND CARLTON, J. Non Participating Judge(s): King, C.J. and Carlton, J. Concur in Part, Dissent in Part 1: GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION Concur in Part, Dissent in Part Joined By 1: MYERS, P.J. AND ROBERTS, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-07-2004 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: CONVICTION OF COUNT 1, MANUFACTURE OF METHAMPHETAMINE AND COUNT 2 POSSESSION OF METHAMPHETAMINE. SENTENCED IN COUNT 1 TO SERVE A TERM OF LIFE IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS. THIS SENTENCE SHALL NOT BE SUBJECT TO REDUCTION, SUSPENSION, PAROLE, OR PROBATION. SENTENCED IN COUNT 2 TO SERVE A TERM OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. THIS SENTENCE SHALL NOT BE SUBJECT TO REDUCTION, SUSPENSION, PAROLE, OR PROBATION. SAID SENTENCE IS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT 1. District Attorney: FORREST ALLGOOD Case Number: 2002-0024-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | JOHNNY TURNER |
WILLIAM MICHAEL MALLETTE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Manufacturing methamphetamine & Possession of methamphetamine - Motion to suppress - Right of confrontation - Circumstantial evidence instruction - Ineffective assistance of counsel |
| Summary of the Facts: | Johnny Turner was convicted of the crimes of manufacturing methamphetamine and possession of .02 grams of methamphetamine. He was sentenced, as an habitual offender, to serve life on each count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to suppress Turner argues that the court abused its discretion in failing to entertain the ore tenus motion to suppress raised during trial, as well as a pretrial motion to suppress. In this case, the arraignment order provided that pretrial motions were to be filed by February 26, 2002. On July 24, Tuner moved to continue the trial because of the unavailability of the confidential informant as a witness. In a separate motion, Turner moved to suppress the evidence based on an illegally obtained warrant. The trial court granted the motion to continue. On September 12, Turner filed a second motion to suppress in which he specified his allegations that the search warrant was illegal. The motion hearing was eventually scheduled July 8, 2003, and trial was scheduled to begin August 5. Defense counsel failed to appear at hearing on the motion to suppress, and the trial court held the motion was overruled as abandoned. On April 30, 2004, defense counsel filed another motion to suppress. This motion was based on the identical grounds asserted in the previously denied motion. The April 30 motion was not brought to the court’s attention prior to trial that began on May 4. The State’s first witness admitted during cross-examination that the confidential informant was not a known and reliable informant, contrary to what he asserted in the affidavit supporting the search warrant. The trial court did not abuse its discretion in refusing to hear the motion filed April 30. It was based on the identical grounds contained in the motion which was scheduled to be heard on July 8, 2003, but which was not heard because counsel failed to appear. There is no doubt that the failure to pursue a motion to decision is deemed an abandonment of the motion under URCCC 2.04. With regard to the statement made at trial that the information in the affidavit was incorrect, when the issuing magistrate is given false facts which are indispensable to the probable cause determination, probable cause cannot exist, and the fruits of the search must be suppressed, even if the search warrant was properly issued based on the false facts which were presented to the magistrate. When the true facts are revealed, the prior probable cause determination must yield to the new reality occasioned by the new and correct set of facts. Therefore, the trial court abused it discretion in summarily dismissing Turner’s trial motion. On remand, the trial court shall determine whether the information obtained from the informant should be stricken from the affidavit, and the remaining information, if any, used to determine if probable cause existed. If there was no probable cause to support the warrant, the evidence was illegally searched and seized, and Turner is entitled to have all the evidence suppressed. Issue 2: Right of confrontation Turner argues that he was denied his right to confront and cross-examine his accuser, because she did not testify at trial. Because the accuser’s statements were never admitted into evidence, there is no confrontation problem. Issue 3: Circumstantial evidence instruction Turner argues that he was entitled to a circumstantial evidence instruction, because there was no direct evidence that he either manufactured or possessed methamphetamine. While a circumstantial evidence instruction may be appropriate, it remains incumbent upon the defendant to request such an instruction. Turner failed to request such an instruction. Issue 4: Ineffective assistance of counsel Turner argues that he received ineffective assistance of counsel. This issue is moot. In addition, it has no merit. |
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