Flake v. State


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Docket Number: 2005-KA-00577-COA

Court of Appeals: Opinion Link
Opinion Date: 02-06-2007
Opinion Author: BARNES, J.
Holding: Affirmed

Additional Case Information: Topic: Possession of methamphetamine - Probable cause - Search warrant - Motion to quash venire - Drug paraphernalia - M.R.E. 404(b)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ.
Non Participating Judge(s): CARLTON, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 03-15-2005
Appealed from: NESHOBA COUNTY CIRCUIT COURT
Judge: Vernon Cotten
Disposition: CONVICTED OF POSSESSION OF METHAMPHETAMINE; SENTENCED TO SERVE EIGHT YEARS IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS AND A FINE OF $5,000.
District Attorney: MARK SHELDON DUNCAN
Case Number: 04-CR-0079-NS-C

  Party Name: Attorney Name:  
Appellant: BYRON FLAKE




EDMUND J. PHILLIPS



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: W. DANIEL HINCHCLIFF  

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Topic: Possession of methamphetamine - Probable cause - Search warrant - Motion to quash venire - Drug paraphernalia - M.R.E. 404(b)

Summary of the Facts: Byron Flake was convicted of possession of methamphetamine and sentenced to eight years. He appeals.

Summary of Opinion Analysis: Issue 1: Probable cause Flake argues that since the affidavit for the search warrant did not specify the date when the C.I. actually bought the methamphetamine, the information upon which the warrant was based might not be current, and thus there was insufficient probable cause for the magistrate to issue the warrant. The magistrate’s duty is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit including the veracity and basis of knowledge of the informant, that there is a fair probability that contraband or evidence of a crime will be found in a particular place. The determination of factual currency in the affidavit for a search warrant would be but one factor in the totality of the circumstances for establishing the existence of probable cause. Here, the affidavit was detailed, the confidential informant was an eyewitness to illegal acts, and he had a reliable track record. The magistrate proceeded on more than mere suspicion in issuing the warrant. There is no merit to Flake’s argument that under the given facts the warrant was fatally defective because of inadequate probable cause. Issue 2: Motion to quash venire Flake argues that the court erred in failing to grant his motion to quash the venire because he claims the circuit court judge made pretrial comments to the jury pool about a newly established drug court for the circuit which prejudiced Flake. There was no evidence of prejudicial effect on the jury by the judge’s comments concerning the drug court. Flake’s trial was held the day after these supposedly prejudicial remarks were made. During the voir dire which followed, the defense did not discover any jury bias. Neither did the defense object once the jury was empaneled. The jury indicated it would fairly decide the case on the facts and law presented. Issue 3: Drug paraphernalia Flake argues that the court erred in denying his motion in limine to exclude the drug paraphernalia taken from his trailer as improperly admitted evidence of other crimes under M.R.E. 404(b). Admission of evidence of other crimes may be necessary to present a complete story and where the evidence might be relevant in another manner, i.e., inter-connected to the crime charged. The items at issue–glass water pipes and glass tubes–are known and used in the drug culture for ingesting drugs, particularly methamphetamine. Flake’s possession of the objects is relevant to show his participation in the drug culture. More importantly, the drug paraphernalia is highly relevant to show Flake’s intent, preparation, knowledge, and absence of mistake in possessing methamphetamine.


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