Berry v. State
| Docket Number: | 2006-KA-00216-COA Linked Case(s): 2006-KA-00216-COA ; 2006-CT-00216-SCT ; 2006-CT-00216-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-19-2007 Opinion Author: IRVING, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Conspiracy to possess precursor chemicals & Possession of fifteen or more grams of pseudoephedrine or ephedrine - Defective indictment - Section Judge(s) Concurring: LEE, P.J., CHANDLER, BARNES AND ISHEE, JJ. Non Participating Judge(s): KING, C.J. Dissenting Author : MYERS, P.J. Dissent Joined By : GRIFFIS AND CARLTON, JJ., ROBERTS, J.joins in part. Dissenting Author : Roberts, J. Dissent Joined By : MYERS, P.J., GRIFFIS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-30-2006 Appealed from: DeSoto County Circuit Court Judge: Robert P. Chamberlin Disposition: CONVICTED OF COUNT I, CONSPIRACY TO ILLEGALLY POSSESS PRECURSOR CHEMICALS AND CONVICTED OF COUNT II, POSSESSION OF FIFTEEN GRAMS OR MORE OF PSEUDOEPHEDRINE OR EPHEDRINE, KNOWING OR UNDER CIRCUMSTANCES WHERE ONE REASONABLY SHOULD KNOW THAT THE CHEMICALS WOULD BE USED TO MANUFACTURE A CONTROLLED SUBSTANCE. SENTENCED TO FIVE YEARS, $1,000 FINE, AND $100 RESTITUTION ON COUNT II; AND TWO YEARS, WITH THREE YEARS OF POST-RELEASE SUPERVISION ON COUNT I, WITH THE SENTENCE FOR COUNT I RUNNING CONSECUTIVELY TO THE SENTENCE FOR COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: John W. Champion Case Number: CR-2005-686-CD |
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| Note: | This opinion was later reversed by the Supreme Court on 12/11/2008. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO52127.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | JOHN ALLEN BERRY |
DAVID CLAY VANDERBURG |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS |
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| Topic: | Conspiracy to possess precursor chemicals & Possession of fifteen or more grams of pseudoephedrine or ephedrine - Defective indictment - Section |
| Summary of the Facts: | John Berry was convicted of Count I, conspiracy to possess precursor chemicals and Count II, possession of fifteen or more grams of pseudoephedrine or ephedrine knowing or under circumstances where one reasonably should know that the chemicals would be used to manufacture a controlled substance. He appeals. |
| Summary of Opinion Analysis: | Berry argues that Count I of the indictment is defective, in that possession of precursor chemicals alone is not a crime. Section 41-29-313(1)(a)(i) prohibits possession of two or more precursor chemicals with the intent to unlawfully manufacture a controlled substance. A conspiracy occurs when two or more persons conspire to commit a crime. Thus, there can be no conspiracy under section 97-1-1(a) where there is no crime as the object of the conspiracy. Additionally, Count I does not charge a crime because it does not contain all of the elements that would make possession of precursor chemicals a crime, that is, it fails to include the element of “intent to unlawfully manufacture a controlled substance.” Count I, as written, also fails to put Berry on notice as to which precursor chemicals he is charged with possessing. Count II alleges the chemicals in the disjunctive, thereby preventing a reasonable interpretation that Berry conspired to possess both. In addition, the omission of the names of the two precursor chemicals in Count I of Berry’s indictment is fatal, because without them, Berry was not placed on notice of the crime of which he was said to have conspired to commit. By reading the indictment as a whole, he may have been placed on notice as to one of the drugs, either pseudoephedrine or ephedrine, but it takes possession of both of these precursors to constitute a crime unless the possession is in the amount of two hundred fifty dosage units or fifteen grams in weight and the possessor knows, or under circumstances reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance. Therefore, Berry’s conviction in Count I is reversed and rendered. |
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