Berry v. State
| Docket Number: | 2006-CT-00216-SCT Linked Case(s): 2006-KA-00216-COA ; 2006-KA-00216-COA ; 2006-CT-00216-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-11-2008 Opinion Author: Easley, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF DESOTO COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF CONSPIRACY TO POSSESS PRECURSORS AND SENTENCE OF TWO (2) YEARS WITH THREE (3) YEARS POST-RELEASE SUPERVISION, AFFIRMED. |
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| Additional Case Information: |
Topic: Conspiracy to possess precursors - Defective indictment - URCCC 7.06 Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Lamar, J. Dissenting Author : Diaz, P.J., with separate written opinion. Dissent Joined By : Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 01-30-2006 Appealed from: DeSoto County Circuit Court Judge: Robert P. Chamberlin Disposition: Conviction of Conspiracy to Possess Precursors and Sentence of Two (2) Years with Three (3) Years of Post-release Supervision. District Attorney: John W. Champion Case Number: CR-2005-686-CD |
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| Note: | This opinion reverses the previous judgment by the Cour of Appeals. See the COA opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO41009.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 precursors - Defective indictment - URCCC 7.06 |
| Summary of the Facts: | John Berry was convicted of Count I, conspiracy to possess precursors, and 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. Berry appealed his conviction as to Count I only, and the Court of Appeals reversed and rendered. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Berry argued that his indictment was defective because Count I did not set forth a crime and that possession of precursors alone was not a crime. The Court of Appeals agreed and held that the indictment was defective, as the possession of a precursor chemical in and of itself is not a crime. The Court of Appeals also held that Count I of the indictment failed to notify Berry which precursors were at issue, to charge a necessary element of the crime, and to identify which subsection of Mississippi Code Annotated was at issue for the underlying crime, possession of precursors. The State argues that the Court of Appeals misunderstood how the crime of conspiracy is charged and proved and that the Court of Appeals misapprehended some facts. The indictment met the seven requirements of URCCC 7.06. Conspiracy is a complete offense in itself, distinct from the commission of the crime contemplated by the conspiracy and does not become merged with that crime. The State had to prove that Berry made an agreement with one or more persons to commit a crime. The Court of Appeals’ opinion found that the indictment was insufficient, in part, due to a failure to include the language “intent to unlawfully manufacture a controlled substance.” This omission does not render an indictment insufficient. The elements of the crime of conspiracy are separate and distinct from the elements of the underlying crime in Count II, which is the basis of the conspiracy charge. In this case, the crime of conspiracy and the crime of possession of precursors are inherently different, and the crime of conspiracy does not merge with the crime of possession of precursors. While a defendant must be informed of the underlying crime to which he conspired, the prosecution does not have to prove every element of the underlying crime in order to prevail on a conspiracy charge. Therefore, the indictment did not have to include the language that Berry had possessed precursors with the intent to manufacture a controlled substance or with knowledge, or under circumstances where he reasonably should have known, that the precursor chemicals would be used unlawfully to manufacture a controlled substance. The indictment charged Berry with “unlawfully and feloniously” conspiring to commit the crime of possession of precursors. Therefore, the indictment notified Berry that he was charged with felonious possession of precursors, not mere possession of precursors. This language also informed Berry of the specific criminal intent of the crime. Pursuant to Mississippi case law, the crime of conspiracy is complete when two or more people enter into a common plan and knowingly intend to further its common purpose. The crime of conspiracy is complete when there is evidence of an agreement. Consequently, the elements of conspiracy and the elements of the underlying crime, possession of precursors, are not the same. The State did not have to prove that Berry actually possessed any precursors, let alone a certain amount of precursors, in order to prove the crime of conspiracy. The State only had to prove that two or more persons agreed to commit a crime. Count II of the indictment plainly stated that Berry was charged with possession of precursors pursuant to section 41-29-313. Count II of the indictment also set forth the names of the precursors. When Count I and Count II of the indictment are read as a whole, Berry had notice of the statute at issue. |
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