McClellan v. State
| Docket Number: | 2009-KA-00327-SCT Linked Case(s): 2009-KA-00327-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-25-2010 Opinion Author: Kitchens, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of methamphetamine precursors & Possession of 250 dosage units of pseudoephedrine - Motion to suppress - Weight of evidence - Prior conviction - M.R.E. 609(a)(1)(B) - Merger - Section 41-29-313(1)(b) Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Randolph, Lamar, Chandler and Pierce, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL- FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-26-2009 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: Count l: Conviction of possession of precursors and sentence as a habitual offender of thirty (30) years in the custody of the Mississippi Department of Corrections and pay a fine of $1,000,000. Count ll: Conviction of possession of 250 dosage units of pseudoephedrine and sentence as a habitual offender of five (5) years in the custody of the Mississippi Department of Corrections and pay a fine of $5,000. Sentence in Count ll to run concurrently with the sentence imposed in Count l. District Attorney: Forrest Allgood Case Number: 2008-0070-CR1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Ivan Russell McClellan |
OFFICE OF INDIGENT APPEALS: GEORGE T. HOLMES, LESLIE S. LEE, GARY GOODWIN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND | ||
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: | Possession of methamphetamine precursors & Possession of 250 dosage units of pseudoephedrine - Motion to suppress - Weight of evidence - Prior conviction - M.R.E. 609(a)(1)(B) - Merger - Section 41-29-313(1)(b) |
| Summary of the Facts: | Ivan McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine. He was sentenced as a habitual offender to thirty years for the precursor conviction and five years for the pseudoephedrine conviction. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to suppress McClellan argues that the officers lacked reasonable suspicion to make an investigatory stop because the initial description of the suspect vehicle by police dispatch was vague. A police officer may conduct an investigatory stop if he or she has reasonable suspicion, grounded in specific and articulable facts, that a person the officer encounters was involved in or is wanted in connection with a completed felony or some objective manifestation that the person stopped is, or is about to be engaged in criminal activity. Reasonable suspicion may be based on the officer’s personal observations or an informant’s tip, as long as the tip bears an indicium of reliability. While in this case the initial description may have been somewhat vague, police were able to accumulate many more details about the individuals, their pseudoephedrine purchases, and the vehicle in which they were traveling before officers made the investigatory stop. Thus, the trial court did not err in denying McClellan’s motion to suppress the fruits of the vehicle search. McClellan also argues that his confession should have been suppressed, because it was the product of an illegal arrest. To effect arrest for a felony, either with or without a warrant, a police officer must have reasonable cause to believe a felony has been committed, and reasonable cause to believe that the person proposed to be arrested is the one who committed it. The officer had probable cause to stop McClellan and was given consent to perform a search of his car. Upon finding the pseudoephedrine pills, starter fluid (ether), granular drain opener (sodium hydroxide), lithium batteries, and isopropyl alcohol, the officer had reasonable cause to believe that McClellan had committed the felony of possessing precursors for methamphetamine. Only after being arrested and informed of his Miranda rights did McClellan make his incriminating statement. Thus, the trial judge did not err in refusing to suppress his confession. Issue 2: Weight of evidence McClellan argues that the State did not prove that he had actual or constructive possession of the pseudoephedrine or the methamphetamine precursors. Although all of the materials were found in McClellan’s car, he argues that the only substance within his control was the 212 dosage units of pseudoephedrine. To support a conviction for possession of a controlled substance, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It is quite possible to have joint constructive possession. McClellan was the operator of the vehicle in which the contraband was found, and there was nothing to rebut the presumption that he was in constructive possession of the contents of the vehicle. In his statement, he admitted to police that another person was helping him acquire the ingredients for methamphetamine and that the two of them intended to manufacture and use the finished product. Accordingly, the verdict was not against the overwhelming weight of the evidence. Issue 3: Prior conviction McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence. At the close of the State’s presentation of the evidence, the trial judge ruled that the State could use McClellan’s prior burglary conviction as impeachment evidence, pursuant to M.R.E. 609(a)(1)(B), should he choose to testify on his own behalf. Following the trial court’s ruling, McClellan chose not to testify. McClellan argues that the trial court’s ruling was an abuse of discretion that resulted in his inability to put on a defense. Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a “chilling effect” on his right to testify if he fails to proffer his proposed testimony. Issue 4: Merger McClellan argues that the charge of the possession of 250 dosage units of pseudoephedrine should merge into the offense of possession of precursors, and, therefore, he should not have been charged and convicted of both offenses, as they arose from the same set of facts. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. In addition, a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. McClellan was indicted and tried for two separate acts. While it is true that pseudoephedrine is listed as a precursor under section 41-29-313(1)(b), the precursors which McClellan was convicted of unlawfully possessing did not include pseudoephedrine. Because the pseudoephedrine was not listed as one of the precursors, McClellan was properly charged with, tried for, convicted of, and sentenced for two distinct crimes. |
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