Terry v. State
| Docket Number: | 2004-KA-02230-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-28-2006 Opinion Author: Griffis, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Possession of chemicals with the intent to manufacture a controlled substance - Motion to suppress - Chain of custody - Sufficiency of evidence - Circumstantial evidence instruction Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Barnes, Ishee and Roberts, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 10-11-2004 Appealed from: Washington County Circuit Court Judge: W. Ashley Hines Disposition: CONVICTION OF POSSESSION OF CHEMICALS WITH THE INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE AND SENTENCED TO SERVE A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: JOYCE IVY CHILES Case Number: 2004-039 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Dale Terry |
CAROL L. WHITE-RICHARD |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
|
|
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. |
|
| Topic: | Possession of chemicals with the intent to manufacture a controlled substance - Motion to suppress - Chain of custody - Sufficiency of evidence - Circumstantial evidence instruction |
| Summary of the Facts: | Dale Terry was convicted of possession of chemicals with the intent to manufacture a controlled substance. He was sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to suppress Terry argues that the court erred in denying his motion to suppress the samples taken from a drinking cup found in his toolbox because of a break in the chain of custody. The burden is on the defendant to show whether there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence. The only hint of an indication that Terry can point to of tampering with or substitution of the evidence is the discrepancy between the chain of custody form and the testimony of the agents. The chain of custody form did not list the name of the agent who delivered the samples from the drinking cup to the Mississippi Crime Lab. However, testimony from the agents was sufficient to show, in place of the form, a complete chain of custody. Issue 2: Sufficiency of evidence Terry argues that the State failed to provide sufficient evidence to prove the element of possession. For constructive possession, the drug involved must be subject to the defendant’s dominion or control. Here, the precursors were found combined in a drinking cup which was located in a locked toolbox outside. The combination of these precursors produced a very strong odor that the officers, while walking up to the house, were able to smell as they passed by. Terry actually owned the property where the precursors were found. The toolbox was locked, showing dominion and control of the property inside the toolbox. Since the evidence presented indicates that reasonable minds could differ as to whether Terry was in constructive possession of the precursors, it was sufficient to establish Terry in constructive possession of the precursors. Issue 3: Circumstantial evidence instruction Terry argues that the court erred in refusing to issue a circumstantial evidence jury instruction. A circumstantial evidence instruction must be given unless there is some type of direct evidence such as eyewitness testimony, dying declaration, or confession or admission of the accused. Where the evidence is mixed and consists of both direct and circumstantial evidence, a circumstantial evidence instruction is not required. While there is no confession, dying declaration, or admission in this case, the trial court was not without eyewitness testimony. The State presented the eyewitness testimony from three officers. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
