McKlemurry v. State
| Docket Number: | 2004-KA-02362-COA Linked Case(s): 2004-CT-02362-SCT ; 2004-KA-02362-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-27-2006 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Unlawful possession of a controlled substance - Verdict instruction - Jury instruction on Soldiers and Sailors Civil Relief Act - Warrant affidavit Judge(s) Concurring: Lee and Myers, P.JJ., Southwick, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-08-2004 Appealed from: Pike County Circuit Court Judge: Mike Smith Disposition: CONVICTION OF FOUR COUNTS OF POSSESSION OF CONTROLLED SUBSTANCES AND SENTENCE OF FIFTY-TWO YEARS, WITH TWENTY-TWO YEARS TO SERVE IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AND THIRTY YEARS ON POST-RELEASE SUPERVISION. District Attorney: DEE BATES Case Number: 04-331-KB-1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kenneth McKlemurry |
NELSON SHANE ESTESS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Unlawful possession of a controlled substance - Verdict instruction - Jury instruction on Soldiers and Sailors Civil Relief Act - Warrant affidavit |
| Summary of the Facts: | Kenneth McKlemurry was convicted on four counts of unlawful possession of a controlled substance and sentenced to fifty-two years, with twenty-two years to serve and thirty years on post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Verdict instruction McKlemurry argues that by omitting willingly, unlawfully, and feloniously from the form of the verdict instruction, the State was allowed to prove less than what was charged in the indictment and the State should have been required to prove that the possession was felonious. However, so long as the State proved that McKlemurry knowingly possessed the drugs in question, he in fact committed a felony according to section 41-29-139. Therefore, the language “willingly, unlawfully, feloniously” in the indictment was mere surplusage. Issue 2: Jury instruction on Soldiers and Sailors Civil Relief Act McKlemurry argues that the court erred in refusing his instruction which stated, “This Court instructs the Jury that, as a matter of law, the Soldiers and Sailors Civil Relief Act of 1940 does not apply to criminal cases.” Since this instruction could not assist the jury in resolving a material issue in the case, it was properly refused by the trial court. Issue 3: Warrant affidavit McKlemurry argues that the warrant affidavit contained false statements in the underlying facts and circumstances section. The alleged false statement concerned the agent’s identifying only one informant from which the information was obtained. Assuming only for the purpose of discussion that the agent gave an untruthful statement in the affidavit as to who had personal knowledge of the caller’s identity, the remainder of the information within the informant’s knowledge would be more than enough to establish probable cause for the issuance of the search warrant. |
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