Pittman v. State
| Docket Number: | 2002-KA-01509-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-02-2004 Opinion Author: Bridges, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Possession of precursor chemicals - Illegal search - Chain of custody - Amendment of indictment - Jury instruction - Admission of evidence - Cruel and unusual punishment Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Myers, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-15-2002 Appealed from: Greene County Circuit Court Judge: Kathy King Jackson Disposition: CONVICTED OF POSSESSION OF PRECURSOR CHEMICALS WITH THE INTENT TO MANUFACTURE METHAMPHETAMINES; SENTENCED TO TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY A FINE OF $10,000 Case Number: 21-01-10,011(2) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Wilbur Pittman a/k/a Wilbur Gene Pittman, Jr. and Sarah E. Pittman |
LESLIE D. ROUSSELL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: 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: | Possession of precursor chemicals - Illegal search - Chain of custody - Amendment of indictment - Jury instruction - Admission of evidence - Cruel and unusual punishment |
| Summary of the Facts: | Wilbur Pittman, Jr. and Sarah Pittman were found guilty of possession of precursor chemicals with the intent to manufacture methamphetamines and were both sentenced to twenty-five years. They appeal. |
| Summary of Opinion Analysis: | Issue 1: Illegal search The Pittmans argue that the document, said to contain underlying facts and circumstances, was not attached to the affidavit for the search warrant despite the fact that the affidavit stated that the said document was attached and that the evidence should be suppressed because the judge was given no information for determining the reliability of the informant. The magistrate must make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Although the search warrant was not accompanied by an attached “Underlying Facts and Circumstances” sheet, which was to contain facts supporting the issuance of the search warrant, that fact alone does not render the search warrant fatally flawed. The officer's testimony was properly considered as supplementing the search warrant affidavit, and the issuing judge was presented with a substantial basis for finding probable cause. Issue 2: Chain of custody An officer with the City of Waynesboro Police Department and an agent assigned to the South Mississippi Narcotic Task Force was asked to identify a variety of evidentiary items. The Pittmans argue that the court erred in overruling their objection to the officer's testimony as to items other than those he personally collected. They argue that the State failed to establish a proper chain of custody as to these items. The burden of producing evidence to demonstrate a break in the chain of custody rests with the defendant, and the test for determining whether the defendant has met this burden is whether there is any reasonable inference of likely tampering with or substitution of evidence. By presenting no evidence, the Pittmans clearly failed to satisfy their burden. Issue 3: Amendment of indictment At trial, the State offered no evidence to prove that the Pittmans possessed iodine as stated in the indictment and, accordingly, requested that the indictment be amended to remove iodine as an element. The court allowed the amendment, and the Pittmans argue this was error. An indictment may be changed so long as it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. The State clearly proved that the Pittmans possessed two or more precursor elements, specifically ephedrine, denatured alcohol, and ethyl ether. Therefore, the presence of iodine in the indictment is inconsequential to the offense with which they were charged and did nothing to alter any defense raised by the Pittmans. Issue 4: Jury instruction The Pittmans contend that iodine, ephedrine, denatured alcohol, and ethyl ether, were each an essential element of the crime charged, and therefore, the court erred in failing to instruct the jury as to each element of the crime charged. The deletion of iodine from the jury instruction simply removed language that was unnecessary to prove the offense charged in the indictment. For a conviction, the State was only required to prove that the Pittmans were in possession of two of the four chemicals listed in the indictment. The State offered evidence as to three. Issue 5: Admission of evidence The Pittmans argue that the court erred in admitting tupperware containers which were allegedly used in the manufacturing of methamphetamines, because the containers were completely irrelevant. The court’s admission of the containers did not deprive the Pittmans of any due process rights and, accordingly, did not prejudice their defense in any measure. The fact that the containers were not found to have contained denatured alcohol and ethyl ether at the time of seizure is irrelevant, because the containers were not for proving the presence of the chemicals but went to the intent issue. Issue 6: Cruel and unusual punishment The Pittmans argue that their sentences constituted cruel and unusual punishment, especially when considering the fact that they are both first time offenders. The general rule is that a sentence will not be disturbed on appeal unless the sentence exceeds the maximum term allowed by the statute. The Pittmans’ sentences are well within the statutory limits. The Pittmans also argue that they were erroneously denied a presentence report. However, they have no right to and, therefore, may not demand a presentence report. In addition, they were clearly afforded the opportunity to address the court. |
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