IN THE SUPREME COURT OF MISSISSIPPI. Cause No KA KIMBERLY ANN WHITEHEAD, Appellant. STATE OF MISSISSIPPI, Appellee

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1 E-Filed Document May :58: KA Pages: 18 IN THE SUPREME COURT OF MISSISSIPPI Cause No KA KIMBERLY ANN WHITEHEAD, Appellant v. STATE OF MISSISSIPPI, Appellee APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY, MISSISSIPPI BRIEF OF APPELLANT Submitted by: Kevin D. Camp, MSB #10634 The Camp Law Firm, PLLC 1764 Lelia Drive Jackson, MS Tel: (601) Fax: (601) Attorney for the Appellant

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate disqualifications or recusal. 1. Honorable M. James Chaney, Jr. P.O. Box 351 Vicksburg, MS Honorable Lane Campbell Honorable Bert Carraway Warren County District Attorney s Office P.O. Box 648 Vicksburg, Ms Honorable John Robertson Henry, Jr. Office of the Attorney General of the State of Mississippi P.O. Box 220 Jackson, MS Honorable Kevin D. Camp The Camp Law Firm, PLLC 1764 Lelia Dr. Jackson, MS Kimberly Ann Whitehead Respectfully Submitted, /s/ Kevin D. Camp KEVIN D. CAMP, MSB # Attorney for Appellant -i-

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES iii STATEMENT OF THE ISSUES STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT I. The lower court erred in denying the Defendant s Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict where the evidence submitted by the state was insufficient to prove the elements of the crime charged to a level beyond a reasonable doubt..6 II. III. IV. The lower court erred in denying the Defendant s Motion for New Trial where the verdict of the jury was against the overwhelming weight of the evidence..9 The lower court erred in denying the Defendant s Motion to Suppress Unlawfully Obtained Evidence.10 The lower court erred in granting instructions S-4 and S-5 where the instructions listed two or more precursors and did not specifically list the precursors that the Defendant was alleged to possess 11 CONCLUSION...12 CERTIFICATE OF SERVICE ii-

4 TABLE OF AUTHORITIES Cases Benson v. State, 551 So.2d 188 (Miss.1989)..9 Brown v. State, 358 So.2d 1004 (Miss.1978)..10 Bush v. State, 895 So. 2d 836 (Miss. 2005)....6 Carr v. State, 208 So.2d 886 (Miss.1968) Chim v. State, 972 So. 2d 601 (Miss. 2008).. 10 Conners v. State, 822 So.2d 290 (Miss. Ct. App. 2001)...11 Curry v. State, 249 So.2d 414 (Miss.1971).7 Dixon v. State, 953 So. 2d 1108 (Miss. 2007)..7, 8, 9 Dycus v. State, 875 So.2d 140 (Miss.2004).. 7 Edwards v. State, 469 So.2d 68 (Miss.1985) Glasper v. State, 914 So.2d 708 (Miss.2005) 10 Hamburg v. State, 248 So.2d 430 (Miss.1971)..8 Herring v. State, 691 So.2d 948 (Miss. 1997).9 Jackson v. Virginia, 443 U.S. 307 (1979) iii-

5 May v. State, 460 So.2d 778 (Miss.1984)..7 McFee v. State, 511 So.2d 130 (Miss. 1987).9 Parker v. State, 30 So.3d 1222 (Miss. 2010).6 Reid v. State, 910 So. 2d 615 (Miss. Ct. App. 2005)...11 Vickery v. State, 535 So.2d 1371 (Miss.1988) 7 -iv-

6 STATEMENT OF THE ISSUES I. Whether the lower court erred in denying the Defendant s Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict where the evidence submitted by the state was insufficient to prove the elements of the crime charged to a level beyond a reasonable doubt II. III. IV. Whether the lower court erred in denying the Defendant s Motion for New Trial where the verdict of the jury was against the overwhelming weight of the evidence. Whether the lower court erred in denying the Defendant s Motion to Suppress Unlawfully Obtained Evidence Whether the lower court erred in granting instructions S-4 and S-5 where the instructions listed two or more precursors and did not specifically list the precursors that the Defendant was alleged to possess. -1-

7 STATEMENT OF THE CASE A. Nature of the Case Kimberly Ann Whitehead was convicted of possession of precursor substances and possession of a controlled substance in the Circuit Court of Warren County, Mississippi. Aggrieved, Ms. Whitehead appeals her conviction to this Court and contends that the Circuit Court erred in denying her Motion for Directed Verdict and Motion for JNOV where state failed to present sufficient evidence to establish beyond a reasonable doubt the requisite elements of the crimes charged, that the Circuit Court erred in denying her Motion for New Trial where the verdict was against the overwhelming weight of the evidence, that the Circuit Court erred in denying her Motion to Suppress Unlawfully Obtained Evidence, and in overruling her objections to Jury Instructions S-4 and S-5. B. Course of the Proceedings and Disposition of the Courts Below On March 31, 2014, the trial of this matter set under way in the Circuit Court of Warren County, Mississippi, Judge M. James Chaney, Jr. presiding. The jury returned a verdict finding the Appellant guilty of possession of precursor substances and possession of a controlled substance. It is from this conviction that the Appellant appeals to this honorable Court. C. Statement of the Facts On October 4, 2014, Investigator Mike Traxler, of the Warren County Sheriff s Department, received a tip that crystal methamphetamine was being manufactured at the residence of Kimberly Whitehead. (Tr. 21). Traxler responded to the referenced address along with Investigator Stacey Rollison, of the Warren County Sheriff s Department, to investigate the tip. (Tr. 22). After arriving at the residence, the investigators encountered Ruby Mills upon knocking on the door. (Tr. 22). Investigator Traxler asked Ms. Mills if Kimberly Whitehead -2-

8 was at the residence. (Tr. 22). Ms. Whitehead came to the door and was asked if there were any drugs being manufactured at the residence, to which she responded no. (Tr. 22). Ms. Whitehead led Investigator Traxler to the bedroom she shared with Shane Hulett. (Tr. 23). There Investigator Traxler discovered coffee filters and drug paraphernalia, which lead him to believe narcotics were in the residence. (Tr. 23). Meanwhile, Investigator Rollison had positioned herself behind the residence to maintain a visual of the back door and a shed positioned behind the residence. (Tr. 147). As Investigator Traxler was knocking at the front door, Investigator Rollison observed Ms. Whitehead exit the back door of the residence and deliver a black, square box to Shane Hulett, who was in the shed at the time. (Tr. 149). Investigator Rollison informed Investigator Traxler of this, and Investigator Traxler proceeded to open the door to the shed to secure the individual, Shane Hulett, now known to be inside. (Tr. 175). Investigator Traxler, in the presence of Ms. Whitehead, Ms. Mills, and Mr. Hulett, asked for consent to search the shed. (Tr. 177). Mr. Hulett was asked if he owned the property, to which he replied no. (Tr. 246). However, Mr. Hulett was never asked if he owned the shed, which he did, not Ms. Mills. (Tr. 247). Ultimately, Ms. Mills purportedly gave consent to search the shed after completing a consent for with Investigator Rollison, although she did not own the shed, and testified that she believe she was only consenting to the search of the residence. (Tr. 7, 177, 247). Ultimately, the search of the shed proceeded and revealed Coleman camp fuel, Drano, batteries, a ziplog bag of fertilizer, a mason jar, a box inside a wall with paraphernalia, scales, and product believed to be crystal methamphetamine found hidden in wall. (Tr. 159, 179, 180, 185, 186, 199). -3-

9 Shane Hulett testified that on the day in question he, along with a friend, made plans to manufacture methamphetamines. After acquiring the necessary ingredients, including pseudoephedrine, he proceeded to the shed and began the process around 2:00 p.m. (Tr. 241, 243). Hulett also testified that both Ms. Whitehead and Ms. Mills were sick on the day in question and that neither had any knowledge of his activities that day. (Tr. 243). Hulett testified around 5:00 p.m. that day he entered the house to get coffee filters needed for process and to use the restroom, and in doing so inadvertently left the coffee filters in the bedroom he shared with Ms. Whitehead. (Tr. 244). Further, Hulett testified that the pipe found in the bedroom was also his and he had placed it in the bedroom earlier that day. (Tr. 244). Hulett also testified that around 6:15 p.m. Ms. Whitehead came out to the shed to inform him that she was in the process of preparing dinner. (Tr. 253). Hulett asked Ms. Whitehead to bring him a box of drill bits and other various items so that he could repair a telescope when she returned. (Tr. 254). Hulett denied that Ms. Whitehead had any knowledge that he was manufacturing methamphetamines that day and denied that Ms. Whitehead was the one in possession of any precursor substances, particularly pseudoephedrine and ammonium nitrate, or methamphetamine. (Tr. 255). Ms. Whitehead was never seen with methamphetamine or precursors. (Tr. 165, 166). -4-

10 SUMMARY OF THE ARGUMENT This Court should reverse and render the judgment of the Circuit Court of Warren County, Mississippi. Ms. Whitehead contends that the state failed to present sufficient evidence to establish beyond a reasonable doubt the requisite elements of the crimes charged, that the Circuit Court erred in denying her Motion for New Trial where the verdict was against the overwhelming weight of the evidence, that the Circuit Court erred in denying her Motion to Suppress Unlawfully Obtained Evidence, and in overruling her objections to Jury Instructions S- 4 and S-5. As such, the Appellant respectfully prays that this Court reverse and render the judgment and sentence of the lower court. -5-

11 ARGUMENT I. The lower court erred in denying the Defendant s Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict where the evidence submitted by the state was insufficient to prove the elements of the crime charged to a level beyond a reasonable doubt. The denial of a motion for directed verdict is reviewed de novo. Parker v. State, 30 So.3d 1222, 1231 (Miss. 2010). Thus, this Court must examine the record as a whole to determine whether or not the elements of the alleged crime were established beyond a reasonable doubt. Ms. Whitehead was charged with possession of precursor substances in count one of the indictment, specifically pseudoephedrine and ammonium nitrate, and with possession of methamphetamine in count two of the indictment. In order to prove count one, the State had the burden of proving beyond a reasonable doubt that Ms. Whitehead possessed pseudoephedrine and ammonium nitrate, that each was a scheduled precursor substance, and that she did so with the intent to manufacture methamphetamine. In order to prove count two, the State had the burden of proving beyond a reasonable doubt that Ms. Whitehead willfully possessed more than 0.1 grams, but less than 2 grams of methamphetamine. With regards to both counts, the State simply failed to meet the requisite burden, and this Court should reverse and render the conviction and sentence of the Appellant. The Mississippi Supreme Court has stated that in considering whether evidence is sufficient to sustain a conviction in the face of a motion for directed verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." Carr v. State, 208 So.2d 886, 889 (Miss.1968); see also Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). Thus, the relevant question is whether, after viewing the evidence in the light most favorable to the -6-

12 prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, (1979). Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). The Appellant was convicted of possessing ammonium nitrate and pseudoephedrine with the intent to manufacture methamphetamine in count one, and possession of methamphetamine in count two. The State proceeded under the theory of constructive possession on both counts, as it was admitted that Ms. Whitehead was never observed possessing ammonium nitrate, pseudoephedrine, or methamphetamine. Regarding constructive possession, the Mississippi Supreme Court has said: [w]hat constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of possession is a question which is not susceptible to a specific rule. However, 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 need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Curry v. State, 249 So.2d 414, 416 (Miss.1971). Mere association with the person who physically possessed the controlled substance is insufficient. Dixon v. State, 953 So. 2d 1108, 1112 (Miss. 2007) (citing Vickery v. State, 535 So.2d 1371, 1379 (Miss.1988). The Mississippi Supreme Court has also held that there must be evidence, in addition to physical proximity, -7-

13 showing the defendant consciously exercised control over the contraband, and absent this evidence, a finding of constructive possession cannot be sustained. Id. at The evidence introduced at trial showed that the ammonium nitrate was found in a bag on a shelf in the shed behind Ms. Whitehead s residence. (Tr. 185). The shed that Shane Hulett occupied at the time the investigators arrived. No pseudoephedrine was found. The investigators did find old pseudoephedrine packets and discovered pseudoephedrine contained in a mixture that was found in a mason jar behind the shed occupied by Shane Hulett. (Tr. 139, 223). Methamphetamine was also discovered in the shed. But, no evidence was introduced to support a finding that Ms. Whitehead was aware of the substances or that she ever exercised control over them. In fact, the evidence revealed that Ms. Whitehead was sick in bed most of the day and was never in the shed or aware of Shane Hulett s activities in the shed. (Tr. 243). This case is not dissimilar to that of Hamburg v. State, 248 So.2d 430 (Miss.1971). In Hamburg, two brothers were traveling in a vehicle that became the subject of a traffic stop. The defendant was the driver and owner of the vehicle; his brother was a passenger. After stopping the car, a search by police officers led to the discovery of pills of LSD on the defendant s brother. Despite the fact that the brother was in possession of the controlled substance, in addition to charging the brother, the State pursued possession charges against the defendant under the theory of constrictive possession. The Mississippi Supreme Court reversed the conviction of Hamburg for possession, finding that [i]n the instant case the State not only failed to connect the driver with the possession of the contraband (except by the presumption of constructive possession), but the witness for the State identified the person in possession of the LSD to be Gary Hamburg and not Rodney Hamburg, the driver. Thus, the State denied the presumption of constructive possession by showing facts of actual possession to be in another other than the owner and operator of the vehicle. The motion for a directed verdict as to Rodney Hamburg should have been sustained when made at the close of the State's testimony. -8-

14 Id. at The decisions affirming a possession conviction based on the constructive possession doctrine contained evidence in addition to physical proximity linking the defendant to the substance. Dixon, 953 So. 2d at In this case, there was no evidence of sufficient proximity, nor was there evidence that Ms. Whitehead exerted control over the premises or placed herself in the midst of items implicating her participation in the processing of the substance. See Id. at Shane Hulett, the owner of the shed, occupied the shed at the time the investigators arrived. He also pled guilty to possessing the substances and testified that Ms. Whitehead knew nothing of his activities. The evidence introduced by the State simply fails to support a finding that Ms. Whitehead constructively possessed any precursor substances or methamphetamine on the day in question and the Motion for Directed Verdict and Motion for JNOV should have been sustained. As such, this Court should reverse and render the judgment and sentence of the circuit court. II. The lower court erred in denying the Defendant s Motion for New Trial where the verdict of the jury was against the overwhelming weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss. 1997). Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Id. See also Benson v. State, 551 So.2d 188, 193 (Miss.1989); McFee v. State, 511 So.2d 130, (Miss. 1987). -9-

15 The case sub judice clearly presents a situation in which an unconscionable injustice would occur if the verdict were allowed to stand. As discussed above, the evidence presented does not support the verdict rendered in this matter. The verdict of the jury was against the overwhelming weight of the evidence. Hulett testified that Ms. Whitehead had nothing to do with the manufacturing of methamphetamines and had no knowledge that it was occurring. His testimony, coupled with the lack of testimony by the State that Ms. Whitehead was in the shed or had any knowledge or possession of any materials or substances in the shed, shows that the verdict was against the overwhelming weight of the evidence. III. The lower court erred in denying the Defendant s Motion to Suppress Unlawfully Obtained Evidence. In reviewing the trial court's denial of a motion to suppress, an appellate court will only reverse the trial court's determination of this issue when such determination is manifestly wrong... or contrary to the overwhelming weight of the evidence. Chim v. State, 972 So. 2d 601, 607 (Miss. 2008) (quoting Glasper v. State, 914 So.2d 708, 716 (Miss.2005)). The evidence introduced during the hearing on the Motion to Suppress supports the Appellant s contention that the consent to search the shed was given without authority, and thus is invalid. Ruby Mills testified that she consented only to the search of the residence, as she exercised control over only the residence. (Tr. 7). Ms. Mills also testified that she did not own the shed behind the residence; Shane Hulett owned the shed. (Tr. 7). The Mississippi Supreme Court has held that a third party can give consent to search if that party possesses common authority, mutual use[,] and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy. Brown v. State, 358 So.2d 1004, 1005 (Miss.1978). In the case sub -10-

16 judice, the evidence shows that Ms. Mills did not possess common authority, mutual use, and joint control over the shed. (Tr. 7). The shed was in exclusive control and possession of Shane Hulett. As such, Shane Hulett was the only person who could give valid consent to search the shed, and such consent was not given. Additionally, in denying the Motion to Suppress, the lower court made the finding that Ms. Whitehead has no standing to object to the consent to search of the shed if it was not her shed and she had no access to it and no property in it. (Tr. 35). The Appellant would respectfully contend that it cannot be the case that Ms. Whitehead simultaneously lacked standing to object to the search of the shed because it was not her shed, she had no access to the shed, and no property in it, and at the same time be charged and convicted of possessing substances found only in the shed. IV. The lower court erred in granting instructions S-4 and S-5 where the instructions listed two or more precursors and did not specifically list the precursors that the Defendant was alleged to possess. In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. Conners v. State, 822 So.2d 290, 292 (Miss. Ct. App. 2001). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Further, the prosecution is held strictly to prove the allegations of the indictment and may not vary from the proof of those allegations unless the variance is a lesser-included-offense. Reid v. State, 910 So. 2d 615, 623 (Miss. Ct. App. 2005). In this case, the prosecution varied from the allegations of the indictment in jury instructions S-4 and S-5. And, the lower court erred in granting these instructions over the objection of the Defendant. The indictment specifically lists the precursor substances Ms. -11-

17 Whitehead was alleged to possess as ammonium nitrate and pseudoephedrine. However, instructions S-4 and S-5 vary from the indictment by merely listing two or more precursors, and does not list the precursors that Ms. Whitehead was alleged to possess. This variance is misleading, confusing, and is a fatal variance from the charge alleged in the indictment, as it does not specifically reference the precursors Ms. Whitehead was alleged to have possessed. CONCLUSION For the aforementioned reasons, this Court should reverse and render the judgment of the Circuit Court of Warren County, Mississippi. -12-

18 CERTIFICATE OF SERVICE I, Kevin D. Camp, do hereby certify I have mailed by United States mail, postage prepaid, a true and correct copy of the above and foregoing document to: Honorable M. James Chaney, Jr. P.O. Box 351 Vicksburg, MS Honorable Lane Campbell Honorable Bert Carraway Warren County District Attorney s Office P.O. Box 648 Vicksburg, Ms And, do hereby certify on this day I electronically filed the foregoing documents with the Clerk of the Court using the MEC system with sent notification of such filing to the following: Honorable John Robertson Henry, Jr. Office of the Attorney General of the State of Mississippi P.O. Box 220 Jackson, MS This service effective this the 1st day of May, /s/ Kevin D. Camp KEVIN D. CAMP Attorney for Appellant -13-