Terry Pegues v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-01377-COA
TERRY PEGUES
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
08/02/2001
HON. R. KENNETH COLEMAN
LAFAYETTE COUNTY CIRCUIT COURT
DAVID L. WALKER
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY:
JAMES M. HOOD III
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
POSSESSION OF MORE THAN ONE OUNCE OF
MARIJUANA WITH INTENT TO DELIVER - 20 YEARS
WITH 5 YEARS SUSPENDED, POST RELEASE
SUPERVISION FOR A PERIOD OF 5 YEARS.
DISPOSITION:
AFFIRMED - 09/10/2002
MOTION FOR REHEARING FILED: 9/19/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE SOUTHWICK, P.J., LEE, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1. This is an appeal from the Circuit Court of Lafayette County of the conviction of Terry Pegues for
possession of more than one ounce but less than one kilogram of marijuana with intent to sell. Pegues was
sentenced to a twenty-year term in the custody of the Mississippi Department of Corrections with five years
suspended. Feeling offended by his conviction and sentence, Pegues offers the following issues on appeal.
1. Whether the trial court erred in failing to sustain the appellant's ore tenus motion to
suppress the evidence seized in the Federal Express package, his home and automobile as a
violation of the state and federal constitution protections against unreasonable searches and
seizures.
2. Whether the evidence in this case is legally sufficient to sustain a verdict.
3. Whether the trial court erred in granting jury instruction S-2.
4. Whether the indictment returned by the grand jury was defective.
5. Whether the trial court erred in denying the appellant's motion for a new trial.
6. Whether the trial court erred in re-sentencing the appellant after the altercation.
FACTS
¶2. A package from Federal Express was addressed to Kevin Brown whose address was listed as Number
8, County Road 185, Abbeville, Mississippi. The package was delivered to the address and signed for by
someone other than Terry Pegues. However, Terry Pegues indicated that the person next to him at the door
was Kevin Brown. The man next to him was in fact his roommate and not named Kevin Brown. The
signature on the package said "Kevin Brown."
¶3. After the package delivery was completed, agents were summoned to arrest Pegues. Pegues was
covered only by a towel and in his bathroom at the time of his arrest. The toilet was flushed by Pegues just
prior to law enforcement entering the room. An investigation of the sewer line resulted in the recovery of a
plastic bag containing what looked to be crack cocaine. The location was secured with several agents on
the scene while others went to obtain search warrants for the property.
¶4. While waiting for the agents to return with the warrants, Pegues allegedly volunteered that there was
marijuana located in the refrigerator and the car parked outside. Neither of these locations was searched
until warrants were obtained. In each location the agents found marijuana.
¶5. Pegues was found guilty of possession of more than one ounce of marijuana with intent to sell. After his
sentencing, he refused to comply with the custodial officer's directions and involved himself in an altercation
in the courtroom. His initial sentence allowed for suspended time, but based on his behavior in the
courtroom post-sentencing, the prosecution filed a motion for re-sentencing or to revoke Pegues'
suspended sentence.
¶6. Over the objection of defense counsel, the judge agreed to re-sentence Pegues. His initial sentence was
twenty years to serve with ten years suspended. His new sentence was twenty years to serve with five
suspended and five under post-release supervision. The guilty verdict, the initial sentencing and the amended
sentence occurred within the same term of court. Pegues filed a motion for JNOV or a new trial and both
motions were overruled.
¶7. We have chosen to address these issues in the order in which they would occur in the trial process.
DISCUSSION
1. Whether the indictment returned by the grand jury was defective.
¶8. The validity of the indictment was not brought before the circuit court to review. Therefore we cannot
review this issue as it is not properly before this Court. "Because these arguments are not preserved for
appeal, this court cannot reverse based upon them." Haddox v. State, 636 So. 2d 1229, 1240 (Miss.
1994).
2. Whether the trial court erred in failing to sustain the appellant's ore tenus motion to
suppress the evidence seized in the Federal Express package, his home and automobile as a
violation of the state and federal constitutions' protections against unreasonable searches
and seizures.
¶9. The trial court determines in its discretion what evidence is admissible. Muscolino v. State, 803 So. 2d
1240, 1244 (¶16) (Miss. Ct. App. 2002). This Court will reverse the trial court's decision to admit or not
admit evidence only where the trial court abused its discretion. Id. When reviewing a trial court's ruling on a
suppression hearing, we must assess whether substantial credible evidence supports the trial court's finding
considering the totality of the circumstances. Price v. State, 752 So. 2d 1070 (¶9) (Miss. Ct. App. 1999),
citing Magee v. State, 542 So. 2d 228, 231 (Miss. 1989).
¶10. Pegues argued that the evidence seized during the searches should be thrown out because the police
lacked probable cause to search the premises and the Federal Express package. However, it was Federal
Express that contacted the police because several packages of increasing size were being delivered to the
same address but all under different names. Different people signed for these packages thus raising the
suspicions of delivery people that contraband might be contained in these packages. A drug dog was
brought in to sniff the package addressed to Kevin Brown. The dog indicated there were drugs inside. That
alone is probable cause to search the package even though Pegues asserts there was no testimony as to the
veracity and reliability of the informant.
¶11. Upon review of the underlying facts and circumstances, the court found that probable cause existed for
all of the warrants and denied Pegues' motion to suppress the evidence obtained in the searches. We find no
abuse of discretion was committed by the circuit court.
3. Whether the trial court erred in granting jury instruction S-2.
¶12. The State's proposed instruction No. 2 reads as follows:
The defendant, Terry Pegues, has been charged in Count Two of the indictment with the crime of
possession of more than an ounce of marijuana, with the intent to sell, transfer or distribute.
The State has introduced evidence regarding three separate exhibits of alleged marijuana:
1) an exhibit which according to the evidence for the State contains 451.95 grams, or approximately
15.9 ounces, of marijuana and was allegedly delivered to #8 County Road 185, Abbeville,
Mississippi, by Libby Lytle posing as a Federal Express Courier;
2) an exhibit which according to the evidence for the State contains 94.95 grams, or approximately
3.35 ounces, of marijuana and was allegedly recovered from a Chevrolet vehicle which was parked at
#8 County Road 185, Abbeville, Mississippi;
3) an exhibit which according to the evidence for the State contains 57.57 grams, or approximately
2.0 ounces of marijuana and was allegedly recovered from the refrigerator at #8 County Road 185,
Abbeville, Mississippi;
If you find from the evidence in this case beyond a reasonable doubt that the defendant, Terry
Pegues, on or about the 11th day of January, 2002, of Lafayette County Mississippi:
1) knowingly and willfully possessed any one or more of the above three listed exhibits;
2) that any such exhibit so possessed by the defendant did contain marijuana;
3) that the defendant knew it was marijuana;
4) and that he possessed such marijuana with the intent to sell, transfer or distribute it to another;
then you shall find the defendant guilty of possession of more than one ounce of marijuana with the
intent to sell, transfer or distribute.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then
you shall find the defendant not guilty of possession of marijuana with intent to sell, transfer or
distribute.
¶13. "At trial, the jury should be instructed in language that tracks the indictment; however, failure of the
instruction to contain this language does not necessarily render it fatally defective." Richmond v. State, 751
So. 2d 1038, 1046 (¶21) (Miss. 1999).
¶14. Pegues' argument is that the language of S-2 is not equivalent to that of the indictment. Unlike the jury
instruction that lists the separate groups, the indictment lumps the weight of the marijuana together the result
being a seemingly sizable amount. Interestingly, each of the bundles separately weighed over one ounce.
The jury instruction allows the jury to find Pegues guilty if they find that he had control over even one of the
smaller groups.
¶15. Pegues asserts that possession of marijuana with intent was only one count of a four count indictment.
Pegues was found innocent of one of the cocaine charges. Counts three, conspiracy, and four, cocaine
possession with intent, of the indictment were dismissed. The instruction allows for the individual amounts of
marijuana to be considered separately by the jury in order to find him guilty. Pegues wants all or nothing;
that if he could not be found guilty of possession of all of the groups of marijuana he should not be found
guilty of possessing any. The language of the indictment and the language of the jury instruction are not so
far removed from one another to make this instruction fatal.
4. Whether the evidence in this case is legally sufficient to sustain a verdict and whether
the trial court erred in denying the appellants motion for a new trial.
¶16. "If there is sufficient evidence to support a verdict of guilty, this Court will not reverse." Beard v.
State, 812 So. 2d 250, 253 (¶7) (Miss. Ct. App. 2002).
There is sufficient evidence to support a verdict of guilty when there is competent and credible
evidence as to each element of the offense which, when taken together with all inferences which
reasonablely may be drawn from the evidence, and considered in the light most favorable to the
prosecution, permits a hypothetical reasonable juror to find the accused guilty beyond a reasonable
doubt.
Id.; citing McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
¶17. Pegues alleges that the State did not prove that he had actual or constructive control over the Federal
Express package and its contents because the item was addressed to a Kevin Brown and the co-defendant,
Pettis, signed for it. The State alleges that Pegues "indicated by his words and actions that he was the
person who actively received the package." Testimony showed that these alleged "indications" noted as
plural were really a singular motion by Pegues to the delivery person that the package was for Pettis.
¶18. We hold that there was sufficient evidence to support this verdict. Whether this testimony satisfied the
jury is obvious by its verdict. Whether, another reasonable hypothetical jury could find as this jury did is
plausible and therefore this issue is without merit.
5. Whether the trial court erred in re-sentencing the appellant after the altercation in the
court room with law enforcement.
¶19. A judge cannot alter or vacate a sentence once the term of court in which the sentence was given has
ended. Bell v. State, 759 So. 2d 1111, 1115 (¶19) (Miss. 1999). The converse of this is also true.
Mississippi Code Annotated § 99-19-29 (Rev. 2000) allows a court to vacate a suspended sentence for
violation of its terms.
¶20. Pegues was re-sentenced in response to the prosecution's motion for re-sentencing following Pegues'
skirmish with the court's deputies. This motion and the re-sentencing both occurred within the same term of
court as the original trial and sentencing. The court acted within its power. This issue is without merit.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF
CONVICTION OF POSSESSION OF MORE THAN ONE OUNCE OF MARIJUANA WITH
INTENT TO DELIVER AND THE SENTENCE OF TWENTY YEARS WITH FIFTEEN TO
SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AND FIVE YEARS SUSPENDED ON POST RELEASE SUPERVISION AND PAY $100 TO
VICTIM'S COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR.
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