Freddie W. Fultz v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01497-COA
FREDDIE W. FULTZ
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
APPELLANT
APPELLEE
07/28/2000
HON. MIKE SMITH
PIKE COUNTY CIRCUIT COURT
T. PATRICK WELCH
PAUL MCGERALD LUCKETT
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY:
DUNN O. LAMPTON
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
UNLAWFUL POSSESSION OF MARIJUANA WITH
INTENT TO DISTRIBUTE. THIRTY YEARS
IMPRISONMENT, $1,000,000 FINE AND $10,000 TO
CRIME VICTIM'S COMPENSATION FUND.
DISPOSITION:
AFFIRMED - 03/12/2002
MOTION FOR REHEARING FILED: 4/10/2002; denied 7/16/2002
CERTIORARI FILED:
8/8/2002; denied 10/3/2002
MANDATE ISSUED:
10/24/2002
BEFORE KING, P.J., THOMAS, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1. Freddie Fultz was convicted of possession with intent to distribute a controlled substance in Pike
County. Judge Mike Smith sentenced Fultz to thirty years in the custody of the Mississippi Department of
Corrections, a $1,000,000 fine and a $10,000 contribution to the Crime Victim's Compensation Fund.
Fultz appeals the decision of the circuit court. In particular, Fultz contends that the trial court erred in
denying his motion to suppress evidence of search, in disallowing defendant's jury instruction D-17 and that
the verdict was against the overwhelming weight of the evidence.
FACTS
¶2. Freddie Fultz was driving up I-55 through Pike County when he was pulled over by Highway
Patrolman Elmo Townsend. Townsend was in Pike County on special detail to check for safety violations
on eighteen wheeler trucks. He was working with another officer on a stop when Fultz passed them.
Trooper Townsend said he heard a loud banging noise as the truck passed. When it was safe for him to
leave the scene being worked by the other trooper, Townsend pursued Fultz and pulled him over to check
Fultz's license, registration and the truck's load.
¶3. Townsend testified that a strong odor of green marijuana was about Fultz's person when Fultz
approached. Trooper Townsend checked out the license and registration of the truck and its driver. He
found them all to be satisfactory. He found the load to be loose as two of the chains holding the cargo had
slack in them. The loose load was making the loud banging noise when the truck initially passed the
troopers. Townsend testified that as he walked to the front of the truck he again smelled the strong odor of
green marijuana escaping from the truck's cab. He completed his safety check and returned Fultz's driver's
license to him.
¶4. Townsend then asked Fultz if he had anything illegal in the truck. Fultz answered no but Townsend said
he could see a radar detector, which is illegal in a commercial vehicle, on the dashboard. The officer asked
to see the inside of the "tractor and I'd like to take a look at his log books and bill of lading." Here is where
the versions of the story diverge. Townsend testified that Fultz hopped into the truck on the driver's side and
leaned over to unlock the passenger side door to allow Townsend entry. Fultz says he did not consent to
any search and he did not unlock the door for the trooper.
¶5. Townsend said he was struck by the pungent odor of green marijuana upon entering the cab of the
truck. He went into the sleeper compartment, lifted the bed and found several "bales" of marijuana. When
asked, Fultz denied any knowledge of the marijuana stating that he did not know what Townsend was
talking about. At that point, Townsend handcuffed Fultz to the steering wheel and read him the Miranda
warning.
DISCUSSION OF THE LAW
¶6. 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). The admissibility of evidence lies within the trial court's discretion and will only be reversed if this
discretion is abused. Crawford v. State, 754 So. 2d 1211, 1215 (¶7) (Miss. 2000); Hentz v. State, 542
So. 2d 914, 917 (Miss. 1989). "The discretion of the trial court must be exercised within the boundaries of
the Mississippi Rules of Evidence." Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990).
¶7. Our sticky point here is whether probable cause existed for the search based on the "plain smell" of
green marijuana and/or the radar detector observed by Trooper Townsend. The radar detector was on the
front dash. The packages of marijuana were wrapped in plastic wrap, then with fabric softener sheets and
once again with plastic wrap. It was being stored in the sleeper section of the truck on the floor. Fultz
testified that he had been riding with the windows of his cab rolled up with little or no fresh air passing
through. The radar detector was enough probable cause to open the door to the truck. When the truck
door was open, Townsend said he smelled the marijuana. Did the scent of marijuana give Townsend
probable cause to search the back portion of the cab of the truck?
¶8. At the suppression hearing the judge held that Townsend's extensive training in drug enforcement
classes over several years would have allowed Townsend to recognize the smell of unburned marijuana.
Had this been a markedly smaller amount of marijuana, packaged in similar fashion, the likelihood that it
would be fragrant enough to identify, without the help of the well trained drug sniffing dog, is slim. This
massive amount was held to be fragrant enough for Trooper Townsend to recognize. Townsend testified
that there was so much that the smell was pungent enough to give him a headache while taking photographs
of the stash. The trial court found that Townsend's ability to identify green marijuana was acute enough to
be able to detect nearly one hundred pounds of poorly wrapped marijuana which upheld the search and
seizure.
¶9. In addition, Fultz is not afforded the same protections in a motor vehicle that one is afforded in one's
home. Strange v. State, 530 So. 2d 1336, 1340 (Miss. 1988) (the plain smell corollary to plain view
would not save the State from an illegal seizure of marijuana found in the home where privacy interests are
highest).
¶10. Finally Fultz's reasoning for suppression is flawed even though the language in Miss. Code Ann § 6313-21 (Rev. 2001) that the authority to make safety inspections is "limited to the inspection . . . for
mechanical defects and shall not authorize the search of the vehicle or the occupants . . . for any other
purpose without due process of law," makes the seizure of the marijuana unlawful. Proof of his flawed
reasoning is found in Jones v. State, 761 So. 2d 907, 910 (¶13)(Miss. Ct. App. 2000). In Jones, this
Court held that the rules of evidence control the admissibility of evidence in judicial proceedings. The rules
are "subject to any constitutional concerns that might come into play, and not according to the dictates of
legislative enactments." Id. See also Whitehurst v. State, 540 So. 2d 1319, 1322-23 (Miss. 1989).
Accordingly, this issue is without merit.
¶11. The standard of review in evaluating jury instructions is found in Collins v. State, 691 So. 2d 918,
922 (Miss. 1997).
In determining whether error lies in the granting or refusal of various instructions, the instructions
actually given must be read as a whole. When so read, if the instructions fairly announce the law of the
case and create no injustice, no reversible error will be found.
Id. (quoting Hickombottom v. State, 409 So. 2d 1337, 1339 (Miss. 1982)).
¶12. We will now review three jury instructions all tendered by the defense with the first being refused and
the following two being given.
Defendant's denied Jury Instruction 17
The Court instructs the Jury that if you can reconcile the evidence upon any reasonable hypothesis
consistent with the accused's innocense, you should do so and find him not guilty.
While instruction 17 was denied, Instructions 13 and 16 were given.
Defendant's given Jury Instruction 13
The Court instructs the Jury that if the State has failed to prove beyond a reasonable doubt that
Freddie W. Fultz knowingly and feloniously had more than five kilograms of marihuana in his
possession, then you should find him not guilty. However, if you find Freddie W. Fultz guilty of
possession of more than five kilograms of marihuana, and if the State fails to prove beyond a
reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocense that
the said Freddie W. Fultz had possession of more than five kilograms of marihuana with the unlawful
and felonious intent to distribute said marihuana to other persons, then you should find the said
Freddie W. Fultz guilty of possession of more than five kilograms of marihuana but not guilty of intent
to distribute said marijuana.
Defendant's given Jury Instruction 16
The court instructs the Jury that if there be facts or circumstances in this case susceptible of two
interpretations, one favorable and the other unfavorable to the accused, when the Jury has considered
such fact or circumstance with all other evidence, there is a reasonable doubt as to the correct
interpretation, then you, the Jury, must resolve such doubt in favor of the accused, and place upon
such fact or circumstances the interpretation most favorable to the accused.
In reading the three instructions we find the same language, about which Fultz is concerned, is contained in
the two instructions that were given as well as the one denied. His instruction D-17 was repetitive and
unnecessary. There is no merit to this claim.
¶13. If the search was legal, then the verdict is reasonable in view of the overwhelming weight of the
evidence. However, none of that matters because Fultz did not raise the issue of whether the verdict was
against the overwhelming weight of the evidence in his motion for new trial. We cannot review what is not
properly placed before us. As an appeals court, we cannot find that a trial judge committed reversible error
on a matter not put before him to consider. Smith v. State, 724 So. 2d 280, 313 (¶127) (Miss. 1998).
This claim is procedurally barred.
¶14. Freddie Fultz was transporting nearly one hundred pounds of marijuana in the cab of his truck. Officer
Townsend caught Fultz. The legislature has deemed it a worse crime to transport and possibly distribute
marijuana than it is to attack someone with a deadly weapon. While we may not agree with that view, we
affirm this conviction as no reversible error was committed by the trial court.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF
UNLAWFUL POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND
SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS AND A FINE OF $1,000,000 AND $10,000 TO THE CRIME VICTIM
COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, CHANDLER AND
BRANTLEY, JJ., CONCUR. SOUTHWICK, P.J. AND IRVING, J., CONCUR IN
RESULT ONLY.
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