IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 96-KA-01158-COA

MARVIN 'BUTCH' LOGAN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/14/1996

TRIAL JUDGE: HON. MIKE SMITH

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: ALBERT LIONEL NECAISE

WILLIAM ROSS CAPPS

ROBERT WARREN MOAK

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: DUNN LAMPTON

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: GUILTY OF SEVEN COUNTS OF DEFRAUDING STATE

GOVERNMENT AND FIVE COUNTS OF UTTERING

FORGERY - THREE YEARS EACH COUNT TO RUN

CONSECUTIVELY WITH COUNTS 8-12 RUNNING

CONCURRENT TO COUNTS 1-7

DISPOSITION: REVERSED AND REMANDED - 04/20/1999

MOTION FOR REHEARING FILED: 5/19/99; denied 09/07/99

CERTIORARI FILED: 10/06/99; granted 12/16/99 only as to first issue of validity of

search and seizure; granted 3/16/2000 as to issues 2, 3 & 4

MANDATE ISSUED:

BEFORE McMILLIN, C.J., KING, P.J., AND DIAZ, J.

DIAZ, J., FOR THE COURT:

¶1. Marvin "Butch" Logan appeals the decision of the Lincoln County Circuit Court convicting him of seven
counts of defrauding the state government and five counts of uttering forgery. Logan asserts the following

issues in this appeal: (1) that the jury was unduly prejudiced by the explanation of Mississippi law from the

testimony of the State's witnesses, (2) that the trial judge failed to suppress evidence obtained from unlawful

searches and seizures, (3) that the trial judge allowed the testimony of the State's handwriting expert without

proper notice, (4) that the jury was unduly prejudiced from the testimony referencing stolen motors found

on defendant's property, (5) that the trial judge improperly allowed evidence of uncharged forged receipts

in violation of MRE 404(b) and 403, (6) that the court allowed insurance investigative files into evidence in

violation of the Mississippi Rules of Evidence, (7) that the trial judge improperly allowed the State's expert

on identifying stolen vehicles to testify outside his scope of expertise, (8) that the trial judge failed to demur

to the indictment due to duplicity, (9) that the trial judge failed to dismiss multiplicious counts, and (10) that

the improper comments made by the State in the closing arguments unduly prejudiced the jury. Finding

numerous errors, we reverse and remand for a new trial.

FACTS

¶2. Logan lived in Brookhaven, Mississippi, and operated a business rebuilding salvaged Chevrolet S-10

and GMC pick up trucks in his spare time. The business consisted of a small mechanic's shop located

behind his residence. Logan purchased numerous trucks at salvage auctions conducted statewide by

different insurance companies. Some of the trucks were purchased to rebuild and others were purchased

for parts. Over several years, Logan rebuilt over seventy vehicles.

¶3. After Logan rebuilt a wrecked truck, he was required by Mississippi law to have it inspected by the

state highway patrol so that a new certificate of title could be issued to replace the salvage title. After the

inspection, the application for title went to the Mississippi State Tax Commission who in turn issued a new

title.

¶4. Several other individuals also used Logan's shop to rebuild vehicles. In October of 1995, Johnny Joe

Gunnell, an individual who used Logan's shop, was stopped by the police for a traffic violation. Gunnell was

driving a stolen vehicle. Several more vehicles at Gunnell's house turned out to be stolen, and Gunnell

directed authorities to Logan and his repair shop. The police arrived at Logan's house, and they searched

the repair shop. They examined the various vehicles and parts in the shop area. During this search the police

observed an automobile engine with metal shavings around the engine but they did not seize anything. The

next day, the police returned to Logan's property with Virgil Luke, a criminal investigator who specialized in

stolen vehicle identification. The police seized an engine and an engine with a transmission, claiming them to

be stolen. The police further told Logan that he had to bring in all vehicles in his possession for inspection.

Logan brought in numerous vehicles, many of which the highway patrol seized.

¶5. Logan was indicted on several charges of violation of the Mississippi Chop Shop Act and conspiracy.

On February 14, 1996, the police obtained a search warrant to search Logan's residence. Upon searching

his residence, the police seized four boxes of files containing documents which were organized into separate

folders for the various vehicles that Logan had rebuilt over the years. Logan was then indicted by the grand

jury for seven counts of defrauding the Mississippi Department of Public Safety and the Mississippi Tax

Commission and six counts of uttering forgery to the Mississippi Department of Public Safety when he

submitted documents to the Department of Public Safety so that he could retitle seven different automobiles

that he had rebuilt.

¶6. On July 19, 1996, the defense filed a combined motion to suppress the evidence challenging the several
different searches of his home and shop and the requirement by the highway patrol that he bring them all

vehicles in his possession that he had rebuilt. At a hearing on July 19, 1996, the court denied the motion to

suppress in toto.

¶7. The State filed a motion to transfer the case from Judge Keith Starrett to Judge Mike Smith, and the

court entered an order to that effect. On August 12, 1996, the State requested, and the circuit clerk issued,

a subpoena duces tecum to obtain hand-written documents from the Mississippi Employment Security

Commission so they could analyze the handwriting of Carolyn Logan, Logan's wife. The State also

presented a motion to the trial judge requesting an order requiring Carolyn Logan to provide handwriting

exemplars. Although Logan contends that he was never served a copy of this motion, the trial judge signed

an order requiring handwriting exemplars on August 13, 1996. On September 23, 1996, the State filed a

motion to exclude witnesses produced on September 20, 1996, which was granted by the trial court. On

September 25, 1996, the State filed a second motion to amend the indictment so that it would conform to

the evidence. On the same day, Logan filed a motion to "demur to the indictment due to duplicity" which

was denied by the trial judge. Logan also filed a motion to "dismiss the multiplicious charges" which was

also denied by the trial judge. After the State added an expert witness two working days prior to trial,

Logan filed a motion in limine or in the alternative to continue the trial. The trial judge denied this motion,

stating that two working days was sufficient time for the defense to prepare for this expert witness.

¶8. The case went to trial on September 24, 1996 and on October 4, 1996, the jury found Logan guilty of

twelve of the thirteen counts in the indictment. On October 9, 1996, Logan filed a motion for a new trial

which the trial court denied. Feeling aggrieved, Logan perfected this appeal.

DISCUSSION

I. THE JURY WAS UNDULY PREJUDICED BY THE EXPLANATION OF MISSISSIPPI

LAW FROM THE TESTIMONY OF THE STATE'S WITNESSES

¶9. Mississippi Rule of Evidence 701 applies to lay witness testimony:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited

to those opinions or inferences which are (a) rationally based on the perception of the witness and (b)

helpful to the clear understanding of his testimony or the determination of a fact in issue.

In Jones v. State, 678 So. 2d 707, 710 (Miss. 1996), the Mississippi Supreme Court explained the twopart test for admissibility of lay witness opinion testimony, stating that:

First, the testimony must assist the trier of fact. Second, the opinion must be based on the witness'

firsthand knowledge or observation . . . . The second prong of the test is in accordance with M.R.E.

602 requiring that a witness who testifies about a certain matter have personal knowledge of that

matter.

Furthermore, Mississippi Code Annotated Section 99-17-35 (Supp. 1997) states that only the trial judge

will instruct the jury as to the principles of applicable law in a particular case and that it must be done in

writing. See Collins v. State, 701 So. 2d 791, 795 (Miss. 1997)(holding that it was error for trial judge to

send copy of Blacks Law Dictionary to jury room). The Mississippi Supreme Court held that the only

person who can instruct the jury on the law is the trial judge. Clemons v. State, 320 So. 2d 368, 372

(Miss. 1975)(stating "it is the duty of the trial judge to instruct the jury and not the district attorney").
¶10. Over Logan's objection, Investigator Allen Applewhite of the Mississippi Highway Patrol testified

about the Mississippi Chop Shop Law. The trial judge stated that Applewhite would be allowed "to testify

as to what he [knew] of the law as it concern[ed] these inspections which [were] part of his job."

Applewhite continued his testimony by relating and explaining the history and requirements of the

Mississippi Chop Shop Law. During the testimony of Virgil Luke, the State asked him numerous questions

about the law in Mississippi with regard to stolen vehicles and searches and seizures of vehicles. The State

further questioned Luke about the authority of the investigators to inspect automobile rebuilders, dealers,

and salvage yards without search warrants. The court overruled Logan's objection holding that Luke was

qualified to discuss the Mississippi law because he was a former highway patrolman who knew the

inspection laws. The State continued questioning Luke about his authority "to inspect certain places doing

certain kinds of business dealing with automobiles." The court again overruled Logan's objection and

allowed Luke to testify about a Mississippi statute that gave officers the authority to do administrative

inspections.

¶11. Luke and Applewhite both gave instructive testimony to the jury about the applicable law in this case

in direct contravention to Mississippi law. Both were testifying outside of their respective area of expertise

when they explained various portions of Mississippi law to the jury. Under statutory law and case law such

as Collins and Clemons, only the trial judge can instruct the jury, in writing, on the law. Here, the trial judge

erroneously ruled that both investigators could testify about Mississippi law with regard to this case. This

assignment of error is well taken.

II. THE TRIAL JUDGE FAILED TO SUPPRESS EVIDENCE OBTAINED FROM

UNLAWFUL SEARCHES AND SEIZURES

¶12. Section 23 of the Mississippi Constitution and the Fourth Amendment to the United States

Constitution are the foundation of Mississippi search and seizure law. Jones v. State, ex rel., Mississippi

Dept of Public Safety, 607 So. 2d 23, 26 (Miss. 1991). The wording of the federal amendment is

substantially the same as that of our state constitution. Id. "There is a constitutional preference for searches

pursuant to a warrant. Where there is no warrant, 'the issue for consideration is whether there was valid

consent so that the warrantless search was valid.'" Id.

¶13. In Penick v. State, 440 So. 2d 547, 551 (Miss. 1983), the Mississippi Supreme Court extended

greater protections under State consensual search law than did the United States Supreme Court:

We accord to the U.S. Supreme Court the utmost respect in its interpretation of the U.S. Constitution

. We must, however, reserve for this Court the sole and absolute right to make the final interpretation

of our State Constitution and, while of great persuasion, we will not concede that simply because the

U.S. Supreme Court may interpret a U.S. Constitutional provision that we must give the same

interpretation to essentially the same words in a provision of our state Constitution.

The supreme court further held that consent is valid if there was knowledgeable as well as voluntary waiver

of a party's constitutional right not to be searched. Id. When the defendant knows that he has a right to

refuse and is cognizant of his rights in the premises, then that is knowledgeable consent. Id. at 549-50.

¶14. The United States Supreme Court addressed the consent exception to the requirement of a search

warrant in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Voluntariness is the pivotal determination in
a valid consent to search. Id. at 224. The Court observed that there are "two competing concerns [which]

must be accommodated . . . the legitimate need for such searches and the equally important requirement of

assuring the absence of coercion." Id. at 227. The test of voluntariness is determined from a consideration

of the "totality of the circumstances." Id. at 280.

¶15. In Jones, the Mississippi Supreme Court applied Schneckloth:

Consideration must be given to whether the circumstances were coercive, which necessitates attention

to whether the person was confronted with many officers or a display of weapons, whether he was in

custody and, if so, whether the circumstances of the custody were coercive, and whether the alleged

consent was obtained in the course of station house interrogation.

Jones, 607 So. 2d at 27. The subject's knowledge of the right to refuse is another factor in determining

voluntariness. Id.

¶16. For a search warrant to be valid, there must be probable cause. Illinois v. Gates, 462 U.S. 213, 239

(1983). According to the Mississippi Supreme Court, "Probable cause exists when facts and circumstances

within an officer's knowledge, or of which he has reasonable trustworthy information, are sufficient

themselves to justify a man of average caution in the belief that a crime has been committed and that a

particular person committed it." Bevill v. State, 556 So. 2d 699, 712 (Miss. 1990). The police provide

evidence of the underlying facts and circumstances by sworn affidavit which may be supplemented by oral

testimony. Barrett v. Miller, 599 So. 2d 559, 566 (Miss. 1992). In Carney v. State, 525 So. 2d 776,

787 (Miss. 1988), the Mississippi Supreme Court held that indirect search warrants would not be

sanctioned because the Fourth Amendment was designed to protect against general warrants and other

exploratory searches. Search warrants must list the items to be seized with particularity. Id. at 785.

"Descriptions in search warrants need not be positively specific and definite, but are sufficient if the places

and things to be searched are designated in such manner that the officer making the search may locate them

with reasonable certainty." Hamilton v. State, 556 So. 2d 685, 688 (Miss. 1990).

¶17. In the case of Bumper v. North Carolina, 391 U.S. 543 (1968), the United States Supreme Court

set out the standard of proof to be established where the prosecutor seeks to justify the lawfulness of a

search. The State has the burden of proving that consent was given freely and voluntarily, and "this burden

cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id. at 548. The

Mississippi Supreme Court applied the Bumper rationale in Luton v. State, 287 So. 2d 269 (Miss. 1973)

and stated that:

[It] is the burden of the state in a criminal prosecution such as this to prove that the accused

voluntarily consented to the search of his property . . . the state must prove such consent beyond a

reasonable doubt. The same degree of proof is required to show that an accused waived his rights

surrounding the search.

Id. at 271-72.

¶18. The "fruit of the poisonous tree" doctrine-also known as the exclusionary rule-"prohibits introduction

into evidence of tangible materials seized during an unlawful search." Marshall v. State, 584 So. 2d 437,

438 (Miss. 1991) (citing Murray v. U.S., 487 U.S. 533, 536 (1988)). The exclusionary rule prohibits

"testimony concerning knowledge acquired during an unlawful search." Id. (citing Silverman v. U.S., 365
U.S. 505 (1961)). Most importantly, the doctrine:

prohibits the introduction of derivative evidence, both tangible and testimonial, that is, the product of

the primary evidence, or that is otherwise acquired as a result of the unlawful search, up to the point at

which the connection becomes "so attenuated as to dissipate the taint."

Id. (citations omitted). Several exceptions to the "fruit of the poisonous tree" doctrine have been recognized

by the United States Supreme Court. For example, the "independent source" exception was recognized in

Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920), and the "inevitable discovery" exception was

acknowledged in Nix v. Williams, 467 U.S. 431 (1984).

¶19. In this case, there were three different searches of Logan's residence in Brookhaven. The first search

was on October 8, 1995, when the local sheriff and a group of law enforcement officers went to the

Logan's residence after finding stolen vehicles at Johnny Joe Gunnell's residence. At that time the police did

not seize any evidence, but they did testify during trial about what they saw at Logan's residence. The

second search was the following day when the sheriff returned with a number of highway patrol

investigators. During this search the police seized an engine, an engine and transmission mounted together,

and a number of vehicles. Thereafter, the police told Logan to bring in all of the vehicles in his possession

that he had rebuilt for police inspection. The police seized several other vehicles from Logan under this

procedure. The final search of Logan's residence occurred on February 14, 1996, pursuant to a search

warrant. Upon searching Logan's residence, the police seized four boxes of files containing documents

which were organized into separate folders for the various vehicles that Logan had rebuilt over the years.

¶20. Logan filed a motion to suppress the evidence obtained during the searches and seizures alleging

several constitutional violations. With regard to the first search of Logan's residence, he claims that the

search was without a warrant, without probable cause, without consent, and a violation of his rights under

the Fourth and Fourteenth Amendments of the United States Constitution and under Article 3, Section 23

of the Mississippi Constitution. Additionally, Logan claims that he and his wife were not properly advised of

their rights as required under the Fifth Amendment and Fourteenth Amendment to the United States

Constitution and the Mississippi Constitution of 1890 including the right to refuse consent and Miranda

warnings. Therefore, Logan asserts that they could not give valid consent, and in the alternative, that if any

was given, it was the product of coercion, and therefore, not voluntary.

¶21. With regard to the second search of Logan's residence, he claims the same constitutional violations as

in the first search, but also states that the October 9 search was tainted from the constitutional violations of

the October 8 search of Logan's residence and shop. With regard to the vehicles that the police

investigators requested that Logan produce, he claims that the police failed to properly advise him of his

legal rights under the Mississippi and United States Constitutions including the right to refuse consent, the

right not to produce incriminating evidence, and the Miranda warnings. Logan also alleges that this

evidence was tainted from the constitutional violations of the October 8 and 9 searches, and any consent

given by Logan was the result of duress and coercion and was therefore involuntary.

¶22. With regard to the February 14, 1996, search of Logan's residence, he asserts that the warrant was

issued without probable cause and in violation of his rights under the Fourth and Fourteenth Amendments of

the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890, and any

evidence obtained should be suppressed under the exclusionary rule. Logan alleges that the primary

location searched was his automobile repair shop which is a building that is fenced in and located behind his
house. This building was not named in the search warrant. He also claims that the items seized were not

evidence of a crime upon which the probable cause allegation was based. Instead, Logan asserts that the

underlying facts cover only allegations of stolen vehicles and parts, not records of purchases or all records.

Logan claims that this was a general search warrant for "documents relating to a chop shop" and is not

sufficiently stated with particularity to be upheld under Mississippi law. Logan alleges that the scope of the

warrant and the search was that of a general warrant which is prohibited under the federal and state

constitutions. Logan states that the police exceeded the scope of the search warrant when they seized

thousands of pages of his records and removed the documents from the premises to review for any

evidence of crimes. He claims there was no probable cause to search his home and that there was no

evidence that these documents were kept at his home or that they even existed. Logan asserts that the

search warrant did not indicate that a reasonable person would believe these items would be at his

residence. He further contends that this search warrant was tainted by the previous constitutional violations

in obtaining evidence in the previous searches.

¶23. The threshold question for this Court to determine is whether there was valid consent obtained from

the Logans prior to the first warrantless search on October 8, 1995. The testimony of the sheriff indicates

that there was no valid consent on the part of the Logans since he did not advise them of their right to refuse

consent as required under Pennick. Furthermore, the sheriff testified that he never advised the Logans of

their Miranda rights nor did he obtain a signed, written consent to search form until the day after the first

search.

¶24. During the second search, the police seized numerous vehicles and vehicle parts after they had

unlawfully searched the premises the day before. At that point, the police testified that they suspected

Logan, although they did not arrest him or advise him of his Miranda rights. After applying the law to the

facts of this case, we must conclude that the evidence seized on October 9, 1995, although executed with a

search warrant during the second search, was derivative of information obtained through the unlawful

search of Logan's residence the day before, and therefore, should have been excluded. None of the

doctrinal exceptions are applicable in this case. Therefore, the trial judge's failure to exclude this evidence

requires reversal.

¶25. Under Gates, there must be probable cause for a search warrant to be valid. The Fourth Amendment

as applied through Coolidge and Carney protects citizens against general warrants and other exploratory

searches such as the searches conducted herein. In the case sub judice, Logan claims that there was no

probable cause, that this was a was a general warrant, and that it did not properly describe the place to be

searched which was the shop located behind the house and that any evidence obtained should be

suppressed under the exclusionary rule. Logan further asserts that the shop behind his house is a totally selfsustaining building with a separate driveway, separate utilities, taxed separately for property taxes, and not

connected to his home in any meaningful way which made it outside the scope of the warrant.

¶26. Logan is correct in stating that this was a general search warrant for "documents relating to a chop

shop" and not sufficiently stated with particularity under Carney. Since the first search warrant was

conducted without consent in violation of Pennick it is invalid and all evidence obtained from that search is

inadmissible. The evidence obtained during the second and third searches is inadmissible under the

exclusionary rule and because of the prohibition against general search warrants. Therefore, this assignment

of error is well taken, and all of the evidence obtained during the three searches should be suppressed.
III. THE TRIAL JUDGE ALLOWED THE TESTIMONY OF THE STATE'S HANDWRITING

EXPERT WITHOUT PROPER NOTICE

¶27. The guidelines for resolving a discovery violation are set out in the concurring opinion by Justice

Robertson in the case of Box v. State, 437 So. 2d 19 (Miss. 1983). Justice Robertson suggested that, "In

cases where the state seeks to offer into evidence that which it ought to have disclosed pursuant to a

discovery request but didn't, it is first incumbent upon the defendant to make a timely objection." Id. at 23.

¶28. The second guideline suggested by Justice Robertson is that:

If, after examining the evidence involved or interviewing the would-be witness, the defendant is of the

opinion that he has been subjected to unfair surprise and that his defense will be prejudiced if the

evidence is offered without his having had the opportunity to investigate independently the credibility

of the evidence and possible responses thereto, it should then be incumbent upon him to request

expressly that the court grant a continuance. In most instances this will necessitate a declaration of a

mistrial.

Id. The final guideline is that if the State is of the opinion that for whatever reason it wants to use the witness

or the evidence in its case against the defendant, the order for a continuance must stand. Id. at 24.

¶29. The Mississippi Supreme Court has followed the Box test even though the applicable discovery rule

has changed to Uniform Rule of Circuit and County Court Rule 9.04(I). Lester v. State, 692 So. 2d 755,

786 (Miss. 1997) (overruled on other grounds by Manning v. State, 1999 WL 174246 (Miss. Mar. 31,

1999). In Lester, the Mississippi Supreme Court stated that:

URCCC 9.04(I) now applies to discovery violations. The rules require that the trial court grant the

defense reasonable time to examine the new evidence that the prosecution attempts to introduce at

trial without prior disclosure. If the defense still shows unfair surprise or prejudice and requests a

continuance or mistrial, the trial court must either exclude the evidence or grant a continuance.

¶30. In the case sub judice, the State disclosed an expert witness with his report two working days prior to

trial and five weeks after the deadline for the prosecution to submit their witnesses had passed. To properly

respond to testimony of the handwriting expert, the defense should have had the opportunity to have the

court continue the case so that they could have a defense expert review the handwriting examination of the

State's witness along with the original documents and exemplars. The court failed to grant this continuance

and allowed the State's handwriting expert to testify.

¶31. The parties agreed that the deadline for the State to submit all witnesses, evidence, statements and

summaries of witness testimony as required by Uniform Circuit and County Court Rule 9.04 was August

13, 1996. The State was ordered by the court to submit their discovery by this date. After the State notified

Logan of its expert handwriting expert, he filed his motion within two working days after receiving notice of

the new expert witness.

¶32. In the instant case, the prosecution had over seven months from the time they seized the evidence until

trial to obtain a handwriting analysis. However, the State waited until several weeks before the trial was
scheduled to begin to obtain a handwriting examination. Burkes testified that he completed his report on

September 9, 1996 and had discussed the results of this examination with Investigator Jim Smith before this

date. The State did not disclose this information or list this witness until September 20, 1996, after business

hours and two working days prior to trial. This insufficient notice, which also violated the discovery rules,

did not allow Logan enough time to have an expert review the report and examine the same original

documents and exemplars. Furthermore, these necessary documents were never presented to Logan at any

time. Therefore, this assignment of error is well taken.

IV. THE JURY WAS UNDULY PREJUDICED FROM THE TESTIMONY REFERENCING

STOLEN MOTORS FOUND ON LOGAN'S PROPERTY

¶33. The Mississippi Supreme Court has held that before a trial court can consider evidence of uncharged

crimes under Mississippi Rule of Evidence 404(b), the evidence must satisfy some relevant evidentiary

purpose "beyond simply showing that the defendant is the sort of fellow likely to commit the crime

charged." Watts v. State, 635 So. 2d 1364, 1368 (Miss. 1994) (quoting Jenkins v. State, 507 So. 2d 89,

92 (Miss. 1987)). The Watts court further stated that, "If and when evidence clears the hurdle of Rule

404(b), however, it must still clear the test of Rule 403." Id. In Watts, the court did not agree with the State

that the evidence in question was necessary to prove intent and ruled that evidence of this nature is not of

great probative value even though there may be an argument that it is in some way technically relevant. Id.

at 1368-69.

¶34. In the case of Darby v. State, 538 So. 2d 1168 (Miss. 1989), the Mississippi Supreme Court applied

the rationale of United States v. Beechum, 582 F.2d 898 (1978) in conducting a balancing analysis under

MRE 403. According to the court:

It must first be determined that the evidence possesses probative value that is not substantially

outweighed by its potential for undue prejudice, and must meet the other requirements of Rule 403.

The other requirements being that before an exception to the general rule excluding evidence of other

crimes from admission in criminal cases can be invoked, the trial court must be satisfied that 1) there is

plain, clear and convincing evidence of a similar offense, 2) the offense is not too remote in time, 3)

the element of the similar crime for which there is a recognized exception is a material issue in the

case, and 4) there is a substantial need for the probative value of the evidence.

Darby, 538 So. 2d at 1173. Under Newsom v. State, 629 So. 2d 611, 614 (Miss. 1993), the supreme

court held that specific instances of conduct in cases where character or the trait of character is "an essential

element of the charge, claim, or defense" are admissible whether on cross or direct examination.

¶35. In the case sub judice, the trial judge allowed the State to elicit testimony from several witnesses that

they found stolen motors on Logan's property. Logan asserts that these stolen motors were the subject of a

separate indictment against him. Second, Logan claims that the only evidence supporting the supposition

that these motors were stolen was hearsay evidence. He also claims that this testimony was not admissible

under MRE 404(b) and that the probative value did not substantially outweigh the prejudicial effect.

¶36. During the direct examination of Virgil Luke, the State asked him whether any stolen property was

found on Logan's property when it was searched. Logan objected, but the State argued that the character

of Logan was in issue, so specific instances of conduct were relevant under MRE 404(b) and 405. Logan

stated that this evidence was the subject of a separate indictment against him and that character was not in
issue since it was not an element of the indicted charges. The trial court ruled that this evidence was

admissible as relevant evidence and the probative value outweighed the prejudicial effect. Logan was

correct in asserting that character was not an element of the indicted charges, and therefore, specific

instances of conduct were not relevant or admissible under MRE 404(b) and 405. This assignment of error

is also well taken and these specific instances of conduct should not have been permitted where Logan's

character was not an issue.

V. THE TRIAL JUDGE IMPROPERLY ALLOWED EVIDENCE OF UNCHARGED FORGED

RECEIPTS IN VIOLATION OF MRE 404(B) AND 403

¶37. As the Mississippi Supreme Court stated in Jenkins v. State, 507 So. 2d 89, 93 (Miss. 1987):

To be sure, evidence admissible under Rule 404(b) is also subject to the prejudice test of Rule 403;

that is, even though the Circuit Court considered the evidence at issue admissible under 404(b), it was

still required by Rule 403 to consider whether its probative value on the issues of motive, opportunity

and intent was substantially outweighed by the danger of unfair prejudice. In this sense Rule 403 is an

ultimate filter through which all otherwise admissible evidence must pass.

Id. The Mississippi Supreme Court has held that evidence of other uncharged crimes is so prejudicial that it

should not be admitted when compared to the probative value. Usry v. State, 498 So. 2d 373 (Miss.

1986); Smith v. State, 656 So. 2d 95, 100 (Miss. 1995)(holding in drug possession case that evidence of

past drug sales alone is "an insufficient evidentiary basis for the conclusion that present possession is with the

intent to distribute").

¶38. In the instant case, the trial judge allowed the introduction into evidence of extensive records of

receipts for repaired vehicles that the police seized from Logan's house. Logan objected to this introduction

because the court stated that the uncharged forgeries were admissible since he was charged with forgery.

These documents were admitted through the testimony of Investigator Jeff Roberts of the Mississippi

Highway Patrol who testified that he seized all of these receipts from Logan's residence. The State called

Jay Stoll, Robert Hiatt, and Danny Grabert, local body shop owners, who testified that the receipt records

with their businesses' name on them were not from their business nor were the signatures theirs. Later in the

trial, the court allowed testimony that the Mississippi Highway Patrol seized thirty-one vehicles in their

investigation into Logan. Even if the evidence of uncharged crimes presented here would have been

admissible under 403, the danger of unfair prejudice of the evidence outweighed any probative value.

Therefore, this assignment of error is well taken and this evidence, since it is so highly prejudicial, should not

have been allowed into evidence during Logan's trial.

VI. THE COURT ALLOWED INSURANCE INVESTIGATIVE FILES INTO EVIDENCE IN

VIOLATION OF THE MISSISSIPPI RULES OF EVIDENCE

¶39. In the case sub judice, Logan contends that (1) the State did not have the custodian or other qualified

witness to introduce the insurance files from the different insurance companies and (2) the State denied

Logan his Sixth Amendment right to confrontation by not calling each insurance adjuster who investigated

the insurance claim on each wrecked vehicle.

¶40. Rule 803(6) of the Mississippi Rules of Evidence provides:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from

information transmitted by, a person with knowledge, if kept in the course of a regularly conducted

business activity, and if it was the regular practice of that business activity to make the memorandum,

report, record, or data compilation, all as shown by the testimony of the custodian or other qualified

witness, unless the source of the information or the method or circumstances or preparation indicate

lack of trustworthiness.

¶41. Rule 901 of the Mississippi Rules of Evidence provides:

(a) General Provision. The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what it

proponents claims.

(b) Illustrations. By way of illustration only, not by way of limitation, the following are examples of

authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

The Mississippi Supreme Court explained that the witness in Wells was qualified to authenticate the

business bank records because "he prepared the summary with the help of his bookkeeper, and his

testimony reveals that he was a witness with knowledge that the summary was what it claimed to be." Wells

v. State, 604 So. 2d 271, 275 (Miss. 1992).

¶42. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted." M.R.E. 801(c). "Hearsay evidence is

inadmissible unless it falls within one of the known exceptions." Clark v. State, 693 So. 2d 927, 931

(Miss. 1997). The Mississippi Supreme Court held that "only when hearsay evidence qualifies under a

'firmly rooted hearsay exception' can it be admitted over a right to confrontation objection by the

defendant." Gossett v. State, 660 So. 2d 1285, 1296 (Miss. 1995). A criminal defendant is guaranteed the

right to confront the witnesses against him under the Sixth Amendment to the United States Constitution.

U.S.C.A. Const. Amend. VI.

¶43. In the case sub judice, the State used Investigator Luke to testify from an insurance investigative

report from a State Farm Insurance adjuster in Gretna, Louisiana. Logan objected to this testimony based

on hearsay without an exception. However, the trial judge allowed the testimony despite this objection.

Luke testified that he obtained the insurance investigative file by making a request to State Farm to get their

hard copy documents. The insurance investigative file also contained photographs of various automobiles

that were wrecked and sold for salvage, an accident report, and the report of the insurance adjuster who

evaluated the damage. Luke further testified by reading from the reports and describing what was depicted

in the photographs. Logan objected to this testimony directly from the insurance adjuster's file as being

hearsay and further that they were not properly authenticated because there was no representative from

State Farm to authenticate the report. Luke continued to read from the various reports in the insurance files

after the court overruled Logan's objections.

¶44. The State was allowed to introduce a similar report from Mississippi Farm Bureau despite Logan's

objection as to hearsay and that the chain of custody of these insurance files was not established.

Nonetheless, the trial judge allowed Luke to testify from the documents about damages to the various
vehicles as compared to what was reported to the Mississippi Highway Patrol and the State Tax

Commission when Logan had the vehicles retitled.

¶45. Here, Luke was not involved in preparing the insurance files, did not work directly for each insurance

company, nor did he even know the adjusters. Luke was called to testify as an expert witness in the field of

vehicle identification. He was employed by an organization called the National Insurance Crime Bureau, a

nonprofit corporation funded by the insurance industry with a purpose to assist law enforcement officers.

Since Luke was not qualified to introduce the insurance files from the different insurance companies, the

documents were not properly authenticated, and Logan was denied his right to confront the insurance

adjuster who investigated and prepared the files on each wrecked vehicle. Therefore, Logan's right to

confront witnesses against him was violated and this assignment of error is also well taken.

VII. THE TRIAL JUDGE IMPROPERLY ALLOWED THE STATE'S EXPERT ON

IDENTIFYING STOLEN VEHICLES TO TESTIFY OUTSIDE HIS SCOPE OF EXPERTISE

¶46. The Mississippi Supreme Court stated the limits of testimony by an expert in Ludlow Corp. v.

Arkwright-Boston Mfrs. Ins. Co., 317 So. 2d 47, 50 (Miss. 1975):

An expert must have acquired special knowledge of the subject matter in question by study of

recognized authorities 'or by practical experience' enabling him to give the jury assistance and

guidance in solving some problem which jurors are not able to solve because of their own inadequate

knowledge.

(citing Capital Transport Co. v. Segrest, 254 Miss 168, 181 So. 2d 111 (1965)).

¶47. At trial, the judge allowed Luke to testify about the damages to the automobiles and the repairs even

though Luke had not been properly qualified as an expert on car repairs. The State also allowed Luke to

testify that sheet metal in two of the State's exhibits had not been repaired in anyway because it was

encompassed in his expertise as a vehicle identification specialist. At another point, Luke was allowed to

testify as an expert in metallurgy by discussing the metal type of the rivets and whether they were factory

originals or homemade. The judge overruled Logan's objection to this line of questioning by stating that

Luke had satisfactorily explained what was done to the rivets to make them appear as originals. Luke

further testified as to whether the vehicles were repairable. Since the trial court allowed Luke to testify

outside his area of expertise, this issue is also well taken.

VIII. THE TRIAL JUDGE DID NOT ERR IN FAILING TO DEMUR TO THE INDICTMENT

BECAUSE THERE WAS NO DUPLICITY

¶48. Mississippi Code Annotated Section 99-7-2 (Rev. 1994) states in pertinent part that:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same

indictment with a separate count for each offense if: (a) the offenses are based on the same act or

transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together

or constituting parts of a common scheme or plan.

(2) Where two(2) or more offenses are properly charged in separate counts of a single indictment, all

such charges may be tried in a single proceeding.
(3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an

indictment, the court shall impose separate sentences for each such conviction.

(4) The jury or the court, in cases in which the jury is waived, shall return a separate verdict for each

count of an indictment drawn under subsection (1) of this section.

¶49. The Mississippi Supreme Court has long held that it is improper to charge the commission of two

different crimes in a single count. Hitt v. State, 217 Miss. 61, 67, 63 So. 2d 665,668 (1953). The Hitt

Court defined duplicity, stating that, "Duplicity in criminal pleading is the joinder of two or more distinct and

separate offenses in the same count of an indictment or information." Id. The court reversed the conviction

stating that these separate offenses could not be prosecuted as one crime in one count. Id. at 68.

¶50. Several recognized exceptions exist to this rule including such offenses as assault and battery and

burglary and larceny. Wolf v. State, 281 So. 2d 445, 446 (1973). The Wolf Court further explained that:

The rationale of the exceptions seems to be that a statement in an indictment of the motive or purpose

which promoted the principal criminal action, although it may in itself, if taken alone, charge an

offense, is not objectionable, if it is incidental and relates to a description of the principal offense, is

not inconsistent with it, and is part of a single transaction.

Id.

¶51. Logan claims that counts one through seven of the indictment each charge him with presenting false

documents and statements to the Mississippi Department of Public Safety in the titling of motor vehicles in

violation of Mississippi Code Annotated Section 97-7-10. Logan also states that counts one through seven

of the indictment charge him with altering the public vehicle identification numbers on each of the vehicles

which is a violation of Mississippi Code Annotated Section 63-25-5 although not specifically addressed by

statute number.

¶52. Mississippi Code Section 97-7-10 (Rev.1994) states in part that:

(1) Whoever, with intent to defraud the state or any department, agency, office, board, commission,

county, municipality or other subdivision of state or local government, knowingly and willfully falsifies,

conceals or covers up by trick, scheme or device a material fact, or makes any false, fictitious or

fraudulent statements or representations, or makes or uses any false writing or document knowing the

same to contain any false, fictitious or fraudulent statement or entry, shall . . . be punished . . . .

Mississippi Code Section 63-25-5 (Rev. 1996) reads in pertinent part that:

(2) Any person who knowingly alters, counterfeits, defaces, destroys, disguises, falsifies, forges,

obliterates or knowingly removes a vehicle identification number with the intent to misrepresent the

identity or prevent the identification of a motor vehicle or motor vehicle part shall be guilty of a felony .

. . upon conviction . . . .

A separate charge may be described in an indictment, although it was just included as a necessary element

of proof to specifically charge the greater offense. Harrigill v. State, 381 So. 2d 619, 621 (Miss. 1980).

¶53. Logan filed a motion to "demur to the indictment" which is now referred to as a motion to quash the
indictment after the Mississippi Rules of Evidence were promulgated in 1985. This motion to quash alleged

that the indictment was duplicitous because two distinct and separate offenses were joined in the same

count for each of counts one through seven. The trial judge denied the motion after a hearing and stated that

this indictment met the requirements of Section 99-7-2.(1) Here, the charge of altering vehicle identification

numbers was described in the indictment but not specifically charged as a crime against Logan. Instead,

some of the elements of that charge make up the greater offense of presenting false documents and

statements to the Mississippi Department of Public Safety in the titling of motor vehicles in violation of

Mississippi Code Annotated Section 97-7-10 (Rev. 1994). Therefore, the trial judge was correct that the

indictment was not duplicitous and there was no error with respect to this issue.

IX. THE TRIAL JUDGE DID NOT ERR IN DISMISSING THE COUNTS AS

MUTIPLICIOUS

¶54. Blockburger v. United States, 284 U.S. 299, 303 (1932) states that "[w]here the same act or

transaction constitutes a violation of the two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one is whether each provision requires proof of an additional fact

which the other does not." The case of Shook v. State, 552 So. 2d 841, 848-49 (Miss. 1989) outlines the

procedure for analysis in Mississippi under the parameters of Blockburger. In Shook, the court looked at

the multiplicity claim of shooting into a dwelling and aggravated assault in a drive by shooting. The

Mississippi Supreme Court held that "shooting into a dwelling house is not required to establish an

aggravated assault, and neither injury nor attempt to injure is required to prove shooting into a dwelling

house." Here, we must determine whether, under these facts, the crimes of defrauding the State government

and uttering forgery constitute the same offense. Under Blockburger, the objective elements of each

offense must be examined. Id.

¶55. We have examined the fraudulent statement statute, Miss. Code Ann. § 97-7-10(2) (Rev. 1994), and

the uttering statute, Miss. Code Ann. § 97-21-59, (Rev. 1994).(2) There is a distinction between these two

statutes. On the uttering charges, it is required that Logan pass an instrument knowing it to be forged,

altered, or counterfeited. The charges and proof were that the receipts were forgeries and passed knowing

them to be forgeries. The fraudulent statement statute required different proof in that Logan made different

and or additional false statements or representations in the applications for inspection claiming that the

vehicle identification numbers were not altered.

¶56. By analogy to the Shook case, uttering forgery is not required as proof of defrauding State government

and neither is passing the forgery to the government an element of uttering. The fact that two crimes

involved the same car is not the determining factor. It was Logan's acts and statements that garnered him

additional charges. Moreover, as the trial court noted, Mississippi Code Annotated § 97-7-10(2) clearly

shows the intent of the legislature to create and punish an additional crime when one commits fraudulent acts

against the State. Therefore, there is no merit in the argument that the counts should have been dismissed as

duplicitous.

X. THE IMPROPER COMMENTS MADE BY THE STATE IN CLOSING ARGUMENTS

UNDULY PREJUDICED THE JURY

¶57. The Mississippi Supreme Court has held for many years that it is reversible error for the State to

comment on the failure of an accused to testify in his own behalf. Lambert v. State, 199 Miss. 790, 797,

25 So. 2d 477, 479 (1946). In Lambert, the district attorney, in his closing argument to the jury, said:
"Where is the testimony that he did not do it? . . . There's no denial."Lambert, 25 So. 2d 479. The defense

counsel objected and moved for a mistrial which the trial court denied. Id. The supreme court analyzed the

history of the Mississippi cases where it reversed trial courts for remarks made by the prosecution

referencing failure of the accused to testify. Id. For example, the Lambert court considered the case of

Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895), where the prosecution stated, "[the defendant] has

not denied it." The defense in Reddick objected to this statement. Thereafter, the prosecutor attempted to

cure his remarks and defended his statement by arguing "that it was not his intention to refer to the fact that

the defendant had not testified." Id. at 490. The Mississippi Supreme Court stated that the intention of the

attorney is immaterial--that the test is whether the language can reasonably be construed to be a comment

upon the failure of defendant to take the stand." Lambert, 199 Miss. at 793, 25 So. 2d at 478. In Hoff v.

State, 83 Miss. 488, 35 So. 950, 950-51 (1904), the Mississippi Supreme Court reversed a conviction

where the prosecutor held a letter up to the jury in his closing argument and stated, "Nobody on earth

denies that he wrote it. . . . No living soul has denied that the defendant seduced this little girl."

¶58. Over the years, many cases have explained the Lambert analysis as requiring each case to be

considered individually where there is a question as to the State's comments on the defendant's failure to

testify. Conway v. State, 397 So. 2d 1095, 1100 (Miss. 1980). The issue in Conway dealt with the

statement by the prosecutor that "the evidence was uncontradicted." Id. at 1099. In its analysis, the supreme

court looked to whether the comment was a general comment or whether the comment referred to specific

acts alleged to have been done by the defendant. Id. In Conway, there was no transcript of the closing

arguments of counsel; therefore, the court declined to determine the context in which the alleged statement

was made and instead, considered the comment as a general statement with regard to the evidence as a

whole. Id. at 1100.

¶59. The Mississippi Supreme Court has stated that "fundamental fairness requires that a defendant should

not be subjected to testimony and tactics which are highly prejudicial and inflammatory." Acevedo v. State,

467 So. 2d 220, 226 (Miss. 1985). In the case of Clemons v. State, 320 So. 2d 368, 371 (Miss. 1975)

the court stated that:

The purpose of the closing argument before a jury is to enlighten the jury. It is the duty of the district

attorney to fairly sum up and point out the points presented by the state on which the prosecution

contends a verdict of guilty is proper. There are, however, certain well established limits beyond

which counsel is forbidden to go; he must confine himself to the facts introduced in evidence and to

the fair and reasonable deductions and conclusions to be drawn therefrom.

¶60. In this case, the assistant district attorney specifically argued that Logan filed homemade rivets in an

attempt to make them look like factory rivets. In making this argument, he states, "There's no evidence to

the contrary." This statement is a direct comment on Logan's failure to testify whether it was intended to be

one or not under Lambert. The State also discussed crimes which were not charged or in issue, and the

trial judge allowed the testimony. Later the district attorney tried to inflame the jury by telling them that if

they "violate [their] oath, [they] will have defrauded the State of Mississippi."

¶61. Here, the district attorney pointed out Logan's failure to testify, argued about charges and crimes not

before the jury, and improperly influenced the jury's passions. Instead, he should have confined himself to

the facts in evidence and relied on the jury's fair and reasonable decision without inflammatory language.

The only recourse at this point in the trial would have been for the trial judge to declare a mistrial. Since he
did not, we reverse on this issue and the others stated above for a new trial consistent with this opinion.

¶62. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS REVERSED

AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS

OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

KING, P.J., BRIDGES, COLEMAN, LEE, AND THOMAS, JJ., CONCUR.

McMILLIN, C.J., CONCURRING IN PART AND DISSENTING IN PART BY SEPARATE

WRITTEN OPINION, JOINED BY SOUTHWICK, P.J., IRVING AND PAYNE, JJ.

McMILLIN, C.J., CONCURRING IN PART, DISSENTING IN PART:

¶63. I would agree with the majority that this conviction must be reversed based on several of the errors

that occurred in the first trial. However, I would respectfully disagree that the trial court committed

reversible error in failing to suppress evidence admitted at trial that had been obtained pursuant to several

searches conducted by investigating officers.

¶64. Logan claims that the first 'search,' in which investigating officers only conducted a visual inspection of

Logan's shop and did not seize any evidence was an unconstitutional search in that it was not undertaken

with the informed consent of the property owner and was not authorized by a valid search warrant. Logan

urges that his wife's decision to permit the inspection was not voluntary since she was both uninformed as to

her right to refuse and intimidated by the presence of a large number of law enforcement officials who had

arrived unannounced and en masse. There was a lengthy inquiry into the circumstances that led Mrs. Logan

to permit the officers to walk through the shop, and there is no contention that she lacked authority to

consent to the inspection. The trial court did not find that Mrs. Logan was so intimidated by the presence of

these officers that she felt coerced or forced to permit the inspection against her will. In ruling on such

subjective matters, the trial judge is given wide discretion. Luton v. State, 287 So. 2d 269, 272 (Miss.

1973). He observes the witnesses first hand, hears the evidence and then determines whether the consent

was, in fact, voluntary or not. Id. When his ruling is contested on appeal, an appellate court may set aside

that ruling only if the court is satisfied that the trial court was manifestly wrong in so deciding. Smith v.

State, 465 So. 2d 999, 1002 (Miss. 1985). In my view, there simply is no legitimate basis to argue that the

trial court was so patently incorrect in its findings that this Court ought to interfere.

¶65. One of Logan's arguments rests on the proposition that Mrs. Logan was not affirmatively informed by

the officers of her right to decline the inspection of the premises. When the issue is the voluntariness of a

consent to search, there is no absolute requirement that the person receive a Miranda-like notification that

the person can refuse the officer's request, even though the Mississippi Supreme Court has suggested that it

will, using state constitutional concerns, apply a stricter test of voluntariness than the United States Supreme

Court does under Fourth Amendment jurisprudence. Penick v. State, 440 So. 2d 547 (Miss. 1983).

According to the Penick decision, there must be a dual determination of consent to search accompanied by

a showing that the consent was knowledgeable. Id. at 550. This apparently indicates that the State must

show that the consenting party was actually aware of that party's right not to consent to the search. Id.

Though evidence that the party was, in fact, informed of that right by the requesting officer would be one

means of demonstrating the requisite knowledge, there is no Mississippi authority suggesting that this is the

only way to demonstrate knowledge.
¶66. In this case, after Mrs. Logan was requested to consent to an inspection of her husband's shop, she

declined to do so unless the officers agreed to remove a substantial number of the police cars parked at the

residence. The very act of attaching conditions to the consent to search and demanding compliance with the

conditions before the search began appears a strong indicator that Mrs. Logan understood that she was not

obligated to permit the officers to inspect the premises.

¶67. Logan's objection to the second search, which was also a consensual one, is not entirely clear. Logan

himself consented to this second search and, in fact, signed a written consent form in advance of the search.

Again, the issue of whether the consent was obtained through threats or coercion such that it was not, in

truth, voluntary is one committed primarily to the broad discretion of the trial court. I can find no abuse of

that discretion in the court's decision not to suppress evidence obtained in that search.

¶68. One of Logan's arguments against the third search, conducted under a search warrant, appears to be

that information improperly gleaned from the earlier searches of Logan's shop was used to establish

probable cause for the warrant. Logan's argument necessarily rests on the foundation that the earlier

searches were unconstitutional invasions of federal and state constitutional rights against unreasonable

searches and seizures. For the reasons I have already discussed I would reject the charge of im propriety in

the earlier searches. Since this third search was conducted pursuant to a warrant obtained on probable

cause, I see no arguable basis to exclude any evidence seized during that search.

¶69. The third search was also attacked as having been conducted under an invalid warrant because its

scope was too broad to meet constitutional strictures. The Fourth Amendment states that a warrant must

describe "the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV

(emphasis supplied). The warrant permitted the search and seizure of documents relating to Logan's vehicle

repair and rebuilding activities conducted on his premises. Logan contends that this description of items to

be searched for in the warrant was too indefinite and did not accurately describe the documents and

records actually seized in the search or, in the alternative, described documents that could not possibly have

been evidence of the kind of crime then under investigation, i.e., the operation of a "chop shop." His

argument depends, in part, on the assertion that the warrant included invoices for purchases of automobile

parts and a "chop shop" operator, in the course of operating that kind of illegal activity, would not

reasonably be expected to purchase parts.

¶70. On this third search, the officers seized a number of files containing invoices for parts purchases and

related expenses regarding the rebuilding of wrecked vehicles. Some of these documents later proved to be

forged and were used in this criminal prosecution. I am of the opinion that, so long as Logan was suspected

of operating a "chop shop" where stolen vehicles were brought in and either disassembled to be sold for

their constituent parts or disguised so that they would not be readily identifiable, any documents relating to

vehicles rebuilt or repaired by Logan at his shop facility would have potential relevance in a criminal

investigation. It was not necessary for the officers to know, in advance, what records, invoices, or other

documents Logan would actually have on the premises in order to obtain a warrant to search for such

evidence so long as they had a reasonable basis to conclude that some such documentary evidence might

be discovered on the premises. In that circumstance, the officers' inability to describe with more certainty

the documents that would be sought does not appear fatal to the warrant.
¶71. I would reverse and remand for a new trial because of the cumulative effect of the other prejudicial

occurrences during the trial discussed in the majority; however, in the event of a subsequent trial after our

reversal, I would not deprive the State of the evidence gathered in its searches of Logan's premises.

SOUTHWICK, P.J., AND IRVING AND PAYNE, JJ., JOIN THIS SEPARATE WRITTEN

OPINION.

1. Section 99-7-2 Miss. Code Ann. (Rev. 1994) states in pertinent part that:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same

indictment with a separate count for each offense if: (a) the offenses are based on two (2) or more

acts or transactions connected together or constituting parts of a common scheme or plan.

(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all

such charges may be tried in a single proceeding.

(3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an

indictment, the court shall impose separate sentences for each such conviction.

2. Section 97-7-10 states in pertinent part that:

(1) Whoever, with intent to defraud the state or any department, agency, office, board commission,

county, municipality or other subdivision of state or local government, knowingly and willfully falsifies,

conceals or covers up by trick, scheme or device a material fact, or makes any false, fictitious or

fraudulent statements or representations, or makes or uses any statement or entry, shall, upon

conviction, be punished . . . .

Section 97-21-59 states that:

Every person who shall be convicted of having uttered or published as true, and with intent to

defraud, any forged, altered, or counterfeit instrument, or any counterfeit gold or silver coin, the

altering or counterfeiting of which is declared by the provisions of this chapter to be an offense,

knowing such instrument or coin to be forged, altered, or counterfeited, shall suffer the punishment

herein provided for forgery.