IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 2000-KP-01038-COA

STEVEN RAY A/K/A STEVEN J. RAY APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF TRIAL COURT

JUDGMENT:

06/14/2000

TRIAL JUDGE: HON. L. BRELAND HILBURN

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DAN DUGGAN, JR.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEAN SMITH VAUGHAN

DISTRICT ATTORNEY: ED PETERS

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: COUNT I- MANUFACTURE METHAMPHETAMINE:

SENTENCED TO 20 YEARS; SHALL RUN

CONSECUTIVELY WITH COUNTS II AND III; COUNT

II-POSSESSION METHAMPHETAMINE: SENTENCED

TO 5 YEARS; COUNT III- POSSESSION OF COCAINE:

SENTENCED TO 5 YEARS; SHALL RUN

CONSECUTIVELY WITH COUNTS I AND II

DISPOSITION: AFFIRMED - 05/21/2002

MOTION FOR REHEARING FILED: 6/7/2002; denied 8/6/2002

CERTIORARI FILED: 9/6/2002; denied 10/17/2002

MANDATE ISSUED:

BEFORE McMILLIN, C.J., BRIDGES, AND IRVING, JJ.

McMILLIN, C.J., FOR THE COURT:

¶1. Steven Ray has appealed his conviction on three counts of drug-related offenses. In the initial brief filed

with this Court, Ray, through counsel, raises two issues. Ray later sought and was granted permission to

discharge his attorney and proceed with this appeal pro se. He thereupon filed a supplemental brief raising

two additional issues. We find no merit in any of the issues and, for that reason, affirm the convictions.
I.

Facts

¶2. Ray was under police surveillance as a suspect in drug-related activities. Undercover officers following

Ray observed him driving erratically and, once he stopped, proceeded to approach Ray's pickup truck to

investigate further. Officer Richard Nations testified that, as he walked to the truck, he observed certain

items, including surgical tubing of the type known to be used in the illegal manufacture of methamphetamine,

in plain view in the back of the truck. Officer Nations also said that he observed Ray sitting in the driver's

seat of the truck with a hypodermic syringe in his hand which he attempted to conceal as the officer

approached. According to Officer Nations, the syringe appeared to have a brown residue that was

consistent with the presence of methamphetamine.

¶3. On those facts, Ray was placed under arrest for possession of drug paraphernalia. The truck was, at the

time, parked on a public street and the officers concluded that it would have to be impounded. As a part of

that process, the officers began an inventory search of the truck. That search produced a quantity of

substance later proven to be cocaine and additional equipment of the type typically used to manufacture

methamphetamine.

¶4. On the strength of these discoveries, the officers obtained a search warrant for Ray's home and that

search produced additional evidence implicating Ray in the manufacture of illegal narcotics. He was indicted

on a charge of manufacture of methamphetamine, one of possession of methamphetamine, and one count of

possession of cocaine. The jury found Ray guilty and this appeal followed, in which Ray raises the following

issues: (1) the trial court erred in not suppressing all evidence found in Ray's truck since it was the product

of an unreasonable search prohibited by the United States Constitution; (2) the trial court erred in allowing

the jury to hear unfairly prejudicial evidence concerning Ray's brother's involvement in drug activity; (3)

there was no probable cause for a search warrant to issue for Ray's residence; and (4) the trial court erred

in granting a circumstantial evidence instruction.

¶5. Ray also raises the issue of denial of a speedy trial in his supplemental brief, though for reasons not

entirely clear, he includes that as a part of Issue IV concerning the circumstantial evidence instruction. We

will treat the speedy trial claim as a separate issue.

II.

Unreasonable Search

¶6. The Fourth Amendment to the United States Constitution protects an individual from unreasonable

searches. That protection is normally afforded by the requirement that, prior to undertaking such a search,

the investigating officers go before a disinterested magistrate and obtain a search warrant upon a showing of

probable cause for the warrant to issue. Petti v. State, 666 So. 2d 754, 757 (Miss. 1995).

¶7. However, in recognition that there are special circumstances in which obtaining a warrant is impractical

or likely to substantially hinder the efficient operation of the investigatory efforts of law enforcement officials,

the law permits warrantless searches in specific situations. Blissett v. State, 754 So. 2d 1242, 1245 (¶15)

(Miss. 2000). One of those situations is where the occupant of a motor vehicle is being arrested and,

because of the location of the vehicle, it appears necessary to impound the vehicle to protect the vehicle and

its contents. Franklin v. State, 587 So. 2d 905, 907 (Miss. 1991). In that specific instance, the United
States Supreme Court has indicated that a search of the vehicle is reasonable for the purpose of itemizing

the contents in order to protect the impounding officers from subsequent accusations that certain contents

are unaccounted for. South Dakota v. Opperman, 428 U.S. 364, 367 (1976).

¶8. In this case, there was evidence that the officer observed Ray in possession of a hypodermic syringe.

Rather than attempting to offer an explanation for this rather unusual circumstance, Ray was further seen

engaged in an apparent attempt to conceal the syringe as the officer approached. We conclude that these

facts constituted probable cause to arrest Ray for possession of drug paraphernalia. Much of Ray's

argument consists in contesting the point of whether mere possession of a syringe would be sufficient to

convict of the crime. Possession of drug paraphernalia is, to some extent, an unusual crime due to the fact

that it criminalizes the possession of certain materials that, in and of themselves, may be innocent in

character and widely available for legitimate purchase. It is the combination of the possession of the article,

its possible use in connection with illicit drug activity, and the dubious circumstances in which the defendant

is found in possession of the article that combine to give rise to criminal sanctions.

¶9. These are matters that, at a trial of the charges, may be explored in some depth in order for the jury to

reach an informed conclusion as to whether the requisite combination of factors has been proven beyond a

reasonable doubt. However, the determination of whether probable cause to arrest for that same crime

exists, a decision that in circumstances such as appear in this case must be made in rapid order and based

on sketchy evidence, is a different matter. Had Ray not attempted to conceal the syringe or had he

promptly offered a plausible explanation for possessing such an item, then different considerations raised by

those facts might weigh against the existence of probable cause for the officer to proceed further. That

simply is not the circumstance that we face. Rather, we are satisfied that the officers did have probable

cause to arrest Ray for possession of drug-related paraphernalia.

¶10. Once the decision to arrest was made, the officers were necessarily faced with the matter of Ray's

vehicle. Because it was on a public street, away from Ray's residence, and because there was no other

person to whom the possession of the vehicle could be entrusted, the officers were acting within their

authority to impound the vehicle and, as a part of that process, to conduct an inventory search of the

vehicle's contents. Id. at 371. Any contraband discovered as a part of that constitutionally-sanctioned

search would subsequently be admissible in any court proceeding where proof of its existence was a

legitimate issue for determination. The trial court did not err in failing to exclude any evidence obtained in the

search of Ray's vehicle.

III.

Prejudicial Effect of Evidence Concerning Ray's Brother

¶11. The State introduced evidence that, shortly after Ray's arrest and while investigating officers were

attempting to obtain a search warrant for Ray's residence, they placed the residence under surveillance. The

officer conducting the surveillance testified to seeing Ray's brother hurriedly depart the house carrying a blue

cooler. The officer followed the vehicle and observed the brother throw a number of articles out onto the

street and the adjoining yards. Much of that material was retrieved and, upon being identified as items useful

in the manufacture of methamphetamine, was introduced into evidence over Ray's objection that it was not

relevant.

¶12. Now, on appeal, Ray argues that this was error because there was no showing of Ray's knowledge of,
or participation in, his brother's activities.

¶13. The trial court enjoys substantial discretion in ruling on the admissibility of evidence at trial. McIlwain

v. State, 700 So. 2d 586, 590 (Miss. 1997). Even if erroneous rulings are made, they will not serve as the

basis for a new trial unless they appear to have affected a "substantial right of the [complaining] party."

M.R.E. 103(a); Hoover v. State, 552 So. 2d 834, 840 (Miss. 1989).

¶14. The evidence showed that Ray and his brother shared the same house. At the time the brother was

seen hastily departing the house with items that he shortly thereafter threw from a moving vehicle, the

officers were seeking to obtain a search warrant to search those premises. That effort was successful and

the officers did, in fact, conduct a search of the premises and numerous incriminating items were seized and

subsequently introduced into evidence at trial.

¶15. On these facts, the jury could properly conclude that, but for the brother's flight and failed attempt to

dispose of incriminating evidence, that same evidence would have been discovered in the course of the

search of the residence. Its admissibility, in that circumstance, would seem to be governed by the same

considerations that control the admissibility of items actually recovered from the house.

¶16. The only possible prejudice to Ray is the fact that the jury was able to hear evidence of his brother's

activities that would indicate his own complicity in Ray's illegal activities. He argues that the probative value

of the evidence in this circumstance is substantially outweighed by the prejudice arising from injecting the

brother's suspicious actions into the trial. M.R.E. 403. Because we find the evidence admissible to the same

extent as was evidence actually seized from the house, we think it was appropriate - and even necessary -

for the State to show the circumstances under which the evidence was obtained so that the jury could

understand that this evidence was, in all likelihood, kept in the house and, thus, subject to Ray's constructive

possession. Inevitably, this proof, necessary to show the probative value of the evidence, put before the

jury the suspicious conduct of Ray's brother, which we will concede had the potential to be prejudicial to

Ray, or, at the least, serve to confuse the jury - both of which concerns are potentially dealt within Rule

403. Nevertheless, we think that the probative value of the underlying physical evidence was such that it

was not outweighed by the potential prejudice or confusion arising out of informing the jury as too exactly

how the evidence was obtained. There was, therefore, no error in admitting it. We observe that evidence

admissible for a limited purpose may properly be the subject of an instruction to the jury informing it of the

restricted use it may properly make of the evidence. M.R.E. 105; Smith v. State, 656 So. 2d 95, 99-100

(Miss. 1995). The trial court specifically mentioned the possibility of such a limiting objection when ruling on

defense counsel's objection, and, in fact, such a limiting instruction was given. The jury is presumed to

follow the instructions given it. Ragin v. State, 724 So. 2d 901, 904 (¶13) (Miss. 1998). There was no

reversible error in the handling of this evidence.

IV.

Probable Cause of Search Warrant

¶17. Ray contends in his supplemental brief filed pro se that there was no probable cause for issuance of a

search warrant for his residence. The strength of his argument relies entirely on the contention that there was

no probable cause to arrest him and, as a part of the arrest, obtain evidence of his criminal activity from his

vehicle, since it was the discovery of this evidence that provided ammunition to seek the search warrant.
¶18. We have already determined, in the discussion of Issue II, that the search of Ray's vehicle and the

seizure of contraband discovered in that search was constitutionally permissible. There can be no legitimate

dispute that this evidence, directly implicating Ray in both the possession and manufacture of illegal narcotic

substances, provided ample probable cause for the issuance of a search warrant for his residence.

V.

Circumstantial Evidence Instruction

¶19. The Court, in instructing the jury on the elements of manufacture of illicit drugs, issued the following

instruction now the subject of Ray's complaint:

The court instructs the jury that if you believe from all of the evidence, beyond a reasonable doubt and

to the exclusion of every reasonable hypothesis consistent with innocence, that the defendant, Steven

J. Ray, did, on or about February 25, 1999, in the First Judicial District of Hinds County, Mississippi,

wilfully, unlawfully, knowingly and feloniously manufacture methamphetamine, then and in that event,

you must find the defendant Steven J. Ray, guilty as charged as to Count 1.

Should the State fail to prove any of the above elements, you should find the defendant not guilty as to

Count 1.

¶20. Ray, in the pro se portion of this appeal, asserts that this instruction was confusing and vague. No

objection to the instruction was interposed at trial. In the interest of judicial economy, the law requires such

objections to be raised in a timely manner that would permit the trial court, were it to conclude the

objection had merit, to remedy the situation before the jury was actually instructed. Embodied in that

concept is the notion that such objections, even if meritorious, may not be raised for the first time at the

appellate level. Douglas v. Blackmon, 759 So. 2d 1217, 1220 (¶ 9) (Miss. 2000). We find this issue

procedurally barred from consideration on this basis.

¶21. Additionally, we observe that Ray's pro se argument in support of this issue is, in fact, nothing more

than an attack on the sufficiency of the State's evidence in which he contends that the proof regarding his

involvement in manufacture did not rule out what he contends is an equally reasonable alternate

interpretation of the evidence, which is that he had no involvement in the activity. Issues not properly briefed

and supported by logical argument and, where appropriate, citation to relevant authority will not normally

be considered. Hoops v. State, 681 So. 2d 521, 535 (Miss. 1996).

¶22. Finding either of these alternative reasons sufficient to disregard this alleged error, we decline Ray's

request for relief on this basis.

VI.

Speedy Trial Issue

¶23. Ray apparently filed a pro se speedy trial motion sometime prior to his trial, though the motion does

not appear in the clerk's papers made a part of the record in this appeal. Just prior to trial, Ray's counsel

raised the issue of the motion. The trial court heard legal argument from both sides, but received no

evidence relating to the motion. After hearing argument, the court denied the motion without making any

supporting findings of fact.
¶24. Ray now urges this denial of relief based on a violation of his speedy trial rights to be error requiring

reversal of his conviction. Because no evidentiary hearing was conducted and the trial court made no

findings to support the denial of relief, we find ourselves substantially handicapped in our analysis. The only

pertinent facts that can be gathered from our own independent review of the record is that Ray was

arrested on February 25, 1999, and his trial commenced on June 12, 2000.

¶25. Though there are some remarks in the record by counsel as to the date Ray might have been arraigned

on these charges, there is no evidence before this Court establishing that date. Comments by counsel do not

serve as a substitute for evidence. Brewer v. State, 725 So. 2d 106, 131 (¶131) (Miss. 1998). Ray

purports to raise both statutory and constitutional speedy trial violations in his brief; however, statutory

speedy trial claims are measured from date of arraignment. Miss. Code Ann. § 99-17-1 (Rev. 2000). It

was Ray's burden, as the movant, to produce some evidence supporting his claim for relief. Duplantis v.

State, 708 So. 2d, 1327, 1335 (¶ 22) (Miss. 1998). His failure to produce evidence of his arraignment

date prevents this Court from determining whether a 270-day violation under the statute occurred. We are,

therefore, unable to afford Ray any relief on his statutory claim.

¶26. A constitutional claim, on the other hand, is computed from the time of arrest to the time of trial. Smith

v. State, 550 So. 2d 406, 408 (Miss. 1989). The Mississippi Supreme Court has said that a delay of over

eight months is presumptively prejudicial, requiring a more detailed analysis of the factors set out in Barker.

Id.; Barker v. Wingo, 407 U.S. 514, 530 (1972). The factors to be considered in Barker are four in

number: (1) length of delay, (2) reason for the delay, (3) assertion of right to speedy trial by defendant, and

(4) prejudice arising to the defendant. Id.; Bailey v. State, 463 So. 2d 1059, 1062 (Miss. 1985).

¶27. On the record now before us, the only things we know with any certainty are (a) the length of the

delay - a period of approximately 16 months, and (b) whether the defendant asserted his speedy trial

demand in a timely manner. From the record, it does not appear that Ray pursued his claim formally before

the actual day of trial, despite the unsubstantiated assertions of trial counsel during the hearing.

¶28. No reason or reasons for the delay can be discerned from evidence in the record. In the absence of

any explanation offered by the State, all the time from arrest to trial must be assessed against the State.

Perry v. State, 419 So. 2d 194, 199 (Miss. 1982).

¶29. As to the final factor, the Mississippi Supreme Court has said that prejudice to the defendant will not

be presumed merely from the passage of time. Perry v. State, 637 So. 2d 871, 876 (Miss. 1994). Rather,

the obligation to show some actual prejudice continues to remain the obligation of the defendant. Id. Ray

made no evidentiary showing of any of the traditional indications of prejudice, such as prolonged pre-trial

incarceration, loss of opportunity for employment, unavailability of witnesses or evidence due to the

inordinate delay, or evidence of his emotional distress over the pending charges. Taylor v. State, 672 So.

2d 1246, 1261 (Miss. 1996).

¶30. Based on what little relevant information this Court was able to glean from the record in this case, we

are not persuaded that Ray was successful in showing his entitlement to relief because of the State's failure

to bring him to trial in a more expeditious fashion after his February 1999 arrest. We, therefore, decline to

afford him any relief on this basis.

¶31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION

ON COUNT I FOR THE MANUFACTURE OF METHAMPHETAMINE AND SENTENCE
OF TWENTY YEARS, COUNT II FOR THE POSSESSION OF METHAMPHETAMINE AND

SENTENCE OF FIVE YEARS, AND COUNT III FOR THE POSSESSION OF COCAINE AND

SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS IS AFFIRMED. ALL SENTENCES ARE TO RUN CONSECUTIVELY.

COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,

CHANDLER AND BRANTLEY, JJ., CONCUR.