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EUGENE SANDERS v. STATE OF MISSISSIPPI

NOVEMBER 02, 1983

EUGENE SANDERS
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, BOWLING AND ROBERTSON

BOWLING, JUSTICE, FOR THE COURT:

Appellant Eugene Sanders was convicted in the Circuit Court of the Second Judicial District of Bolivar County for the sale of 33.6 grams of marijuana. As he had prior convictions

for that offense, he was sentenced under Mississippi Code Annotated, Section 41-29-147 (1972), to serve a term of forty years under the supervision of the Mississippi Department of Corrections and ordered to pay a fine of $20,000. On appeal, appellant propounds the following assignments of error, to-wit:

 I. EUGENE SANDERS WAS DENIED A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION INSOFAR AS HIS CONVICTION WAS GAINED AS A RESULT OF THE PERJURED TESTIMONY OF NELSON BASS.

 II. EUGENE SANDERS WAS DENIED HIS RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND THE TRIAL COURT ERRED TO THE PREJUDICE OF SAID EUGENE SANDERS BY ALLOWING THE PROSECUTION TO TRY THIS CAUSE IN THE NATURE OF A CONSPIRACY WITHOUT ALLEGING CONSPIRACY IN THE INDICTMENT.

 III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL ON GROUNDS THE STATE'S FAILURE TO DISCLOSE THE PRIOR CRIMINAL RECORD OF ITS MATERIAL WITNESS, NELSON BASS, VIOLATED THE DUE PROCESS RIGHTS OF THE APPELLANT.

 IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR MISTRIAL ON ACCOUNT OF PREJUDICIAL CONDUCT ON THE PART OF THE PROSECUTING ATTORNEYS IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

 V. THE TRIAL COURT ERRED IN ADMITTING THE WHITE PAPER TOWELS INTO EVIDENCE IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

 VI. THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE WITNESS BRADLEY HAMILTON TO TESTIFY ABOUT WHAT HE OBSERVED IN APPELLANT'S STORE FROM THE APPROPRIATE LOCATION JAMES WALKER STATED THAT HE OBSERVED THE DRUG TRANSACTION BETWEEN APPELLANT AND NELSON BASS UNDER THE SAME OR SIMILAR CONDITIONS IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

 VII. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 The evidence introduced by the state was that on the night of December 15, 1981, an undercover agent working with

 the Bolivar County Sheriff's Department went to the Town of Shaw for the purpose of purchasing contraband from sellers. Admittedly on this night, concentration was made on appellant Sanders. The undercover agent was experienced, having made 23 previous "buys." This agent testified that he went to Shaw in a vehicle furnished by the sheriff's department, after receiving instructions and purchase money from a deputy sheriff who was in charge of such undercover operations. The undercover agent visited several places in Shaw according to his testimony, and went into the Sanders' Food Market, where he saw Sanders, but did not attempt to make a buy personally, as people were there.

 Later, sometime between 9 and 10 o'clock p.m., the agent picked up a man named Nelson Bass, who was asked to arrange for the purchase of marijuana by the agent. Bass, according to the agent, instructed the latter to park his car across the street from Sanders' Food Market and he would take the agent's money and secure the marijuana. The agent gave Bass $85 and requested that two ounces be purchased. The agent testified that he had a full and unobstructed view of the Food Market, including the interior. The vehicle was parked approximately 49 steps [measured later] from the market. He saw Bass tap on the door of the market, which was closed with the door locked. Sanders came to the door and let Bass in. There was a short conversation between the two men. Appellant then made a telephone call. Approximately five minutes later, Shirley Williams drove up to the market and parked her car and went inside. She had in her hand a package that appeared to be wrapped in some type of white paper. The agent saw Williams hand this package to Sanders, who in turn handed it to Bass. The latter came back across the street and gave the package to the agent. After leaving Bass, the agent placed his identifying marks on the packages containing what was thought to be marijuana, which bags were enclosed in a piece of white paper towel. No mark was made on the paper towel. The agent then met again with the deputy sheriff at their rendezvous. The deputy made his mark on the contraband and a tape recording was made of what had occurred. On proper motion, this tape was not submitted to the jury.

 The deputy sheriff testified and without repeating the testimony, confirmed that of the agent in regard to the deputy's part of the incident that occurred that night. The state then connected the package of marijuana with that purchased by the undercover agent and identified the marijuana and its ...


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