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ROBERT PAYNE v. STATE OF MISSISSIPPI

NOVEMBER 07, 1984

ROBERT PAYNE
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, HAWKINS AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

The constitutionality of sentence is challenged by this appeal from the Jackson County Circuit Court. Robert Payne was convicted of possession of a controlled substance, marijuana, with intent to distribute, and sentenced to seven years in the Mississippi Department of Corrections of which two years would be suspended upon payment of a $3,000.00 fine.

Payne assigns as error:

 (1) the trial court's refusal to grant a mistrial for a reference during his trial to another publicized crime in the community, and

 (2) the unconstitutionality of his sentence under Mississippi Constitution, Article 3, Section 30.

 I.

 Should a mistrial have been declared for a witness's reference during testimony to another publicized crime within the community?

 The question arose during the cross-examination by defense counsel of the narcotics officer of the Jackson County Sheriff's office. The officer testified that he entered the defendant's apartment by permission of the cotenant, Glenda Wiggins. After she advised him the defendant was asleep in the bedroom, the officers awakened the defendant who was not fully clothed. The defendant's pants were picked up by the officer, and the pockets were searched to determine if the pants contained a weapon. The following colloquy between defense counsel and narcotics officer ensued:

 Q. Could he have lunged for his pants and pulled a gun out of them?

 A. Yes sir, that's possible that he could have.

 Q. How many police were standing next to him when you went through his pants?

 A. What if I hadn't gone through his pants, handed them back to him and he had had a weapon in there? You don't need another thing like Glen Rivers happening here.

 BY MR. COTTER: Your Honor, I have to move for a mistrial on that. That's totally irrelevant and has no bearing whatsoever on this case and if that's not grounds for - I have to move for a mistrial.

 BY MR. GUIROLA: Your Honor, the question was larged (sic) argumentative and he got the answer that. . . ...


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