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SANDRA SIMMONS JOHNSON v. STATE OF MISSISSIPPI

DECEMBER 19, 1984

SANDRA SIMMONS JOHNSON
v.
STATE OF MISSISSIPPI



BEFORE WALKER, BOWLING AND PRATHER

WALKER, PRESIDING JUSTICE, FOR THE COURT:

Sandra Simmons Johnson was convicted in Pearl River County Circuit Court of selling a Schedule I controlled substance under Mississippi Code Annotated section 41-29-113 (c)(16). She was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections.

Larry E. Taplin, a police officer with the New Orleans police department, was on special assignment with the Picayune Police Department as an undercover narcotics agent. He and another officer were attempting to buy marijuana but were unsuccessful. He approached the appellant who asked them if they wanted to buy some "T" . "T" is another name used for PCP or phencyclidine. Officer Taplin purchased two "bags" or tinfoil packets for twenty dollars from appellant.

 Appellant testified that she sold the drug to Larry Taplin. She said that she was given the packets by Jessie Williams in New Orleans. She said that she knew it was something that would make a person "high" but that she did not know it was an illegal drug.

 On appeal appellant assigns that seven errors were committed by the lower court.

 (1) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING

 TO SUSTAIN APPELLANT'S MOTION FOR DISCOVERY TO INSPECT AND TEST THE ALLEGED CONTROLLED SUBSTANCE

 In the record there is a motion styled "MOTION FOR DISCOVERY OF SANDRA SIMMONS JOHNSON" which reads in part:

 Defendant moves for the disclosure of, and to inspect, examine and test any photographs, books, papers, documents and other tangible objects that were obtained from defendant or defendant's property or that allegedly belonged to defendant.

 There is nothing further in the record to indicate what transpired. There is no indication that the trial court refused to sustain appellant's motion. It is the responsibility of the movant to obtain a ruling from the court on motions filed by her and failure to do so constitutes a

 waiver. Martin v. State, 354 So.2d 1114 (Miss. 1978); Conn v. State, 260 So.2d 471 (Miss. 1972); Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Grant v. Planter's Bank, 5 Miss. (4 How.) 326 (1840). See Minor v. State, 396 So.2d 1031 (Miss. 1981).

 Further, the record shows that appellant did not object to the testimony concerning the alleged controlled substance or the admission of the substance into evidence. Appellant's motion for a new trial further does not raise this question.

 There is no merit to appellant's assignment of error.

 (2) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

 PROCEEDING WITH TRIAL, ENTRY OF FINAL JUDGMENT AND SENTENCING OF APPELLANT FOLLOWING REMOVAL TO FEDERAL COURT

 Appellant filed a Petition for Removal of her case to the United States District Court for the Southern District of Mississippi pursuant to 28 USC 1443. On the date of trial the State and appellant announced ready for trial and voir dire of the jury began at 10:00 a.m. The Petition for Removal was received at 1:15 p.m. by the clerk of the Circuit Court of Pearl River County. After the jury found the appellant guilty and the appellant was sentenced, the trial judge directed the clerk "to withhold the entry of the order of conviction on the minutes of this Court until final disposition has been made by the Federal Court on said alleged [sic] Petition of Removal."

 28 USC 1446 (c)(1) as amended provides:

 A petition for removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the petition at a later time.

 In United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1027 (9th Cir. 1975) the Court held that the phrase "before trial" means "before proceedings for empanelling the jury" and a removal petition filed after a number of jurors had been selected was untimely.

 The record indicates that the petition was filed and notice to the Pearl River County Circuit Clerk was given after appellant's trial began. Even if the removal is considered timely for the sake of argument, 28 USC 1446 (c)(3) states

 the following:

 The filing of a petition for removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the petition is first denied.

 This was done in this case.

 Therefore, there is no merit to appellant's ...


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