BEFORE PATTERSON, PRATHER AND ROBERTSON
PRATHER, JUSTICE, FOR THE COURT:
The question of whether the transaction for sale of marijuana consisted of a single occurrence or separate and distinct sales within a twenty minute period is addressed by this appeal. Curtis Minor and Donnell Kinzie were jointly indicted in the Circuit Court of Copiah County for the sale of more than one ounce of marijuana. Upon conviction, Curtis Minor was sentenced to three years and Donnell Kinzie to five years in the custody of the Mississippi Department of Corrections. Minor and Kinzie appeal and assign jointly the following error:
(1) The trial court erred in not granting Donnell
Kinzie's motion for severance;
(2) The trial court erred in permitting evidence to be introduced pertaining to a separate and distinct sale of marijuana over the objections of the defendants;
(3) The trial court erred in not excluding the evidence and directing a verdict of acquittal for the defendants in overruling the defendants' motions for judgment of acquittal notwithstanding the verdict of the jury;
(4) The trial court erred in not granting Instruction No. D-1;
(5) The verdict of the jury is contrary to the law and the evidence, is not supported by the evidence, and the overwhelming weight of the credible evidence.
On the evening of March 29, 1983, Lieutenant Mallory, an undercover agent with the Mississippi Bureau of Narcotics, was taken to the home of Curtis Minor by Billy Don and Rose Ann Saulters, two confidential informants. At approximately 9:00 p.m. the parties met Minor on the road close to his house and Minor agreed to help them find marijuana for sale. In his own car, Minor followed Lt. Mallory and the Salters to the parking lot of the T G & Y in Hazlehurst. At that point Minor got in Lt. Mallory's car and directed Mallory to the location of a drug dealer who was out of drugs. From there Minor directed the parties to the C & T Liquor Store, where he said a person named Houston had marijuana to sell.
Upon arrival at the C & T Liquor Store, Curtis Minor went inside and returned with Houston Collins, Donnell Kinzie and an unidentified black male. As Houston Collins suspiciously approached the car, Lt. Mallory told Collins he "needed an ounce, maybe a quarter of a pound." Collins replied that he would send someone out with the marijuana. Minor, Collins, Kinzie and the unidentified man then went back into the store.
A few minutes later, Minor, Kinzie, and the unidentified male returned and told Lt. Mallory he would have to give Minor the purchase money before receiving the marijuana. Lt. Mallory gave Minor $100 and the three went back into the store. Momentarily, Kinzie and Minor returned with a bag of less than one ounce of marijuana. Kinzie handed the bag to Minor who got in the car with Lt. Mallory and delivered the bag. Minor then asked Lt. Mallory for some of the marijuana but Mallory gave him $10.00 instead.
Subsequently, as Kinzie was standing outside Mallory's car, Kinzie asked Mallory if he still wanted a quarter-pound of marijuana. Mallory responded affirmatively, but before the negotiations could continue, the parties were interrupted by the sirens of police cars en route to the scene of an accident. The defendants, not knowing the reason for the police sirens, all scattered, but the undercover agent remained in his car never leaving the scene. Approximately 15 minutes later the negotiations resumed, and Kinzie finally agreed to a price of $325.00 for a quarter pound. Curtis Minor got out of the car and went with Kinzie back into the store.
Shortly thereafter, Kinzie, Minor, and the unidentified party returned to the car with Kinzie carrying the marijuana. Kinzie handed the bag to Minor who, in turn, handed it to Lt. Mallory. Mallory paid the $325.00 to the unidentified man who passed the money on to Kinzie. Lt. Mallory, along with the Salters, then left the scene. Collins, Minor, and Kinzie were subsequently indicted for the sale of more than one ounce of marijuana, a controlled substance, in violation of Miss. Code Ann. 41-29-139 (1972). Defendant Collins was granted a severance but Minor and Kinzie were tried together.
The only testimony that contradicted the testimony of Lt. Mallory concerning the events of the drug sale was that of Ellis Blackwell, Jr., Kinzie's stepfather. Blackwell testified that on the night of March 29, 1983, Kinzie returned from Simpson County with Mr. Blackwell and his wife. Blackwell testified that they arrived home at 9:30 p.m. and that Kinzie was asleep in his bed by 10:00 p.m. Blackwell further testified that he saw Kinzie in bed at 10:30 p.m., 11:00 p.m. and 11:30 p.m. Blackwell concluded by testifying that Kinzie did not leave the house that night.
Prior to the trial's beginning in chambers, the district attorney announced to the court and defense counsel that the state considered the two sales of marijuana as one transaction because the ...