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TIM MESSER v. STATE OF MISSISSIPPI

FEBRUARY 05, 1986

TIM MESSER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE and PRATHER

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Gary Glover and Tim Messer were jointly indicted in the Circuit Court of Tunica County for the sale and delivery of marijuana to one Eddie McCullough. The case proceeded to trial against Messer, who was found guilty and sentenced to serve a term of three (3) years in custody of the Mississippi Department of Corrections with one (1) year suspended and to pay a fifteen hundred dollar ($1,500) fine. Messer has appealed to this Court and assigns three (3) errors in the trial below.

According to evidence for the State, Gary Glover told a confidential informant of Agent Eddie McCullough, Mississippi Bureau of Narcotics, that he knew a white male, who had marijuana and was willing to sell it. At approximately 11:54 a.m. on January 7, 1983, Agent McCullough met with Gary Glover at his home north of Sledge, Mississippi. They drove in Agent McCullough's vehicle to appellant's trailer in Tunica, Mississippi, which they entered and found appellant sitting on the couch in his robe. Agent McCullough asked appellant whether he had any marijuana, and was informed that he did have marijuana for sale and the price was seventy-five dollars ($75.00) per ounce. Appellant reached behind the couch and brought out a boot box which contained several bags of marijuana. The appellant told Agent McCullough that he could choose any two bags for $75.00, and McCullough paid for the marijuana with State funds. After leaving appellant's trailer, the bags were packaged and mailed to the Mississippi Crime Laboratory in Batesville, Mississippi, and it was determined by the lab technician that they contained 22.3 grams of marijuana.

 Appellant testified in his own behalf and denied selling the marijuana to the agent as well as there being several packages of marijuana in the boot box. According to appellant, Gary Glover requested him to purchase marijuana for Glover's use at McKellar Park in Memphis, Tennessee, along with a purchase appellant intended to make for himself. He claims that he gave the marijuana to Gary Glover who paid him for the contraband, instead of McCullough. Appellant admitted that McCullough was present.

 I. - II.

 Appellant contends (1) that the lower court erred in refusing to grant Instruction #2 requested by appellant, which was a lesser-included offense instruction and which would have told the jury that if it believed from the evidence Tim Messer did not deliver and sell one ounce or less of marijuana to Eddie McCullough, and that he did have in possession one ounce

 or less of marijuana, then Tim Messer was guilty of possession of one ounce or less of marijuana, which was a lesser and included offense to that charged in the indictment; and (2) that the lower court erred in refusing to give a "form of the verdict" instruction which included a lesser-included offense verdict.

 On cross-examination of Agent McCullough by the attorney for appellant, the following transpired:

 Cross Examination

 Q. What did he [Gary Glover] divulge to you about this person you could buy a quarter of a pound?

 A. He said I could buy a quarter of a pound from a person in the Tunica area, and he would take me there.

 Q. Did you interpret that to mean Messer?

 A. I didn't know who it was going to be.

 Q. Is Mr. Messer white or is he black?

 A. At first the information that was given, I believe -

 Q. - (Interrupting) - Excuse me, answer my question. Is Mr. Messer ...


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