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E. D. TURNER v. STATE OF MISSISSIPPI

JANUARY 07, 1987

E. D. TURNER
v.
STATE OF MISSISSIPPI



BEFORE WALKER, C.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I

When in the context of a criminal proceeding the prosecution is required to disclose to the accused the name of a confidential informant is a subject upon which this Court has uttered on a number of occasions in recent years. Apparently, however, our prior decisions have not made clear one nuance of our discovery rules, for on today's facts we find that the prosecution was obligated to disclose the name of the informant but didn't. Beyond that, the trial court relied upon impermissible considerations in refusing to grant the accused a continuance so that he might have a reasonable opportunity to locate, interview and obtain the testimony of the witness/informant. We reverse and remand.

 II.

 Today's cast of characters includes three suspected drug vendors and three associates of the Mississippi Bureau of Narcotics. Occupying center stage is E. D. Turner, Defendant below and Appellant here. Because Turner's motion for severance was granted, he was tried alone without his codefendants, Eddie Smith and Ted McLaurin. The controlled substance, subject of the alleged barter, is pentazocine, which is combined with another substance, tripelennamine, which is not a controlled substance. The street name for this set" is "T's and blues."

 On October 27, 1982, undercover agent Reginald Gage - accompanied by Shirlene Anderson of the Bureau of Narcotics, Cathy Johnson, a confidential informant, and Eddie Smith, a codefendant - went to the Peacock Lounge in Gulfport, Mississippi, to purchase drugs. Gage and Smith went into the lounge. Shirlene Anderson and Cathy Johnson remained in the car parked near the entrance of the lounge, but nevertheless witnessed a vital part of the transaction to come, which took place in the open doorway of the lounge.

 Inside the Peacock Lounge Reginald Gage and Eddie Smith approached Appellant E. D. Turner. *fn1 Gage testified that Smith received four sets of T's and blues from Turner. Turner then left the building. Codefendant Ted McLaurin approached and handed Smith six more sets of T's and blues. Gage testified that Smith then handed McLaurin a $100.00 bill. Then Gage and

 Smith left the lounge.

 Gage testified that, as he was returning to his car, he saw Turner come from the residence that was approximately 10 to 20 feet from the lounge. Gage saw McLaurin meet Turner in the doorway of the lounge and hand Turner a bill, the denomination of which he could not see. Agent Shirlene Anderson and confidential informant Cathy Johnson had remained in the car with the windows down and watched this last transaction, the alleged exchange of money between McLaurin and Turner. At trial Anderson testified that she saw McLaurin hand Turner something green but that she did not know what it was. Significantly, the existence of the other possible eyewitness, confidential informant Cathy Johnson, was not disclosed by the prosecution until after the trial had begun. The prosecution did not call Johnson as a witness.

 In any event, Turner's October 26, 1984, trial resulted in a jury verdict that he was guilty of the unlawful sale of a controlled substance, to-wit: pentazocine, Miss. Code Ann. 41-29-115(d)(6) (Supp. 1986). In due course the Circuit Court sentenced Turner to twenty (20) years imprisonment. Miss. Code Ann. 41-29-139(b) (Supp. 1986). This appeal has followed.

 III.

 Turner first assigns as error the action of the Circuit Court in denying his request for a peremptory instruction at the end of all of the evidence and his subsequent post-trial motion for judgment of acquittal notwithstanding the verdict. Here, of course, Turner challenges the legal sufficiency of the evidence to sustain a verdict at all. The point need not detain us. By reference to the description of the facts set forth in Section II above, and having in mind our familiar rule that the evidence must be viewed in the light most favorable to the verdict, this assignment of error must be denied. Williams v. State, 463 So. 2d 1064, 1067-68 (Miss. 1985). See also Griffin v. State, 480 So. 2d 1124, 1125-26 (Miss. 1986): Turner v. State, 478 So. 2d 300, 301 (Miss. 1986); Burnham v. State, 467 So. 2d 946, 947 (Miss. 1985); McGowan v. State, 375 So. 2d 987, 990 (Miss. 1979).

 IV.

 Turner also assigns as error the failure of the prosecution to comply with our discovery rules. The particular sin charged is the prosecuting attorney's pre-trial failure to disclose the name of Cathy Johnson, a confidential informant, followed by the Circuit Court's ...


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