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MARVIN LEON HALL v. STATE OF MISSISSIPPI

JUNE 07, 1989

MARVIN LEON HALL
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., ANDERSON and BLASS, JJ.

BLASS, JUSTICE FOR THE COURT:

Marvin Hall, appellant/defendant, was arrested in November 1985 for the sale of cocaine to an undercover agent at a baseball game on May 9, 1985 at Vernon Dahmer Park, Hattiesburg, Forrest County, Mississippi.

On May 9, 1985, Marie Edwards, a narcotics agent employed by the Mississippi Bureau of Narcotics, met a confidential informant, Sammy Smith, at the Metro Narcotics office of the Hattiesburg police department. Edwards and Smith drove to Dahmer Park in a van which was owned by Smith's employer. Smith was to contact Marvin Hall, tell him that Edwards wanted to buy cocaine, and introduce the two.

 When they arrived at the park Smith left the van to find

 Hall. Smith returned shortly and sat in the driver's seat Edwards was in the front passenger seat. After a few minutes, a man entered the the van through the side sliding door. He identified himself as "James" . Edwards said she wanted some "coke" . He said he had some "50 cent papers." Edwards gave him $100, he gave her two yellow folded papers. Hall left. Edwards positively identified "James" as the defendant Marvin Hall. Edwards and Smith returned to the police station. The substance in the yellow paper was identified as cocaine.

 In due course Marvin Leon Hall was arrested, tried, and convicted by a jury in the Circuit Court of Forrest County, MS. of the crime of Sale of Cocaine. He was sentenced to a term of twenty-five years in the custody of Mississippi Department of Corrections. Hall appeals this conviction and sentence assigning the following errors:

 1. THE COURT ERRED IN NOT DECLARING THE CONFIDENTIAL INFORMANT TO BE A HOSTILE WITNESS TO THE APPELLANT EVEN THOUGH HE WAS SUBPOENAED BY THE DEFENSE AND THEREFORE SUBJECT TO BEING CROSS-EXAMINED BY LEADING QUESTIONS.

 2. THE COURT ERRED IN NOT ALLOWING APPELLANT'S ATTORNEY TO QUESTION THE CONFIDENTIAL INFORMANT ABOUT PRIOR ARREST OR CONVICTIONS FOR IMPEACHMENT PURPOSES OR TO SHOW A PATTERN AND PRACTICE OF THE CONFIDENTIAL INFORMANT OF BEING ARRESTED AND CHARGED AND ENTERING PLEAS IN EXCHANGE FOR DEALS.

 3. WHETHER BASEBALL UNIFORM SHOULD HAVE BEEN ADMITTED INTO EVIDENCE AS REBUTTAL TESTIMONY OF THE AGENT DESPITE THE FACT THAT IT WAS NOT DISCLOSED IN DISCOVERY BY THE APPELLANT.

 4. THE COURT ERRED IN NOT SUSTAINING APPELLANT'S MOTION TO DISMISS AT THE CONCLUSION OF THE STATE'S CASE.

 Finding no reversible error, we affirm the conviction and sentence.

 I.

 DID THE COURT ERR IN NOT DECLARING THE CONFIDENTIAL INFORMANT TO BE A HOSTILE WITNESS AND IN NOT ALLOWING APPELLANT'S ATTORNEY TO QUESTION THE CONFIDENTIAL INFORMANT ABOUT PRIOR ARREST OR CONVICTIONS FOR IMPEACHMENT PURPOSES OR TO SHOW A PATTERN AND PRACTICE OF THE CONFIDENTIAL INFORMANT OF BEING ARRESTED AND CHARGED AND ENTERING PLEAS IN EXCHANGE FOR DEALS?

 Marvin Hall was introduced to the undercover narcotics agent Marie Edwards by Sammy Smith, a confidential informant, whose identity was subsequently revealed. Smith was cooperating with the police in exchange for relief from a charge of sale of less than an ounce of marijuana. The prosecution did not call Smith to testify against Hall. The defense called Smith. After an unsuccessful attempt to question Smith about the charge for the sale of marijuana, defense counsel indicated that Smith was being questioned pursuant to Miss. R. Evid. 611 and Harris v. Buxton T.V., 460 So.2d 828 (Miss. 1984). Defense counsel argued to the court:

 . . .its my impression that he's (the prosecutor) indicating that we're trying to impeach a person that we consider to be in - I think 6.11 would show that he is a possible witness regarding his convictions. We are not asking about any past convictions. We're asking about this problem with the law that prompted him to become a confidential informant. Because of the nature of his testimony and the fact that he is involved strongly in the State's case and that he basically informed in said other State's cases, he, of course, is hostile.

 . . .

 But we're not trying to impeach him based on any convictions. We already - he's already testified as to why he's cutting deals with the police. All we're asking him is has he been involved with any other trouble.

 . . .

 We're asking that for the purpose of showing how interested he is in turning in anybody to help himself.

 The Mississippi Rules of Evidence were in effect at the time of Hall's trial. Harris v. Buxton T.V. Inc. was decided before Mississippi adopted the Rules of Evidence. Harris is cited in the Comment to Miss. R. Evid. 611 which states that the Advisory Committee is cognizant of the Harris decision but considers the interpretation and application of the phrase "identified with the adverse party" to be broader than expressed in Harris. In Harris this ...


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