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LEWIS (LOUIS) REEVES KELLY a/k/a "BUG" KELLY v. STATE OF MISSISSIPPI

NOVEMBER 22, 1989

LEWIS (LOUIS) REEVES KELLY a/k/a "BUG" KELLY
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PITTMAN AND BLASS.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

On March 10, 1987, Lewis (Louis) Reeves Kelly, a/k/a "Bug" Kelly, was convicted of possession of a controlled substance with intent to distribute. He was sentenced to 20 years in the custody of the Mississippi Department of Corrections and fined $20,000.00. Aggrieved by his conviction and sentence, Kelly has perfected this appeal. After a thorough review of the record and arguments presented, we affirm.

A.

 Kelly was the proprietor of a bar on Verlon Avenue in Moss Point, Mississippi, known as "Kelly's Bar." His activities at the bar had been the subject of a 14-month investigation by

 authorities. On the afternoon of August 15, 1986, through the combined efforts of approximately ten law enforcement officers from the Mississippi Bureau of Narcotics, Moss Point Police Department and Pascagoula Police Department, Kelly was served with a search warrant at his place of business. The warrant authorized the officers to search for rock cocaine, better known as "crack."

 While being escorted to the room behind the bar, the 6'3 ", 327-pound Kelly reached into his groin area, removed a plastic bag, ran over his escort, entered the bathroom and flushed the bag down the toilet. Kelly was subdued by several officers, handcuffed and placed in the hallway while the search continued.

 The toilet, after being hand-searched, was ripped from the floor, taken outside in front of the establishment and smashed to bits. The plastic bag was not found.

 The City of Moss Point Water Department, Sewer Department and Fire Department were summoned to the scene. The water was turned off. After a determination that the Bar was connected to the main sewer system, the manhole cover 55 feet in front of the bar in the middle of Verlon Avenue was opened and secured by several officers. Five gallons of water was poured down the hole in the floor where the toilet had been and a plastic bag of off-white mush and rocks emerged from a drain pipe. It was later determined that the plastic bag contained cocaine.

 A complete search of the premises yielded the following items: a matchbox containing eight (8) rocks of cocaine, two (2) mirrors, a bag of cotton swabs, an empty matchbox, three (3) spoons, a butane lighter, pieces of coat hangers, .357 magnum gun, a box of thin razor blades, loose razor blades, scales, a bottle of Inositol, and three (3) boxes of Arm & Hammer baking soda. These items were taken into custody. Kelly and the manager of the bar, Jake Williams, were arrested and charged with possession of a controlled substance with intent to deliver.

 An employee of Kelly's, Prosena Ariva Reddix, was also arrested. After giving a tape-recorded statement to the authorities, she was released without being charged.

 Kelly and Williams were jointly indicted in October of 1986. Kelly filed a Motion for Discovery on October 13, 1986 and a Supplemental Request or Motion for Discovery on October 16, 1986. The State filed its Motion for Discovery on October 16, 1986. Both of these Motions were granted October 16, 1986. Kelly was arraigned on December 15, 1986. He was granted a change of venue to Meridian, Lauderdale County, Mississippi, on February 9, 1987, and trial was set for March 9, 1987. Williams

 was granted a severance.

 A hearing was held Tuesday, March 3, 1987 on Kelly's Motion to Suppress evidence recovered under the search warrant and Motion to Disclose Identity of Confidential Informant. Both motions were overruled. Additionally, both Kelly and the State were ordered to present a list of trial witnesses to the Court by the close of business on March 3, 1987, and to supplement those lists before Friday, March 6, 1987.

 Kelly filed an additional Motion to Suppress and Motion in Limine on March 6, 1987, both of which were heard following the selection of the jury on March 9, 1987. The motions were overruled in part and sustained as to the following: any mention of marijuana, evidence of other crimes, and name calling.

 Following the trial, conviction, and sentencing, Kelly filed a Motion for a New Trial. This Motion was overruled. Aggrieved with the outcome, he appeals and assigns four (4) errors. B.

 Assignments of Error I and III concern allegations of Rule 4.06 violations. For that reason, they are considered together.

 ASSIGNMENT OF ERROR No. I

 The Trial Court Erred in Allowing into Evidence Certain Items which had not Previously been Disclosed to Counsel in ...


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