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Jenkins v. State

February 10, 1998

DAVID JENKINS, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



DATE OF JUDGMENT: 11/06/95 TRIAL JUDGE: HON. ANDREW C. BAKER COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: POSSESSION W/ INTENT; 18 YEARS, 9 TO SERVE

Before Thomas, P.j., King, And Payne, JJ.

The opinion of the court was delivered by: Thomas, P.j., For The Court

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CRIMINAL - FELONY

David Jenkins appeals his conviction of possession of marijuana with intent to sell and possession of cocaine with intent to sell raising the following issues as error:

I. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO A VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, AND THE DEFENDANT'S STATUTORY RIGHT TO BE TRIED WITHIN 270 DAYS OF ARRAIGNMENT.

II. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO AN ILLEGAL SEARCH AND SEIZURE, WITHOUT A WARRANT.

III. THE LOWER COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF POSSESSION WITH INTENT TO SALE, BARTER, OR DISTRIBUTE A CONTROLLED SUBSTANCES.

Finding no error, we affirm.

FACTS

The Yalobusha County Sheriff's Department received information that David Jenkins was entering Coffeeville, Mississippi on Fridays and Saturdays to sell drugs. On August 5, 1994, Deputy Milton Hervey saw Jenkins driving in town. Hervey contacted Deputy Homer Melton and told him that Jenkins was driving around the west side of Coffeeville. Melton drove around and saw Jenkins stopped at a stop sign. Melton pulled beside Jenkins. As Melton stepped outside his vehicle to talk to Jenkins, he noticed that Jenkins had a beer can between his legs. The deputy informed Jenkins that it was illegal to have beer in Yalobusha County and asked Jenkins for his driver's license. As Jenkins bent over to retrieve his license, Melton reached in the automobile and put the vehicle in park. Melton then asked Jenkins to exit his vehicle, and as Jenkins was exiting he tried to flee. As Jenkins tried to flee, Melton saw that he was trying to reach in his pocket. Melton was able to apprehend Jenkins, and soon thereafter Deputy Hervey arrived on the scene. As the deputies were handcuffing Jenkins, he threw a brown bag out of his pocket. After they handcuffed Jenkins, Melton retrieved the brown bag, looked inside, and discovered that the bag contained what appeared to be marijuana and crack cocaine.

After they handcuffed and placed Jenkins under arrest, the deputies transported him to the Yalobusha County Jail in Water Valley, Mississippi. Officer Randy Corbin, with the Mississippi Bureau of Narcotics, was called to assist on the arrest of Jenkins. Corbin testified that he helped photograph the evidence and thereafter took custody of all the alleged drugs. Corbin transported seven separate "dime" bags of marijuana and several small plastic containers that contained approximately thirty-eight rocks of crack cocaine to the Mississippi Crime Laboratory in Batesville. Carol Karr, with the Mississippi Crime Laboratory, testified that she tested the contents and found that the exhibits contained marijuana and cocaine.

Jenkins testified that he and his brother had been driving around Coffeeville that day. He stated that his brother was drinking beer, but he had not. Jenkins testified that when he dropped his brother off, his brother left his beer in the tray on the floorboard. Jenkins stopped at a stop sign and was about to turn when he saw Deputy Melton driving. Since Melton did not have his turn signal on, Jenkins waited for Melton to drive by. However, Melton turned and signaled Jenkins to stay. After the deputy stopped his vehicle, Jenkins testified that Melton got out of the sheriff's vehicle and walked up to his automobile. When Melton got to his automobile, Jenkins stated that the deputy asked for his driver's license. As Jenkins was reaching for his license Jenkins testified that Melton asked him to step out of the vehicle. Before Jenkins made it all the way out of the automobile, Melton grabbed him and Deputy Hervey arrived on the scene. Jenkins testified that he did not reach in his pocket at any time because Melton had his arms. As Jenkins was sitting in the back of the deputy's vehicle, he saw Melton searching his vehicle. Jenkins testified that he never had a brown bag in his pockets or in his vehicle.

Following deliberation, the jury returned a verdict of guilty of intent to sell less than one ounce of ...


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