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02/24/98 DESMOND NUGENT v. STATE MISSISSIPPI

DESMOND NUGENT, A/K/A DESMOND HENRY, APPELLANT A/K/A BOBSY DICIS, A/K/A BOBSY DACRES
v.
STATE OF MISSISSIPPI, APPELLEE



DATE OF JUDGMENT: 01/17/90 TRIAL JUDGE: HON. JERRY OWEN TERRY SR. COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

Before: Bridges, C.j., Coleman, And Southwick, JJ.

The opinion of the court was delivered by: Coleman, J., For The Court:

DISTRICT ATTORNEY: CONO ANTHONY CARANNA, II

NATURE OF THE CASE: CRIMINAL - POSSESSION OF COCAINE, A CONTROLLED SUBSTANCE, WITH INTENT TO DELIVER

TRIAL COURT DISPOSITION, APPELLANT FOUND GUILTY AND SENTENCED TO SERVE A TERM OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS

DISPOSITION AFFIRMED - 2/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

In the Circuit Court of the Second Judicial District of Harrison County, a jury found the appellant, Desmond Nugent, guilty of possession of cocaine, a controlled substance, with the intent to deliver. The trial court then entered its final judgment of Nugent's guilt in which it sentenced him to serve a term of fifteen years in the custody of the Mississippi Department of Corrections. Nugent has perfected his out-of-time appeal from this judgment to argue, first, that his conviction was based upon evidence which the State obtained in violation of his Sixth Amendment right against unreasonable search and, second, that he was denied his right to a constitutional speedy trial. Nevertheless, this Court affirms the trial court's judgment and sentence.

I. FACTS

In October 1988, Sam Owens, an agent for twelve years with the Mississippi Bureau of Narcotics (MBN), had twice purchased cocaine from Jerome Shaw. In the morning of December 17, 1988, Agent Owens picked up Shaw from whom he intended to purchase cocaine for a third time. Shaw directed Owens to a house at 500 Vicki Drive where his supplier lived. Agent Owens gave Shaw $2000 in state funds with which to purchase the cocaine, left him near the house at 500 Vicki Drive, and drove away. Shaw entered the residence but shortly re-emerged without any cocaine. Agent Owens met Shaw down the street.

Mississippi Highway Patrol Major Philip M. Ladner, a twenty-three-year veteran with the patrol, was conducting surveillance from a vehicle parked in the St. Martin School yard approximately two-hundred to two-hundred-fifty feet east-northeast of the house. From his vantage, he saw the entire rear and north side of the house which Shaw had entered. As soon as Shaw departed, Major Ladner saw Nugent exit the sliding-glass door in the back of the house and walk to the air conditioning compressor unit, behind which he knelt. When Nugent stood, he had a small white packet in his hand. Nugent then re-entered the house. Major Ladner videotaped the entire episode.

MBN Agent Owens returned Shaw to the house again. This time, Shaw entered the residence, remained briefly inside, and then exited with a packet which contained approximately one ounce of cocaine. When Agent Owens picked up Shaw for the third time, Shaw informed Owens that he had purchased an ounce of cocaine with the $2,000 in state funds which Owens had given him for that purpose. Officer Owens drove Shaw to a nearby Fast Lane gas station, where he revealed to an astonished Shaw that he was an undercover narcotics agent and, with the assistance of other officers who were involved in the operation, arrested Shaw.

While Major Ladner and other officers continued to watch the house, Agent Owens proceeded to Justice Court Judge Cecil Montgomery and presented him with an affidavit, to which he had attached the underlying facts and circumstances as an exhibit, to support his request that Judge Montgomery issue a search warrant for the house in which Shaw had just bought the ounce of cocaine. Judge Montgomery then issued a search warrant for the house located at 500 Vicki Drive.

Officer Owens and several other policemen and narcotics agents promptly returned to the house, where they executed the search warrant after they had served a copy of it on the appellant, Desmond Nugent. Nugent was alone in the house when the officers arrived to search it. Inside the house, Agent Owens and his associates found drug paraphernalia and recovered the $2000 in state funds from the bottom of a dresser drawer in one of the bedrooms. Outside, the officers removed some dirt and grass from the space between the brick wall of the house and the air-conditioning compressor unit and discovered two small glass containers and a plastic bag which later proved to contain approximately ten ounces of cocaine. Agent Owens immediately arrested Nugent for the possession and sale of cocaine.

II. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES

Because Nugent challenges neither the sufficiency nor the weight of the evidence in this appeal, we proceed directly to our review, analysis, and resolution of his two issues, during which we will recite such additional facts, events, and testimony from the trial as are necessary to understand the base'Nugent's two issues. We recite the two issues verbatim from Nugent's brief:

1. Should the indictment and conviction of Nugent, based as they were primarily upon incompetent evidence the product of a search and seizure authorized pursuant to an affidavit and search warrant not in evidence, and not subject to judicial scrutiny, be reversed and remanded for a new trial?

2. Should the ruling of the trial court denying Nugent's request for relief upon federal speedy trial grounds be reversed, and the case remanded, for findings of fact and Conclusions of law in accordance with previous Mississippi authority applying speedy trial principles, and in the face of pretrial incarceration found, by precedent, to be excessive for Sixth Amendment purposes?

A. ADMISSION OF EVIDENCE FROM SEARCH AND SEIZURE

Nugent argues that his conviction should be overturned on the ground that the evidence upon which his conviction was based was derived from an affidavit for search warrant, underlying facts and circumstances, and a search warrant never placed into evidence. He argues, "Their absence prevents this court, as surely as it did the trial court, from measuring the evidence by the proper legal ...


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