Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: Payne, J
MICHAEL NAYLOR A/K/A MICHAEL WARREN NAYLOR A/K/A "SCOOTER", APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 03/29/96
TRIAL JUDGE: HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: DELIVERY OF COCAINE: SENTENCED TO SERVE A TERM OF 60 YRS WITH THE MDOC, NOR ELIGIBLE FOR PAROLE OR EARLY RELEASE, PAY A $10,000.00 FINE, $100.00 CRIME LAB FEE, & COURT COSTS OF $234.50
DISPOSITION REVERSED AND REMANDED - 3/24/98
Michael Naylor, also known as Scooter, was convicted for the sale of cocaine and was given an enhanced sentence as a habitual offender pursuant to Miss. Code Ann. § 41-29-147 (Rev. 1993) and § 99-19-81 (Rev. 1994) to serve a term of sixty years in the custody of the Mississippi Department of Corrections and pay a fine in the amount of $10,000. Naylor's motion for JNOV or, in the alternative, a new trial was denied. Finding merit in Naylor's first assignment of error, we reverse and remand for a new trial.
On May 31, 1995, while gathering intelligence for an undercover drug operation, Agents Alan Anderson and Mike Lee of the Lauderdale County Drug Task Force came into contact with Lisa Tyrone at the Royal Inn Lounge in Meridian, Mississippi. The agents witnessed Tyrone smoking crack cocaine outside of the lounge and asked her if she knew where they could purchase some cocaine. Tyrone indicated that she could get them some cocaine and instructed the agents to meet her in an hour at the Dairy Queen.
In the meantime, Agents Anderson and Lee went back to their office where Lee was issued $200 in cash and Anderson was outfitted with a listening device. Thereafter, the agents drove to the Dairy Queen where Tyrone motioned for them to follow her around the corner. Tyrone then got out of her vehicle accompanied by a man that she introduced as Scooter. Scooter indicated to the agents that he could get them some crack cocaine. Thereafter, Tyrone and Scooter, followed by Anderson and Lee, stopped at two locations looking unsuccessfully for cocaine. Fearing that the surveillance agents would eventually be seen, Anderson and Lee suggested that they just go to Tyrone's house and wait while Scooter located some cocaine. Tyrone agreed, got into the car with the agents, and directed them to her house. While waiting in Tyrone's driveway, Tyrone went into her house where she retrieved a bottle of Vistaril and sold it to Anderson and Lee for $20.
Shortly thereafter, Scooter and another man arrived. Scooter approached Anderson's window and placed six small rocks of crack cocaine into Anderson's hand. Anderson and Scooter then began negotiating the price, finally agreeing on a price of $90. Anderson gave Scooter five twenty-dollar bills, and the man with Scooter gave Anderson $10 as change.
Anderson and Lee later identified Scooter from a photographic lineup. In court, both agents positively identified Naylor as the man known to them as Scooter who sold them the crack cocaine. At trial, the defense presented no evidence and the jury subsequently returned a verdict of guilty for the sale of crack cocaine. Feeling aggrieved, Naylor filed this appeal asserting two issues.
I. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EVIDENCE IN VIOLATION OF RULE 404 OF THE ...