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Kimble v. State

April 07, 1998

KIMBLE V. STATE


Before McMILLIN, P.j., Herring, And Hinkebein, JJ.

The opinion of the court was delivered by: Herring, J.

TOMMY KIMBLE A/K/A "FLEA", 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: 04/09/96

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.

COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CT I AND CT II SALE OR TRANSFER OF COCAINE, A CONTROLLED SUBSTANCE: CT I SENTENCED TO SERVE A TERM OF 60 YRS IN THE MDOC AS HABITUAL OFFENDER AND NOT ELIGIBLE FOR PAROLE; CT II SENTENCED TO 60 YRS WITH THE MDOC TO RUN CONCURRENT WITH CT I

DISPOSITION AFFIRMED - 4/7/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Tommy Kimble appeals to this Court from his conviction in the Circuit Court of Grenada County, Mississippi, of two counts of the illegal sale of a controlled substance. He was sentenced as an habitual offender to serve sixty years in the custody of the Mississippi Department of Corrections without parole on the first count and sixty years on the second count, with the sentences to run concurrently. We affirm the judgment and sentences of the trial court.

A. THE FACTS

On March 22, 1995, Jamie Ashmore was acting as a confidential informant for the North Central Narcotics Task Force. Ashmore and Tim Goad, an agent with the Task Force, traveled in Ashmore's vehicle to the home of the Appellant, Tommy Kimble. Video camera equipment had previously been installed inside Ashmore's vehicle along with other sound recording equipment. After arriving at Kimble's home, Ashmore went to Kimble's front door where she purchased a rock of cocaine for the sum of twenty dollars from Kimble. After the purchase, Ashmore returned to her vehicle and turned the rock of cocaine which she obtained from Kimble over to Agent Goad, and the two of them met other Task Force agents to discuss the transaction that had just taken place between Ashmore and Kimble.

Later on that same day, Ashmore and Agent Goad attempted to purchase additional cocaine from Kimble. After determining that Kimble was not at home, Ashmore and Goad traveled to another location in the belief that Kimble would be there. After they located Kimble, Ashmore once again got out of her vehicle and purchased another twenty-dollar rock of cocaine from Kimble. As before, Ashmore then returned to her automobile and handed over the cocaine to Goad.

In her testimony on cross-examination at Kimble's trial, Ashmore made the statement, "We bought from him several times." Kimble objected to the statement and moved for a mistrial. A hearing was held outside the presence of the jury. After considering the arguments of counsel, the trial court announced that it would admonish the jury to disregard the statement made by Ashmore. The trial court also polled the jury to insure that each jury member could and would disregard Ashmore's statement. All of the members of the jury agreed that they would do so.

During the State's case in chief, the prosecutor sought to introduce two plastic bags containing the cocaine that Kimble sold to Ashmore on March 22, 1995. Kimble objected to the admission of these containers of cocaine into evidence on the ground that the State violated pertinent discovery rules and refused to afford Kimble the opportunity to have the controlled substances independently analyzed prior to trial. Following a hearing on the matter outside the presence of the jury, the trial court ruled that the State did not violate our rules of discovery and overruled Kimble's objection and ore tenus motion to suppress. Kimble did not testify and called no witnesses.

The jury convicted Kimble of two counts of the sale of controlled substances. As stated, Kimble was subsequently sentenced as a habitual offender (1) to serve sixty years with the Mississippi Department of Corrections without the hope of parole on the first count of the indictment; and (2) to serve sixty years with the Mississippi Department of ...


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