DATE OF JUDGMENT: 3/29/96 TRIAL JUDGE: HON. KENNETH L. THOMAS COURT FROM WHICH APPEALED: CIRCUIT COURT OF COAHOMA COUNTY
Before Pittman, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice, For The Court:
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. Walter Thomas appeals his conviction in the Circuit Court of Coahoma County for conspiracy to possess a controlled substance with the intent to transfer. He was sentenced to serve a term of five years under the supervision of the Mississippi Department of Corrections, with four years suspended. Aggrieved by the jury's verdict, Walter Thomas assigns the following as error:
I. WHETHER THE COURT VIOLATED THOMAS' RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE WHEN HE WAS FOUND GUILTY OF CONSPIRACY.
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE "VORTICE TAPE" IN VIOLATION OF THOMAS' RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
¶2. After careful review of the record and briefs in this matter, this Court holds that Thomas' rights under the Double Jeopardy and the Confrontation Clauses were not violated and thus, affirms Thomas' conviction.
¶3. The genesis of this case is the recovery of three micro cassettes which were discovered in the execution of a search warrant in the early morning hours of September 21, 1995, by Randy Corbin of the Mississippi Bureau of Narcotics. The tapes recorded conversations between Walter Thomas, Henderson Clark, Henry Vortice, and Fontroy Allen occurring prior to March 28, 1995. The discovery of these tapes prompted the investigation which resulted in this prosecution. Walter Thomas ("Thomas") was a shift supervisor with the Clarksdale Police Department; Henderson Clark ("Clark") was an officer with the Clarksdale Police Department; Henry Vortice ("Vortice") was a State Trooper who had previously been an officer with the Clarksdale Police Department; and, Fontroy Allen ("Fontroy")was a local drug dealer. According to the testimony and evidence developed at trial, the following events occurred.
¶4. Vortice (state trooper) was evidently" shaking down" Fontroy (drug dealer) and involved Clark (police officer) in communications regarding the shake down. Fontroy, through Thomas (police officer), indicated that he did not have the money to pay on a weekly basis, but could be helpful in another way. At a meeting with Thomas and Clark, Fontroy told Thomas that he could "set somebody up." The plan was that Thomas and Vortice would stop the person who Fontroy "set up" and take his drugs. The target of this plan was a man named Dave (David Drummond), a Jamaican whom Fontroy had bought drugs from previously. This conversation was taped by Fontroy. Some time later, Fontroy called Dave and told him he wanted ten pounds of marijuana. A week to a week and one-half later, Fontroy told Clark that Dave was coming through with the drugs. Later that same evening, Fontroy met with Thomas and Vortice at a Pizza Hut and told them the route that Dave would be traveling. This conversation was also taped by Fontroy.
¶5. Thomas and Vortice stopped "a guy" and, according to Clark, made Fontroy pay them $1,000 because they found nothing. According to Fontroy, following the Pizza Hut meeting, he observed blue lights at a traffic stop and subsequently, Thomas brought him approximately eight and one/half pounds of marijuana, for which he, Fontroy, was to pay $3,000, in addition to the $1,000 he already owed the officers. Fontroy paid the $3,000 to Thomas and some ten days later paid $1,000 to Thomas.
¶6. After the meeting where Fontroy paid the $1,000, Fontroy, Thomas, and Vortice discussed another set-up. The target of this set-up was a guy called "Cuz", whose real name was Edgar Dickerson. According to Fontroy, he was to sell Cuz four pounds of marijuana, evidently to be then stolen by Thomas and Vortice. Fontroy again taped this meeting.
¶7. According to Fontroy, he sold the four pounds of marijuana to Cuz, as planned. Fontroy then called Thomas to tell him what kind of car Cuz and another person were driving. Fontroy stated that later that night he met with Thomas and Vortice who gave him four pounds of marijuana for which he paid them $2,000. Both Cuz and Zenles Newby, the passenger in Cuz's car, stated that they were stopped by a trooper and an officer, who at gunpoint, took the four pounds of ...