Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court
DATE OF JUDGMENT: 02/14/97
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: NOEL D. CROOK
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 9/10/98
¶1. The appellant, Calvin White a/k/a "Tweety Bird," was indicted by the Holmes County Grand Jury on three counts of sale of cocaine pursuant to Miss. Code Ann. § 41-29-139(a)(1)(1994). Subsequently, capias was served on White. Later, he was arraigned, at which time he entered a not guilty plea.
¶2. On the day of the trial, White filed a Motion in Limine and Motion to Suppress certain evidence. The trial court denied the motions. A jury of his peers found the appellant not guilty of Count I, but he was found guilty of Count II and Count III. Circuit Court Judge Jannie M. Lewis sentenced White to a term of ten (10) years on each count in the custody of the Mississippi Department of Corrections to run concurrently. White's Motion for a New Trial or alternatively a j.n.o.v. was denied by the Circuit Court.
¶3. Four issues are raised on appeal to this Court:
I. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS STATE'S EXHIBIT 2 AND 4--COCAINE-- ON THE GROUNDS THAT THERE WERE BREAKS IN THE CHAIN OF CUSTODY?
II. WHETHER THE CIRCUIT COURT ERRED IN THE DENIAL OF THE DEFENDANT'S MOTION TO EXCLUDE STATE'S EXHIBIT 3--VIDEOTAPE?
III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL ON THE GROUNDS THAT THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE?
IV. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING, SUA SPONTE, A CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF THE CONFIDENTIAL INFORMANT?
¶4. The appellant, Calvin White, sold.3 gram of crack cocaine to Ross Kyzer, a confidential informant. Kyzer met with Narcotics Task Force Agents, Al Jobe and Andy Ledbetter and was given $100 in state funds to purchase crack cocaine from a willing seller in Pickens, Mississippi.
According to Mr. Jobe and the informant, the pre-buy meeting took place at 12:00 p.m. Then the informant left for Pickens at 12:33 p.m. At 12:52 p.m. a $40 sale was made and eight minutes later another sale was made. Both transactions were videotaped.
¶5. Based on the report, the appellant, seen on the videotape, was wearing blue jeans, blue shirt, tennis shoes, and red and blue cap at the time of the first sell. Eight minutes later, at the time of the second sell, he was seen on videotape wearing black pants, black cap, black shoes, and a white shirt. The appellant's counsel argued in trial that the clothing differences should make one doubt that both sales were conducted by the same man. However, Alvin Jobe, one of the narcotics officer, fully explained the differences in clothing in such a short time frame: We've had it happen in the past when we've conducted an investigation like this that the person may realize or believe that they've sold to an undercover, and they go and change clothes for that purpose. We've had it happen on several occasions and in less than eight minutes like it was in this case.
¶6. At the close of the State's case-in-chief, White's motion for a directed verdict was overruled. The State produced James Lee as a rebuttal witness who, much like Kyzer, the informant, ...