Before Prather, C.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 05/21/97
TRIAL JUDGE: HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/15/98
MOTION FOR REHEARING FILED:
¶1. A Lauderdale County grand jury indicted defendant, Steven (Stevie) T. Ott, on three counts: (1) sale of less than one ounce of marijuana; (2) sale of less than one ounce of marijuana as part of a common plan or scheme or as part of the same transaction or occurrence; and (3) possession of over one ounce of marijuana with the intent to sell. Officers with the Meridan Police Department and the Mississippi Bureau of Narcotics testified the two alleged sales took place in the parking lot of a Meridian McDonalds approximately seven hours apart. After the second alleged sale, Ott was arrested after a brief car chase. Officers recovered a brown case *fn1 and several bags of marijuana from a road side where the items were allegedly thrown by Ott during the car chase. The trial Judge denied Ott's motion to sever the charges and try Counts II and III separately. Trial was held in Lauderdale County Circuit Court on April 10 and 11, 1997. The jury convicted Ott on all three counts on April 11, 1997. The trial Judge sentenced Ott to a $1000 fine and three years with one year suspended on Count I, a $1000 fine and three years with one year suspended on Count II, and a $1000 fine and ten years with six years suspended and five years probation on Count III. All sentences were to be served consecutively. After Ott's motion for JNOV/new trial was denied on June 5, 1997, Ott timely appealed to this Court assigning three errors:
I. THE ACTIONS OF THE COURT IN ALLOWING THE STATE TO TRY THE APPELLANT ON TWO SEPARATE CHARGES OF SALE OF MARIJUANA BEFORE THE SAME JURY RATHER THAN SEVER SUCH CHARGES WAS AN ABUSE OF DISCRETION
II. THE ADMISSION OF EVIDENCE OVER THE OBJECTION OF THE APPELLANT TO THE FAILURE OF THE STATE TO COMPLY WITH SECTION 41-29-501 THROUGH SECTION 41-29-537 DEALING WITH THE INTERCEPTION, RECORDING, AND ADMISSIBILITY OF ORAL COMMUNICATIONS WAS ERROR
III. THE ADMISSION OF EVIDENCE OBTAINED DURING AN IMPROPER SEARCH WAS ERROR
¶2. Mississippi Bureau of Narcotics Agent, Chris Bishop testified on September 5, 1997, that he arranged with MBN agent, Leigh Harvey and a Confidential Informant (CI) to set up a controlled drug buy from Ott. Bishop testified he met with Harvey, the CI and another MBN agent, Jimmy Nichols, in a pre-buy meeting the morning of September 6, 1997. At this meeting Harvey was equipped with a hidden "code ten transmitter" to transmit any conversations she had with the informant and Mr. Ott during the alleged buy. Harvey was also given $100 in state funds to purchase marijuana. Agent Nichols searched the CI and found nothing. The CI paged Ott and as a result the participants then left the pre-buy meeting with Harvey and the CI leaving in one vehicle and Bishop and Nichols following in another. Ott's attorney objected to any testimony concerning the "wire" worn by Agent Harvey. Outside the presence of the jury, Ott's attorney argued sections 41-29-501 through 41-29-536 of the Mississippi Code prohibit the use of communications recorded without the consent of the parties involved in the conversation. After Discussion and an offer of proof by the State to show the State had the consent of the CI, the Judge overruled Ott's objection and granted him a continuing objection to all testimony derived from the use of the transmitter.
¶3. Bishop further testified he and Nichols followed Harvey and the CI to a McDonalds parking lot. Bishop and Nichols waited and watched from a nearby lot while Harvey and the CI parked in the McDonalds lot. Harvey testified about ten minutes after she and the CI arrived, Ott drove into the McDonalds parking lot in a cream colored Buick Regal.
¶4. Harvey stated Ott got out of his car and walked to the car in which she and the CI were sitting and spoke with the CI. Harvey said after they were introduced, the CI asked Ott, "How much for an ounce?" Ott told them to get in his car. Harvey got out of her car and got in Ott's car, where Ott allegedly pulled out a brown case containing three bags of marijuana. Harvey testified she purchased one bag of marijuana from Ott and paid $100 in state funds. Harvey stated she got out of Ott's car, got back into her car and watched Ott drive away.
¶5. Agents Bishop, Harvey and Nichols testified they held a post-buy meeting with the CI after the alleged buy took place. At the post buy meeting Agent Harvey reported to Agent Bishop what she had allegedly seen in Ott's car. Agent Bishop testified Agent Harvey's statements were consistent with what he had heard transmitted from Agent Harvey's body wire and with what he saw through his binoculars during the alleged buy.
¶6. Later that day, Agent Bishop worked with another informant, Marlon Knox. Knox told Bishop he knew Ott and could buy marijuana from him. Knox also told Bishop about a brown case Ott carried with several bags of marijuana and that he could page Ott to set up a buy. Bishop testified Knox's statements were consistent with what he had learned from Agent Harvey earlier in the day and based on this information Bishop decided to set up another buy from Ott using Knox.
¶7. Knox testified at a pre-buy meeting that he and his vehicle were searched and he was outfitted with a body wire. Knox called Ott's pager number and set up a meeting at the same McDonalds. Alone, Knox drove to the McDonalds parking lot where he met Ott. Agent Bishop testified he and Agents Stanley Wash and Alan Anderson followed in Agent Anderson's van and parked approximately 75 to 100 yards away to observe and listen to the transmitted conversations. Bishop also testified he asked Police K-9 Officer Ricky Roberts to participate in anticipation of using a drug dog to search Ott's car. Roberts parked next to Anderson's van and testified he could hear the transmission from Knox's body wire, but he could not understand everything said. Ott's attorney renewed his objection to any evidence related to the content of the wire transmission.
¶8. Knox testified Ott drove to McDonalds in a Regal and parked. Knox then got out of his car and got into the front passenger seat of Ott's car. Knox then asked Ott, "did he have any bud, and he said yes." Knox stated Ott took out a brown case and from which Ott got a bag of marijuana. Knox stated he paid Ott $100 in state funds for the bag. Knox then stated he took the marijuana, got back into his car, drove to the Task force office, turned the bag over to Agent Bishop and left.
¶9. Agent Bishop testified he heard the conversation and the alleged transaction take place through the transmission. He said when Ott drove away, he sent Officer Roberts to follow for a while and then to make a "traffic stop" so Ott would not suspect Knox had been involved in a controlled buy. Agents Bishop, Wash and Anderson watched as Officer Roberts drove away. Officer Roberts radioed he stopped Ott's car.
¶10. Officer Roberts testified Ott failed to use a turn signal at the intersection of Valley and 47th streets so he made a traffic stop. Officer Roberts then testified when he stopped Ott's car, Ott got out and walked back toward Roberts's car. Officer Roberts told him to turn his engine off, but when Ott got back in his car, he sped away. Agent Bishop testified Roberts radioed for help in pursuit and the three agents in Agent Anderson's van took out after Ott and Officer Roberts.
¶11. Officer Roberts testified during the chase, Ott threw something from the window. Roberts radioed the location where Ott threw the item out back to the Agents in the van. Ott then stopped his ...