Before Pittman, P.j., Smith And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice
DATE OF JUDGMENT: 02/28/97
TRIAL JUDGE: HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED: PRENTISS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/17/1998
¶1. On March 11, 19 96, Booneville Police Department officers working in cooperation with the North Mississippi Narcotics Task Force and confidential informant Patrick McGee purchased "crack cocaine" on two separate occasions from Frederick Ragin. Each sale occurred at a private residence located within 1500 feet of an elementary school.
¶2. Ragin was indicted in the Circuit Court of Prentiss County on two counts of the sale of a Schedule II controlled substance within 1500 feet of an elementary school in violation of Miss. Code Ann. § 41-29- 142(1). On February 26, 1997 a jury convicted Ragin on both counts. As to Count I, Ragin was sentenced to serve thirty (30) years in the Mississippi Department of Corrections with fifteen (15) years suspended and an additional $1,000.00 fine. As to Count II, Ragin was sentenced to serve thirty (30) years in the Mississippi Department of Corrections with fifteen (15) years suspended. The sentences are to run concurrently. The lower court denied Ragin's motion for a new trial and/or judgment for acquittal notwithstanding the verdict. Aggrieved, Ragin assigns the following issues for review by this Court:
I. WHETHER THE LOWER COURT ERRED IN ADMITTING INTO EVIDENCE TWO AUDIO TAPES AND CORRESPONDING TRANSCRIPTS OF THE ALLEGED NARCOTICS SALE.
II. WHETHER THE LOWER COURT ERRED IN DENYING RAGIN'S MOTION FOR MISTRIAL FOLLOWING THE TESTIMONY OF SHERIFF LEWIS TYNES.
III. WHETHER THE LOWER COURT ERRED IN ALLOWING INTO EVIDENCE TESTIMONY CONTAINING AN INCRIMINATING STATEMENT MADE BY RAGIN SUBSEQUENT TO HIS ARREST.
IV. WHETHER THE LOWER COURT ERRED IN DENYING JURY INSTRUCTIONS D-4, D-5, D-6, D-7, AND D-9.
I. THE LOWER COURT DID NOT ERR IN ADMITTING TWO AUDIO TAPES AND CORRESPONDING TRANSCRIPTS CONCERNING THE NARCOTICS SALE.
¶3. We have announced that the prosecution must prove the recordings are relevant pursuant to Miss. R. Evid. 401 as well as authentic as required by Miss. R. Evid. 901 before they are deemed admissible.
¶4. In Middlebrook v. State, 555 So. 2d 1009 (Miss. 1990) we held the prosecution is required to lay a substantial predicate before a tape recording may be received into evidence. First, the recording must pass the relevancy test of Rule 401; i.e., it must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Miss. R. Evid. 401. As stated in Middlebrook, "[t]he mere fact that portions of such a recording are inaudible does not render it per se inadmissible. *fn1 The question is whether what can be heard has probative value within Rule 401." Middlebrook, 555 So. 2d at 1012. Upon listening to the recordings at issue, we found the recordings mildly discernable. However, when accompanied by the transcript outlining the conversation, it is clear that the recordings at least provide the name of the defendant which is probative of whether Fred Ragin was involved in the sale of narcotics.
¶5. In Stromas v. State, we considered the admissibility of tape recordings depicting an alleged sale of cocaine very similar to that in the instant case. Regarding relevancy, Chief Justice Prather stated:
"Certainly a tape recording of the alleged drug transaction is relevant. See Miss. R. Evid. 401. The tape's admission makes the drug transaction more likely to have taken place. See Butler [v. State], 592 So. 2d , 984 ...