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Proby v. State

December 30, 1998

JERMAINE PROBY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Coleman, And Hinkebein, JJ.

The opinion of the court was delivered by: Thomas, P.j., For The Court:

DATE OF JUDGMENT: 01/06/1997

TRIAL JUDGE: HON. FORREST JOHNSON

COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT

DISTRICT ATTORNEY: RONNIE LEE HARPER

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: 01/06/1997: SALE OF A SCHEDULE II CONTROLLED SUBSTANCE - COCAINE. SENTENCED TO SERVE A TERM OF 30 YEARS.

¶1. Jermaine Proby appeals his conviction of sale of cocaine, raising the following issues as error:

I. THE TRIAL COURT ERRED IN DENYING PROBY'S MOTION FOR A CONTINUANCE.

II. THE TRIAL JUDGE ERRED IN FAILING TO RECUSE HIMSELF UPON MOTION OF PROBY.

III. THE VERDICT OF THE JURY WAS NOT UNANIMOUS AS ONE JUROR INDICATED THAT IT WAS NOT HER VERDICT DURING THE JURYPOLL.

IV. THE TRIAL COURT ERRED IN ALLOWING THE STATE'S WITNESSES TO TESTIFY WHEN THE LIST OF WITNESSES WAS NOT FURNISHED TO DEFENSE AS REQUIRED BY THE RULES, OR IN THE ALTERNATIVE, NOT GRANTING PROBY'S MOTION FOR A CONTINUANCE.

V. THE TRIAL COURT ERRED IN SUSTAINING OBJECTIONS MADE BY THE STATE DURING THE CROSS-EXAMINATION OF THE CONFIDENTIAL INFORMANT, JOHN DELAUGHTER.

VI. THE TRIAL COURT ERRED IN FAILING TO STRIKE THE TESTIMONY OF AGENT KYLE WILSON AS IT WAS CLEARLY TAINTED IN VIOLATION OF THE WITNESS RULE.

¶2. Finding no error, we affirm.

FACTS

¶3. On June 21, 1996, Richard Jones, an officer of the Natchez Police Department and an agent of the Metro Narcotics Task Force, attended a pre-buy meeting with Kyle Wilson, another officer of the Natchez Police Department and an agent of the Metro Narcotics Task Force. Also present at this meeting was John Adrian DeLaughter, a confidential informant employed by the Task Force. This meeting was arranged to specifically target street level drug dealers in the area of Hutchin's Landing Road and Lower Woodville Road, in Natchez, Mississippi. The Task Force specifically targeted a club in the area known as the Ponderosa Club.

¶4. DeLaughter and his vehicle were searched by Agent Wilson. DeLaughter was given $70 in marked currency. Agent Jones installed video and audio equipment in DeLaughter's vehicle. In this way the agents could hear any conversations taking place in or near DeLaughter's vehicle plus a video recording would be made of anyone coming up to the driver's side of DeLaughter's vehicle. The two agents followed behind in their own vehicle as DeLaughter drove to the area in question. As the agents waited in the parking lot of an old service station, DeLaughter proceeded on to the Ponderosa Club. However, since no one was at the club, DeLaughter met back up with the agents. The decision was made that DeLaughter would travel north on Lower Woodville Road and try to purchase drugs in that area.

¶5. As DeLaughter traveled on Lower Woodville Road, he recognized Jermaine Proby on the side of the road standing next to a house. DeLaughter stopped and told Proby he wanted to purchase $50 worth of crack cocaine. Proby informed DeLaughter that he would have to go back to his house to get the crack cocaine. An arrangement was made where Proby and DeLaughter would meet at the corner of Lower Woodville Road and Cloverdale Road. DeLaughter arrived first at the designated area. He waited about ten minutes before Proby showed up. Proby handed DeLaughter the crack cocaine, and DeLaughter gave Proby $50. Proby insisted on $70 for the crack cocaine. DeLaughter gave him another $20 and drove away.

¶6. DeLaughter drove to Agent Wilson's house. The agents retrieved the crack cocaine and the videotape. Several weeks later an indictment was handed down against Proby. The indictment charged Proby with the sale of cocaine, enhanced by selling in a church zone, enhanced by a second subsequent offense, and further enhanced as a result of recidivism. Proby was thereafter arrested and tried on November 26, 1996.

¶7. Before the jury was selected, Proby made a motion for the trial Judge to recuse himself. Proby alleged that a conflict existed as the trial Judge was still working for the district attorney's office when Proby was convicted of a charge upon which the State relied for enhancement under both the second subsequent offender and recidivism statutes. The State decided to drop the habitual offender portion of the indictment and asked for leave to amend the indictment to charge Proby as a second subsequent offender not with the offense originally charged in the indictment, but with an offense in which the trial Judge was no way involved. The motion to amend was taken under advisement but was eventually denied during sentencing. The case then proceeded to trial.

¶8. At the close of the State's case Proby made a motion for a directed verdict. The motion for directed verdict was granted with respect to the sale of cocaine within 1500 feet of a church. Proby did not testify, and the defense rested. Proby was found guilty of selling a controlled substance and sentenced with no enhancements to thirty years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Proby effectuated this appeal.

ANALYSIS

I.

THE TRIAL COURT ERRED IN DENYING PROBY'S MOTION FOR A CONTINUANCE.

¶9. Proby filed a motion for a continuance the day before trial based largely upon an inadequate time to prepare for trial and specifically that since the defense was not given access to the video shot the night of the buy until five days before trial more time was needed to prepare a defense. A pre-trial hearing was held taking up the motion. At the hearing, Proby protested the fact that despite diligent effort the tape was not seen by the defense until five days before trial. Furthermore, that upon seeing the tape the defense needed more time to make a motion to suppress the tape, to make a motion to limit irrelevant things on the tape, and to measure the distance from where the buy took place to the church. The continuance was denied, but the trial Judge promised to exclude any type of "loose" conversation on the tape. Proby now argues that the trial Judge abused his discretion in not granting the continuance. Proby asserts that he was only given one opportunity to view the video tape some five days before trial despite discovery requests filed more than two months before trial.

According to Proby, the failure of the State to allow complete access to the tape and in a timely manner greatly prejudiced his ability to prepare a defense, especially to the charge of the sale of a controlled substance within a church zone.

¶10. Miss. Code. Ann. § 99-15-29 (Rev. 1994) provides that a court "may grant or deny a continuance, in its discretion," and that a denial of a continuance "shall not be grounds for reversal unless the Supreme Court shall be satisfied that inJustice resulted therefrom." In order for us to reverse, Proby must show that a manifest inJustice resulted from the denial of the continuance. Lambert v. State, 654 So. 2d 17, 22 (Miss. 1995). Also, under URCCC 9.04(I) if evidence has not been timely ...


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