The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 03/28/97
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: WALTHALL COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. This appeal arose from a conviction of conspiracy to sell cocaine. Tyree Harris and Willie Magee were indicted for conspiracy to sell cocaine. Tyree Harris was indicted for sale of cocaine. Both were tried before a jury in the Walthall County Circuit Court. The jury returned a verdict of not guilty on the charge of sale of cocaine against Harris and verdicts of guilty for both Harris and Magee on the charge of conspiracy.
¶2. The court sentenced Tyree Harris to serve eighteen years, with the last two years on post release supervision and to pay a $5000.00 fine. The court sentenced Willie Magee to serve twelve years, with the last five years to be served on post release supervision and to pay a $5000.00 fine. ¶3.Both Harris and Magee timely appealed listing the following assignments of error.
I. WHETHER OR NOT THE CIRCUIT COURT JUDGE COMMITTED REVERSIBLE ERROR WHEN HE EXCLUDED EVIDENCE SUGGESTING THAT BARBARA VIRGIL HAD WORKED AS A PROSTITUTE
II. WHETHER OR NOT THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE ADMITTED THE TESTIMONY OF STANTON CRUMMEDY
III. WHETHER OR NOT CIRCUIT COURT JUDGE COMMITTED REVERSIBLE ERROR WHEN HE DENIED MAGEE'S MOTION FOR A DIRECTED VERDICT
IV. WHETHER OR NOT THE EVIDENCE REQUIRED A NOT GUILTY VERDICT
V. WHETHER OR NOT THE CIRCUIT COURT JUDGE COMMITTED REVERSIBLE ERROR WHEN HE DENIED HARRIS'S MOTION FOR NEW TRIAL.
¶4. Norman Goleman, a Metro Narcotics officer for Walthall County, set up a controlled cocaine buy using a confidential informant, Barbara Virgil. During the early morning hours of June 7, 1996, Goleman searched Virgil and Virgil's car and found no drugs or money. Goleman, Virgil and agent Craig Oster set out for Magee Badon Road to complete the buy. Goleman and Oster monitored Virgil's activities and the alleged buy, all of which were also recorded on audio tape. Goleman stated he had known both Harris and Magee for several years and could recognize their voices. Two other agents, Hicks and Vanderslice, recorded the transaction on video. The video and audio tapes were admitted into evidence.
¶5. Goleman testified to what he heard over the body transmitter worn by Virgil. *fn1 Magee approached Virgil's car and talked with Virgil. Virgil asked for Harris. In the course of conversation, Magee talked about someone in Silver Creek who had two thousand dollars worth of crack. Virgil continued to ask for Harris and at one point started to leave. Magee called Harris over. The two talked about drugs. A transaction took place and Virgil drove away.
¶6. Goleman testified he met Virgil at the post buy location where she gave him the crack cocaine she purchased. Goleman searched Virgil and found nothing. He testified Virgil had been given state funds to purchase the drugs. He also testified she was paid $150 for her work that night.
¶7. Goleman testified he packaged the crack cocaine and sent it to the Mississippi Crime Lab for testing.
¶8. On cross Goleman testified he sent Virgil out that night to buy from Harris and Magee's involvement was not expected. Goleman said from his observations, the audio tape and the video tape, Magee never touched any money or drugs.
¶9. Barbara Virgil testified she did not have any drugs or money in her possession before the buy took place. She testified she drove to Magee Badon Road and spoke with Magee. She asked Magee if anything was going on and Magee told her Harris had something. She and Magee talked for ten to fifteen minutes. Magee left the car to get Harris. Magee came back. Harris approached the car and sold her fifty dollars worth of crack.
¶10. During Virgil's testimony the audio and video tapes of the transaction were played for the jury. Virgil described the buy as it took place while the jury watched the video and heard the audio tape.
¶11. Stanton Crummedy testified he lived on Magee Badon road. He stated that he knew both Magee and Harris and that Magee would stop cars on Magee Badon Road and tell them "he know where the best stuff at." Magee would then take the people to Harris who would sell them cocaine.
¶12. On cross Crummedy failed to describe even one specific instance when Magee and Harris worked together to sell cocaine. He could not pinpoint a date or even a specific month when they worked together. He simply stated he knew they worked together. Crummedy also testified he was a cocaine user and at the time of the trial was charged with sale of cocaine. He further testified he had last used cocaine within two months of the trial.
¶13. Before Crummedy's testimony Magee objected to any testimony from Crummedy. The basis of Magee's objection was that Crummedy would not testify about the events of June 7, 1996, but rather would testify about other times he allegedly observed the defendants involved in drug activities. The State offered Crummedy's testimony to show a conspiracy existed. Because the conspiracy indictment stated the conspiracy occurred "on or before June 7, 1996", the trial Judge overruled the objection to Crummedy's testimony as to what took place on or before June 7, 1996, but sustained the objection as to what took place after June 7, 1996. After Crummedy's testimony the Judge instructed the jury that they were to disregard any testimony from Crummedy concerning events after June 7, 1996.
¶14. The State's final witness was Jacqueline Gardner. Gardner was accepted as an expert in the field of forensic science. Gardner testified she was employed by the Mississippi Crime Laboratory. She tested the substance sent to her by Agent Goleman and found it to be crack cocaine.
¶15. After the State rested, Magee and Harris moved for a directed verdict. The trial Judge denied both motions and defense proceeded with its case in chief.
¶16. Harris's sister, Shequita Holmes, testified Harris was one of seven people living in her house. Harris slept on her couch and kept his things in her bedroom. She stated if he had a quantity of cocaine in her house she would have known about it and he did not. Holmes testified Harris had no job, no car and never had more than ten or fifteen dollars at a time. She stated he was not a drug user or drug dealer.
¶17. Holmes stated she knew both Virgil and Crummedy and that she had seen both smoking crack. She testified she did not consider either Virgil or Crummedy to be truthful. Holmes stated she heard ...