Before Prather, C.j., McRAE And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: June 17, 1997
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. A Scott County jury found Anita White guilty of the sale of cocaine in violation of Miss. Code Ann. § 41-29-139(a)(1) (1972). The Honorable Marcus D. Gordon sentenced her to 15 years in the custody of the Mississippi Department of Corrections and fined her $5,000. Subsequently, White moved the trial court for a j.n.o.v. or, in the alternative, a new trial. From denial of said motion, White timely perfected an appeal to this Court seeking a reversal of the judgment and conviction of the trial court.
"I. REVERSIBLE ERROR EXISTS BECAUSE THE TRIAL COURT DID NOT PERMIT THE JURY TO HAVE THE TAPES INTRODUCED AS EVIDENCE DURING THEIR DELIBERATION. "II. APPELLANT SHOULD BE DISCHARGED BECAUSE OF THE FACT THAT THE VERDICT OF THE JURY AND JUDGMENT OF THE COURT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE LAW AND EVIDENCE AND NOT SUPPORTED BY ANY LAW OR EVIDENCE AND APPELLANT DID NOT RECEIVE A FAIR AND IMPARTIAL TRIAL. "III. THE COURT ERRED IN REFUSING INSTRUCTIONS REQUESTED BY THE APPELLANT."
¶2. On June 10, 1996, undercover agent Stanley Wash ("Wash") and Davon Spivey ("Spivey"), a confidential informant, went to Anita White's ("White") home in Scott County to purchase drugs. Spivey asked White if she had anything. White asked what they wanted, and Spivey replied that he wanted a "sixty" or a "double up" of cocaine, meaning double the amount of dope for the money. White told the men to wait a minute and she went inside her trailer returning a few minutes later with the cocaine. White handed Spivey the cocaine and Wash paid her the $60 for the cocaine. The substance which White gave to Spivey and Wash was determined by the Mississippi Crime Laboratory to be crack cocaine.
¶3. Prior to the undercover buy, Spivey was provided with a body mike and a transmitter. Jimmie Nichols ("Nichols") and Luis Hawkins ("Hawkins"), both undercover agents with the Mississippi Bureau of Narcotics, listened to the buy via the transmitter worn by Spivey. The entire transaction was recorded on a micro cassette. At trial, Wash identified the voice on the tape as that of White.
¶4. Nichols believed White's first name was Priscilla based on information provided to him by the Sheriff's Department. On the night of the buy, Spivey referred to White's first name as "Chelle" or Michelle. Based on this information, Nichols listed White's name as Michelle on the affidavit. Hawkins used the names of Michelle and Priscilla when referring to White in his reports.
¶5. White testified at trial that she did not go by the name of Michelle. She claimed that the agents had in fact purchased the drugs from a woman named Michelle Carr, who lived with White during the time period. White also testified that it was not her voice on the tape but rather that of Michelle Carr. Her defense at trial was that the agents had mistaken her for Carr. She also claimed to be at the casino with Will Hughes on the night of the buy. Neither Carr nor Hughes testified at trial. White denied ever having seen Wash and said she did not know Spivey.
¶6. Agent Wash participated in the subsequent arrest of White. First, the agents went to White's home, but Wash said that the woman who came to the door was not the person he had brought drugs from on the night in question. The agents then proceeded to King Lumber Company, White's place of employment, where Wash ...