Before McMILLIN, C.j., King, P.j. And Diaz, J.
The opinion of the court was delivered by: King, P.j.
DATE OF JUDGMENT: 08/15/1997 TRIAL JUDGE: HON. JOHN H. WHITFIELD COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: APPELLANT SENTENCED TO SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
DISPOSITION: AFFIRMED - 4/6/99
¶1. Jerome Joseph Galloway was found guilty of the transfer of a schedule II controlled substance, cocaine, and subsequently sentenced to serve a term of sixty years, with fifteen years suspended, in the custody of the Mississippi Department of Corrections. Feeling aggrieved by both the conviction and sentence, Galloway has appealed and assigned the following as error:
1. THE EVIDENCE WAS INSUFFICIENT TO MAINTAIN A CONVICTION
2. THE JURY WAS IMPROPERLY INSTRUCTED REGARDING GALLOWAY'S PRIOR CONVICTION.
3. THE JURY WAS IMPROPERLY IMJUDGESED IN VIOLATION OF MISS. CODE ANN. § 13-5-25.
IV. THE JURY DID NOT FOLLOW THE COURT'S INSTRUCTIONS; BUT, INSTEAD ALLOWED THEMSELVES TO BE SWAYED BY THEIR OWN BIASES AND PREJUDICES BASED ON THE NATURE OF GALLOWAY'S CHARGES, HIS APPEARANCE, AND HIS PREVIOUS CONVICTION.
¶2. On July 23, 1996, at approximately 8:40 p.m., Hancock County law enforcement conducted a sting operation to make drug buys from street level dealers. Officer Richard Kelly made two undercover buys. On May 12, 1997, Jerome Joseph Galloway was indicted by the Hancock County grand jury for the sale or transfer of cocaine to an undercover officer, Officer Kelly.
¶3. During the trial of this matter, Detective Jeff Hair testified that he issued Officer Kelly a $20 bill. Detective Hair testified that the second buy was "unexpected" and that Officer Kelly used personal funds to purchase the drugs. Officer Kelly testified that he was issued $40 in official funds to make the buy. However, in his notes made after the buy, Officer Kelly indicated that he was issued only $20 in official funds. When cross-examined regarding this discrepancy, Officer Kelly responded that he was issued additional funds "in case on [his] way out that [he would be] stopped by another subject to make a purchase."
¶4. Officer Kelly made two buys on the night in question. Officer Kelly's vehicle was equipped with an infrared surveillance camera to record the transactions. The violator in the first sale could not be identified from the videotape.
¶5. Officer Kelly testified that he was flagged down by an individual in Bay St. Louis at the intersection of Washington and Old Spanish Trail where he made the second buy. Officer Kelly testified that Galloway approached the vehicle and Officer Kelly asked him for a "dove," i.e., crack cocaine. Galloway then entered the passenger compartment of Officer Kelly's vehicle, made the sale, and was dropped off by Officer Kelly further down Washington Street. Officer Kelly made an in-court identification of Galloway as the person from whom he made the buy.
¶6. Officer Kelly testified that he did not notice tattoos on Galloway's left arm and nose due to the darkness and because the dome light in his vehicle was purposefully disabled to prevent distortion of the infrared video surveillance.
¶7. Investigator Brett Ladner testified for the State that he also participated in the "buy/walk" *fn1 operation on the night of July 23, 1996. Investigator Ladner testified that he monitored Officer Kelly's buy over the transmitter. After the buy, Officer Kelly met the rest of the surveillance team at the predisclosed location at which time Investigator Ladner performed a field test on the substance, which tested positive for cocaine.
¶8. Investigator Ladner further testified that Galloway's brother, Kevin Galloway, was initially arrested in the roundup for the transfer. This mistake was discovered when Detective Tom Burleson noticed that Kevin was in jail and suggested that he was not the right person. Investigator Ladner subsequently provided Detective Burleson with the video and a still photograph of the buy. Upon review, Detective Burleson identified the violator as Kevin's brother, Jerome Galloway.
¶9. Detective Burleson testified that he had known the Galloways, Kevin and Jerome, for twelve years. Detective Burleson testified that he was at the jail because Jerome Galloway's probation officer asked him to pick Jerome Galloway up for a probation violation. While there, he noticed Kevin in a cell and inquired of him why had he been arrested, Kevin responded selling drugs. He immediately felt something was amiss because, "out of all the times dealing with [Kevin], [he] never dealt with him for dealing dope." He ...