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Gale v. State

Court of Appeals of Mississippi

September 5, 2017

JOHN GALE A/K/A NOOKIE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/04/2016

         WINSTON COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOSEPH H. LOPER JR.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          DISTRICT ATTORNEY: DOUG EVANS

          BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

          FAIR, J.

         FOR THE COURT:

         ¶1. John Gale was convicted of the sale of less than two grams of methamphetamine to a confidential informant and sentenced to eight years' imprisonment. The jury acquitted Gale of two other drug sale counts relating to a morphine pill and a Xanax (alprazolam) pill he was alleged to have sold at the same time. On appeal, Gale contends that the jury should have received a cautionary instruction on the testimony of confidential informants, and that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

         DISCUSSION

         1. Weight of the Evidence

         ¶2. Though presented as Gale's second issue, we will address this contention first to avoid repetition. Gale contends that his conviction was against the overwhelming weight of the evidence.

         ¶3. A new trial based on the weight of the evidence should be granted "only in exceptional cases in which the evidence preponderates heavily against the verdict." Bush v. State, 895 So.2d 836, 844 (¶18) (Miss. 2005) (citation omitted). "[T]he evidence must be viewed in the light most favorable to the verdict[.]" Jenkins v. State, 131 So.3d 544, 551 (¶23) (Miss. 2013). And because the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the trial, "reversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial." Waits v. State, 119 So.3d 1024, 1028 (¶13) (Miss. 2013).

         ¶4. Here, the State's evidence consisted largely of the testimony of a confidential informant, but it was also corroborated by the informant's wife and by video and audio recordings made by a hidden camera, which was disguised as a button on the informant's shirt. Prior to the buy, investigators from the sheriff's department met the informant and his wife. The informant and his wife were searched (the informant more thoroughly than the wife, as no female officer was available), as well as their vehicle, and then the ...


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