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Ware v. State

Court of Appeals of Mississippi

April 23, 2019

DAVID WARE A/K/A DAVID WAYNE WARE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/23/2018

          CHICKASAW COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. JOHN ANDREW GREGORY TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE

          BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.

          BARNES, C.J.

         ¶1. David Ware was indicted for the sale of a controlled substance under Mississippi Code Annotated section 41-29-139(a) (Rev. 2009) in the Chickasaw County Circuit Court. After a one-day trial, he was convicted and sentenced to thirty years, with ten years suspended, in the custody of the Mississippi Department of Corrections (MDOC). Ware appeals, claiming the trial court erred in failing to apply the ameliorative amendments of section 41-29-139(b)(1)(A) for his sentencing, which became effective in July 2014, prior to his trial. Under the amended statute, Ware would have been sentenced only to eight years. Ware also argues the trial court erred in denying a cautionary jury instruction regarding the testimony of confidential informants. Finding no error, we affirm.

         FACTS

         ¶2. In May 2013, Chief Deputy Keith Roberson of the Chickasaw County Sheriff's Office conducted an undercover drug buy in Okolona, Mississippi, with confidential informant Allen Hunter. Prior to meeting with Roberson, Hunter called Ware to buy some crack cocaine. During the "pre-buy" meeting with Roberson, Hunter was thoroughly searched, and a video camera was hidden in his vehicle to capture the sale. Roberson gave Hunter $60 to purchase the drugs.

         ¶3. At Ware's trial, the videotape of the transaction was entered into evidence and played for the jury. Ware called Hunter to come over because "Boss," the drug dealer, was ready for them. Hunter picked Ware up at his apartment. Ware got into the vehicle while on the phone with Boss. Hunter drove to the Townhouse Apartments and gave Ware the $60. Ware told Hunter to circle the block. Ware went into the apartments. During this time, Hunter was speaking to Roberson on an open-line cell phone in his vehicle. Hunter returned to the apartments as Ware was walking out. Ware got in the vehicle and attempted to hand Hunter the crack cocaine. Hunter told Ware to hold it down in an attempt to get the drugs on camera. Ware then handed Hunter three unbagged rocks of crack cocaine. Hunter drove Ware back to his apartment and returned to the post-buy location.

         ¶4. During the post-buy meeting, Hunter gave Roberson the drugs and recording equipment. Roberson searched Hunter again and paid him $100 for the work. Hunter testified that he did not know Boss's name and that Boss would not sell drugs to him because Boss did not trust him. Roberson sealed the drugs in an evidence bag and sent the bag to the Tupelo Crime Lab. A forensic analyst tested the drugs and determined the three substances consisted of 0.49 grams of crack cocaine.

         ANALYSIS

         I.Senten ...


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