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White v. State3/7/2000
DATE OF JUDGMENT: 11/06/1997
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:COPIAH COUNTY CIRCUIT COURT
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY: ALEXANDER C. MARTIN
NATURE OF THE CASE: CRIMINAL - FELONY
11/05/1997: UNLAWFUL SALE OF COCAINE WITHIN 1500 FEET OF A CHURCH: SENTENCED TO SERVE A TERM OF SIXTY YEARS WITH THE MDOC
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 08/17/1999
MOTION FOR REHEARING 11/01/1999; AFFIRMED IN PART AND REVERSED AND FILED: REMANDED IN PART - 03/07/2000
ON MOTION FOR REHEARING
EN BANC.
The original opinion is withdrawn and the following is substituted therefor. The motion for rehearing is denied.
PROCEDURAL HISTORY
Michael White was convicted in the Copiah County Circuit Court of one count of sale of cocaine in violation of Miss. Code Ann. § 41-29-142 (Rev. 1993). Since White was also convicted of selling cocaine within 1,500 feet of a church in violation of Miss. Code Ann. § 41-29-139 (Rev. 1993), the trial judge gave White a sixty-year sentence. In our original opinion we affirmed White's conviction, but reversed his sentence in light of the Mississippi Supreme Court decision of Davis v. State, 724 So. 2d 342 (Miss. 1998). In this modified opinion, we do the same.
FACTS
On December 17, 1996, Levon Turner, an informant acting undercover for the Hazlehurst Police Department, engaged in a purchase of crack cocaine from Michael White. Prepared for an undercover purchase of drugs with county money and wired with a body microphone by Officer Ron Crew, Turner had a prebuy meeting with Crew and Officers Keith Mangold and Chris Stanley. Turner was searched by Crew to make sure there was no contraband on his person.
Officer Crew drove Turner to a street corner near the targeted area and dropped Turner at that location. When Turner left Crew's automobile, Turner did not stay in Crew's sight for very long, but Crew testified that he was able to provide auditory surveillance. Officers Mangold and Stanley did not maintain visual surveillance, but were close to the location to provide backup.
Turner testified that he went to an apartment where he found Michael White and asked him what he could get for thirty-five, and White replied he could get two for forty, meaning two rocks of cocaine for forty dollars. The exchange was made, and Turner returned to Crew's vehicle where he gave Crew two rocks of crack cocaine. Turner then returned to the police station with the officers. After returning to the police station, Officer Mangold searched Turner and found crumbs of cocaine in Turner's left coat pocket.
During the State's case-in-chief, the distance between the apartment and church of 700 feet, was established through measurement of the distance by Officer Crew who had worked as a surveyor in the 1970's and 1980's.
The defense placed several witnesses on the stand who testified that White did not live in the apartment where the crack cocaine was sold. Also, George Turner, the confidential informant's brother, testified for the defense. George Turner testified that his brother had used drugs, and had been committed to a rehabilitation clinic and to the State Mental Hospital. He testified that in his opinion his brother was not a truthful person.
After deliberating, the jury found White guilty as charged.
ARGUMENT AND DISCUSSION OF THE LAW
STANDARD OF REVIEW
White raises three issues for this Court's review: (1) the trial court was i
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