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[T] Kraft v. State5/12/1998
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 07/12/96
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: SALE OF A CONTROLLED SUBSTANCE HABITUAL OFFENDER & SECOND & SUBSEQUENT DRUG OFFENDER: SENTENCED TO SERVE A TERM OF 60 YRS IN THE CUSTODY OF THE MDOC WITHOUT THE ELIGIBILITY OF PAROLE
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
Glen Kraft appeals his conviction of the sale of a controlled substance raising the following issues as error:
I. IT WAS ERROR AND CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, § 28 OF THE MISSISSIPPI CONSTITUTION OF 1890 FOR THE COURT TO SENTENCE KRAFT UNDER TWO ENHANCEMENT STATUTES, § NAMELY MISS. CODE ANN. 41-29-147 (REV. 1993) AND MISS. CODE § ANN. 99-19-81 (REV. 1994).
II. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT SUSTAIN THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE-IN-CHIEF AND AT THE CLOSE OF THE TRIAL.
III. THE COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING DEFENSE JURY INSTRUCTION D-1 WHICH WAS A DIRECTED VERDICT OF "NOT GUILTY."
IV. THE VERDICT OF GUILTY WENT AGAINST THE WEIGHT OF THE EVIDENCE AND WAS BASED ON BIAS AND PREJUDICE.
V. IT WAS ERROR FOR THE COURT TO GRANT ITS ORDER AMENDING THE INDICTMENT IN THIS CASE TO CHARGE KRAFT AS A SUBSEQUENT OFFENDER.
VI. IT WAS REVERSIBLE ERROR FOR THE COURT TO READ AN INSTRUCTION TO THE JURY SUA SPONTE WITHOUT ALLOWING THE DEFENDANT TO REVIEW SAME BEFORE IT WAS READ.
Finding no error, we affirm.
FACTS
On April 7, 1995, Officer Homer Kemp of the Wayne-Clark-Jasper Narcotics Task Force was working undercover with the Pearl River Basin Task Force. Supplied with a body transmitter, Kemp had gone to the house of Helen Ishee on Cola Street where he was to attempt to purchase drugs. When Kemp arrived he talked to Glen Kraft, who stated that Ishee was not home. Kraft inquired about what Kemp wanted. Kemp stated he had a "forty" ($40). Kraft pulled out two pieces of crack cocaine and asked Kemp if he wanted both pieces. Kemp responded in the affirmative and paid Kraft the $40. Kraft handed Kemp the two pieces of crack cocaine. Kemp got back in his vehicle and gave a description of Kraft over the body transmitter.
Officer Charlie Fazende of the Poplarville Police Department was "running surveillance" at the time of the buy. He listened to Kemp make the purchase and relayed Kemp's description of the suspect to Officer Danny Sellers of the Columbia Police Department. Sellers went out to Cola Street and positively identified Kraft from the description given.
Kraft was indicted for selling a controlled substance and charged as a second or subsequent offender and a habitual offender. After deliberations, the jury returned a verdict of guilty.
ANALYSIS
I.
IT WAS ERROR AND CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, § 28 OF THE MISSISSIPPI CONSTITUTION OF 1890 FOR THE COURT TO SENTENCE KRAFT § UNDER TWO ENHANCEMENT STATUTES, NAMELY MISS. CODE ANN. 41-29-147 § (REV. 1993) AND MISS. CODE ANN. 99-19-81 (REV. 1994).
Kraft had previously been convicted of burglary, forgery, and the selling of a controlled substance. Therefore, upon Kraft being found guilty in th
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