Clemons v. State

482 So. 2d 1102
Mississippi Supreme Court·Decided December 18, 1985·No. 56217·Published·Cited by 27 cases

Opinion

482 So.2d 1102 (1985)

Albert CLEMONS and Norman Steele
v.
STATE of Mississippi.

No. 56217.

Supreme Court of Mississippi.

December 18, 1985.

*1103 Terry L. Jordan, Philadelphia, Ross R. Barnett, Jr., Jackson, for appellants.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Today we are presented consolidated appeals by two young men arising from November 30, 1983, sale of cocaine to an undercover narcotics agent. Each Defendant has already been separately convicted and sentenced to substantial prison terms and fines for a similar cocaine sale a day earlier, November 29, 1983, and for conspiracy to sell cocaine.

With respect to one of these Defendants, the evidence indicates without contradiction that he participated in the November 30 sale. The other, however, was nowhere to be found on November 30 and the conviction below is necessarily grounded in speculation, guesswork and surmise — if he was a part of the November 29 sale, he must have been a part of the November 30 sale. We affirm in the former instance. Emphasizing that nothing short of proof beyond a reasonable doubt may undergird a conviction of any crime, we reverse in the latter.

II.

A.

Shirlene Anderson, an investigator employed by the Mississippi Bureau of Narcotics, had been working undercover in the Starkville area purchasing drugs. On or about October 26, 1983, she met Chris Hoskin and Robert Griffin, two of the original co-indictees in this cause. During the course of this acquaintance, Anderson made arrangements with Hoskin and Griffin to purchase some drugs in November. On the 29th of said month, Anderson, one Reginald Gage (another undercover agent whom Anderson had introduced as her brother), Hoskin and Griffin traveled to Philadelphia, Mississippi, to make the purchase. When they arrived at Philadelphia, Hoskin and Griffin led Anderson and Gage to the Hillcrest Apartment Complex where they met with Albert Clemons and Norman Steele. This meeting took place in Apartment 24, the residence of Norman Steele and Gloria Griffin, a/k/a Bridget Griffin and on that occasion Anderson make a cocaine purchase from Clemons and Steele.[1] The cocaine was in a clear plastic bag on the dresser located in the bedroom. Steele had supplied this packaging.

On this same date, November 29, Anderson had a conversation with Albert Clemons in the bedroom of said apartment about the possibility of a future cocaine purchase. Norman Steele was present during this conversation. Anderson inquired about buying the cocaine the next day. Clemons quoted some prices to Anderson and told her to get in touch with him if she was interested.

Anderson returned the next day, November 30, 1983, and present in the apartment when she arrived were Gloria a/k/a Bridget Griffin, Hoskins and Robert Griffin. Clemons later joined them. Steele was nowhere to be found. Agent Gage was sitting in a car outside as he had done the previous day.

*1104 Anderson, Clemons and Hoskin again went into the bedroom. Anderson told them she was ready to buy the six ounces of cocaine. Clemons removed a clear plastic bag containing the cocaine from a Bell Telephone envelope, gave it to Anderson to inspect and proceeded to weigh it. Clemons told Anderson it was three grams more than she wanted and then proceeded to remove the three grams. After Anderson returned to the living room area, an unknown black female entered the apartment and informed them that there were cops in the area of the apartment complex. Anderson eventually left the apartment on the pretext of going to get the money from the car.

Before she could get to the car, Hoskin came out of the apartment and told her to wait. He said that he had received information that there were law enforcement personnel in the area and, therefore, they should change locations to complete the transaction.

Clemons got into a black pickup truck and asked them to follow him. They drove for a while along a road in Philadelphia until they stopped and proceeded to effect the sale. Clemons gave the package containing the cocaine to Reginald Gage. As Anderson was about to give Clemons the money, Gage arrested him. The other alleged accomplices, including Norman Steele, were arrested at the apartment. At no time on November 30 prior to the arrest was Defendant Steele present in the apartment, but the apartment was his.

B.

The State of Mississippi has mounted three separate prosecutions of Albert Clemons and Norman Steele.

First, Steele and Clemons were indicted and prosecuted in the Circuit Court of Oktibbeha County for conspiracy to distribute cocaine on November 30, 1983, in violation of Miss. Code Ann. § 41-29-139(b)(1) (Supp. 1985). Steele has been convicted of this offense upon a plea of guilty.

Second, Steele and Clemons were indicted and prosecuted in the Circuit Court of Neshoba County for sale of cocaine on November 29, 1983. Each has been found guilty by a circuit court jury. Clemons has been sentenced to 30 years imprisonment and to pay a fine of $25,000. Steele has been sentenced to 25 years imprisonment and to pay a fine of $20,000. Each of these convictions and sentences was affirmed by this Court on October 9, 1985. Clemons v. State, 477 So.2d 943 (Miss. 1985). Petitions for rehearing were denied November 6, 1985.

Third, the instant prosecution was formally commenced on February 7, 1984, when the Neshoba County Grand Jury returned an indictment charging Clemons, Steele and three others with the November 30, 1983, sale of cocaine to Shirlene Anderson for the alleged sum of $11,100.00. The case proceeded to trial on October 23, 1984, at the conclusion of which the jury found both Clemons and Steele guilty of sale of cocaine. Clemons was thereupon sentenced to ten years imprisonment, while Steele received an eight year sentence. These consolidated appeals have followed.

III.

The first assignment of error concerns Norman Steele only. Appellant Steele challenges the sufficiency of the evidence to support his conviction of the November 30 sale of cocaine. In so doing, he appeals the trial judge's denial of his motion for a directed verdict made at the conclusion of the State's case, his request for a peremptory instruction and his post-trial motion for judgment of acquittal notwithstanding the verdict.

Steele was not present at the time of the November 30 sale. There is no evidence that he took any direct part in that sale. The State, however, argues that Steele was an accessory before the fact and as such is guilty as a principal. Miss. Code Ann. § 97-1-3 (1972).

It is settled law that substantial knowing participation in the consummation of a sale or in arranging for the illegal sale of unlawful controlled substances may render *1105 one guilty of such sale and that one who aids and abets another in such a context is guilty as a principal. Minor v. State, 482 So.2d 1107, 1112 (Miss. 1986); Williams v. State, 463 So.2d 1064, 1066 (Miss. 1985); Sanders v. State, 439 So.2d 1271, 1275 (Miss. 1983); McGowan v. State, 375 So.2d 987, 990 (Miss. 1979); Washington v. State, 341 So.2d 663, 664 (Miss. 1977); Landers v. State, 304 So.2d 641, 642 (Miss. 1974).

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