Cooper v. State

628 So. 2d 1371, 1993 WL 510896
CourtMississippi Supreme Court
DecidedDecember 9, 1993
Docket91-KA-0889
StatusPublished
Cited by11 cases

This text of 628 So. 2d 1371 (Cooper v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. State, 628 So. 2d 1371, 1993 WL 510896 (Mich. 1993).

Opinion

628 So.2d 1371 (1993)

David Lee COOPER
v.
STATE of Mississippi.

No. 91-KA-0889.

Supreme Court of Mississippi.

December 9, 1993.

Martin A. Kilpatrick, Greenville, for appellant.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr., and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

David Cooper, indicted, tried, and convicted in the Circuit Court of Washington County *1372 for the sale of cocaine, was sentenced to serve 30 years in the Mississippi Department of Corrections. Because the trial judge's exclusion of proffered evidence was reversible error, the cause is reversed and remanded for a new trial.

On November 27, 1990, Michael Diggs (Diggs), a paid confidential informant working as part of the special operations unit of the Greenville Police Department, fitted and equipped with a body wire transmitter, and furnished a $20 bill, embarked on a mission to purchase illegal drugs and secure evidence of the transaction. Two officers of the unit, Herbert Partlow (Partlow) and Earnest Blackley (Blackley), accompanied Diggs in a vehicle to his point of departure near the scene of the proposed drug purchase. They monitored the venture on their receiver. Diggs returned shortly with a small amount of cocaine and absent the $20. He accompanied the officers via their vehicle to the scene of the alleged drug purchase and pointed out Cooper as the culprit who made the sale. No arrest was made in order to protect the anonymity of Diggs while he purchased drugs from others. Cooper was arrested approximately five weeks later when the "roundup" of alleged violators occurred. At the time of his arrest, Cooper had no marked money or any other physical evidence in his possession linking him to the transaction.

Cooper requested and was granted a preliminary hearing. The case was dismissed. Cooper's case was subsequently presented to a grand jury resulting in an indictment.

At trial, the State based its case exclusively on the confidential informant's testimony. Officer Blackley testified:

Q Now officer, ... what we're talking about basically is the only eyewitness to this case being Diggs?
A Yes, sir.
Q No doubt about it?
A Right.

The State made no attempt to show voice identification of Cooper by use of the recorded sales transaction.

On cross-examination, Officer Partlow, when questioned about an investigation of Diggs relative to the disappearance of cocaine and money during the Greenville operation, testified:

Q During the time that Michael Diggs was there, is it not true that some cocaine and money came up missing from the special operations unit of the Greenville Police Department... .
A While he was there?
Q While he was working with the special operations unit?
A Oh, ... yeah, it did.

Diggs denied that he was the only person suspected of taking the missing drugs.

Cooper sought to impeach Diggs' credibility through testimony of Major Kenneth Winter, Chief of Criminal Investigations in the Greenville Police Department. The State objected to Major Winter's testimony on the ground that the issue of Diggs' truth and veracity was not properly before the court. Cooper then made the following proffer of Winter's testimony outside the jury's presence:

Q What's your job sir?
A I'm Chief of Criminal Investigations with the Greenville Police Department.
Q How long have you been with the Greenville Police Department, altogether?
A About fifteen years.
Q How long as Chief of the criminal division?
A A little over two years.
Q Sir, in your capacity of the Chief of the Criminal Division did you have occasion to become involved in investigations of certain drugs and money that were allegedly stolen or missing from the special operations unit?
A Yes I did.
Q Now when did that investigation begin, approximately, and when did it conclude, approximately?
*1373 A It began on December 26.
Q 1990?
A 1990. And it was concluded around the first of March of '91.
Q Now during that time period there were a number of people that were in the special operations units that were originally under investigation. As a matter of fact, everybody that was in there —
A That's correct.
... .
Q And during that time period was Michael Diggs working with the special operations unit as the undercover agent?
A He — he was working as a paid informant.
... .
Q There was a point in time that Michael Diggs was the lone person left as a suspect and he then was not used any longer as an undercover person with the special operations unit; is that correct?
A (No audible answer from the witness).
Q Do you want me to rephrase that?
A Yes, sir. I wish you would. I didn't quite understand all of it.
Q All right let me just — let me just lay it out black and white. Okay. Michael Diggs testified in here earlier that he was not — he was no longer used as an undercover agent, if you will, for the special operations unit in January, 1991, that he was terminated at that time — somewhere in January of 1991 because of the fact that there was a roundup in the particular — the particular narcotics cases that he had been operating in, that he had been used.
A Um hum.
....
Q Was there a roundup because Diggs was suspicious of all — of stealing cocaine or was there — was Diggs no longer used later on because there was a roundup? Are you seeing what I'm saying?
A Yes, sir. I'm aware that there was a drug roundup, and of course after the investigation, Diggs was no longer used.
Q Right.
A And he was no longer used by our department partly because of that investigation... .
....
Q Major Winter have you — did you ever have occasion to question Michael Diggs during this investigation?
A I did not personally question him, no.
....
Q Were you in charge of the investigation of it?
A I was... . [I]t was a two-sided investigation, an internal investigation and a criminal investigation. And I was overseeing the overall investigation.
Q And as a result of this investigation did you determine — can you tell us whether you believe him to be a truthful person?
BY MS. CHILDS: Object, Your Honor.
BY MR. KELLY: Judge, I thought that was right to the issue ... of whether or not he is a truthful person on the stand.
BY THE COURT: It's clear under the rules that what an individual thinks about another person's veracity is not admissible.

The court effectually sustained the State's objection to Cooper's proffer of Winter's testimony. The defense rested. The jury convicted Cooper.

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Cite This Page — Counsel Stack

Bluebook (online)
628 So. 2d 1371, 1993 WL 510896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-state-miss-1993.