Curry v. State

631 So. 2d 806, 1994 Miss. LEXIS 81, 1994 WL 40134
CourtMississippi Supreme Court
DecidedFebruary 10, 1994
DocketNo. 91-KA-0430
StatusPublished
Cited by3 cases

This text of 631 So. 2d 806 (Curry 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
Curry v. State, 631 So. 2d 806, 1994 Miss. LEXIS 81, 1994 WL 40134 (Mich. 1994).

Opinion

SMITH, Justice,

for the Court:

Curtis Curry was indicted by the Grand Jury of Coahoma County for possession with intent to sell and for the sale of cocaine to an undercover police officer. A jury trial began on January 18, 1991, in the Coahoma County Circuit Court. After testimony by two State witnesses, the court ruled that the charge of possession with intent to sell would be dismissed. The jury returned a guilty verdict on the remaining charge. Curry was subsequently sentenced to serve a term of six (6) years under the supervision of the Mississippi Department of Corrections and to pay a fine of three thousand dollars. Curry’s Motion for a Judgment Notwithstanding the Verdict or, in the alternative, for a New Trial, was denied.

Feeling aggrieved, Curry presents two issues for this Court’s consideration on appeal:

I. WHETHER THE CIRCUIT COURT ERRED BY FAILING AND REFUSING TO SUPPRESS THE MONEY SEIZED FROM THE PERSON OF THE DEFENDANT WHEN STOPPED AT A TRAFFIC LIGHT AND ALLOWING SAME TO BE INTRODUCED INTO EVIDENCE IN THE TRIAL AFTER HAVING RULED THE SEARCH WAS ILLEGAL AND THE DISMISSED [SIC] A COMPANION ACTION, WHEREIN THE DEFENDANT WAS CHARGED WITH POSSESSION WITH INTENT TO SELL, TRANSFER OR DISTRIBUTE COCAINE.
II. WHETHER THE CIRCUIT COURT ERRED BY REFUSING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL ON THE BASIS THAT THE JURY HEARD TESTIMONY REGARDING THE SEIZURE OF EVIDENCE DURING AN ILLEGAL SEARCH.

THE FACTS

Curry was initially indicted for both possession of cocaine with intent to sell and the sale of cocaine. Prior to trial, Curry filed a motion to suppress any evidence seized from his automobile and any statements he made following his arrest, asserting that both the search of his vehicle and his arrest were without probable cause. In chambers prior to the beginning of the trial, counsel for Curry noted the motion to suppress had not yet been heard, but indicated no opposition to having the court consider it during the course of the proceedings.

Officer Randy Gibson testified he was a narcotics investigator with the Clarksdale Police Department in November of 1990, when an undercover operation was in effect. Two officers from Greenville, Mississippi, Herbert Partlow and Kenny Trader, were brought in. Officer Gibson explained the method by which these and other officers wearing body microphones purchased drugs from individual sellers around the town of Clarksdale. Officer Gibson stated the officers purchased the drugs with money from a special account. The bills had préviously been photocopied in order that the serial numbers could later be matched with the money seized from persons arrested for drug sales.

Officer Gibson testified he obtained a sum of marked money On November 15 and drug purchases were made on November 15, 16, and 17. On the latter date, Gibson stated the officers had been focusing their efforts in the area of Issaquena Street and Sixteenth Street in Clarksdale. Several officers were inside a house belonging to an informant, James Liner, organizing evidence and tapes when they observed Curtis Curry coming down the street at 2:42 p.m. Officer Gibson stated when Curry drove up, Officers Part-low and Trader and James Liner went outside with some money, while he, Gibson, remained inside and began filming with a video camera. Gibson identified a videotape recording as the one he had made of the officers and Curry.

Officer Gibson testified he gave Officer Partlow two twenty dollar bills and one ten dollar bill, and when the officers came back inside, they returned to him a white napkin with “two yellowish-looking rocks in it with a name on the outside of it and a phone number.” Gibson identified a sealed bag kept at the Mississippi Crime Lab as being the one containing the same “rocks” and napkin, in[808]*808scribed with the name “Groover” and a phone number. Gibson testified the phone number was determined to belong to Curtis Curry, also known on the streets as “Gro-over,” and whose car tag read “Gruver.”

Following the incident, Officer Gibson and Officer Bill Gardner attempted to locate Curry and later spotted his car outside a laundromat. After temporarily losing track of Curry, the officers again saw Curry’s car, and followed it, first to his residence and “down to Second Street where he ran a red light” and was pulled over. Officer Gibson stated he asked Curry for permission to search the car while Officer Gardner gathered information for a traffic ticket. According to Gibson, Curry replied, “Sure.” Upon searching the passenger side of the vehicle, Gibson stated that Curry volunteered, “I don’t have any drugs in my ear,” although no one had mentioned drugs to him. In the console Gibson testified that he located a Crown Royal bag. At this point in Gibson’s testimony, the defense objected based on upon their motion to suppress. The jury was excused..

Outside the jury’s presence, Officer Gibson continued stating that inside the Crown Royal bag was a medicine bottle with Curry’s name, and inside the bottle were three bags of white powder and a “bunch of yellowish-looking rocks.” Officer Gibson admitted he had been following Curry with the intent to eventually stop him at some point. With the jury still out, Officer Gardner testified, corroborating Officer Gibson’s testimony. Gardner stated after the drugs were found Curry was arrested and transported to the police station, where Gardner wrote and issued Curry the traffic citation. Gardner admitted he had a tape recorder in his pocket when Curry was pulled over but did not turn it on.

The lower court ruled the evidence relating to the search of Curry’s car and seizure of the cocaine would be suppressed. The case continued on the charge for the sale of cocaine. Officer Gibson identified two twenty dollar bills found on Curry at the time of his arrest as having serial numbers matching those of the currency Gibson had previously photocopied. Testimony by the remaining State’s witnesses was substantially similar in describing the events involving Curry and his alleged sale of two rocks of crack cocaine to the undercover officers.

Curtis Curry testified he was a thirty-nine year old high school math teacher who had never sold or used drugs. On November 16, he had returned from a basketball tournament and was at home when he heard tapping on his air conditioning unit and someone talking. He looked outside and recognized James Carl Liner, who was pulling something out of his pocket and walking down the side of Curry’s house. Curry investigated and “felt this bag” near the steps. He opened it and saw “some drug-like substance.” Curry stated he decided to call a police officer he knew, but he was not in that evening or the next morning. Thereafter, Curry decided to contact the FBI, who gave him the name of a local agent. Curry produced a phone bill listing a call to the FBI in Jackson, Mississippi, on November 17.

On the way to the laundromat Curry saw Carl Liner and approached him “about the drugs that was put under my house.” Curry had decided to go to Liner’s house with the intention of getting Liner to come to Curry’s house so the police could be called. Curry testified Liner did not want to come by, so Curry decided to “see what was up.” Curry stated he had no drugs in his car when he went to Liner’s home; the Crown Royal bag was at his home. After leaving Liner’s house, where he was introduced to Liner’s “friends,” undercover officers, Curry stated he was proceeding to either find the Sheriff or to go to the police station when he was stopped, arrested and had his money taken from him.

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Related

Ott v. State
722 So. 2d 576 (Mississippi Supreme Court, 1998)
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Bluebook (online)
631 So. 2d 806, 1994 Miss. LEXIS 81, 1994 WL 40134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-state-miss-1994.