Gary v. State

796 So. 2d 1054, 2001 WL 1187097
CourtCourt of Appeals of Mississippi
DecidedOctober 9, 2001
Docket2000-KA-00851-COA
StatusPublished
Cited by6 cases

This text of 796 So. 2d 1054 (Gary v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary v. State, 796 So. 2d 1054, 2001 WL 1187097 (Mich. Ct. App. 2001).

Opinion

796 So.2d 1054 (2001)

Arthur GARY a/k/a Arthur L. Gary, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2000-KA-00851-COA.

Court of Appeals of Mississippi.

October 9, 2001.

*1055 Bill J. Barnett, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Jackson, Attorney for Appellee.

Before KING, P.J., LEE, and CHANDLER, JJ.

LEE, J., for the Court:

¶ 1. Arthur Gary was convicted in the Circuit Court of Lincoln County on two counts: (1) unlawful sale of cocaine and (2) unlawful possession of at least two grams but less than ten grams of cocaine with intent to distribute. Gary now appeals his convictions, and asserts the following issues: (1) whether the trial court committed reversible error regarding a potential discovery violation under Uniform Rules of Circuit and County Court Practice Rule 9.04, and (2) whether the trial court properly applied Mississippi Rules of Evidence Rules 401 and 403 regarding testimony and the admission of a handgun into evidence. Finding these issues without merit, we affirm the conviction and sentence of the lower court.

*1056 FACTS

¶ 2. This case evolved from Gary selling cocaine to a confidential informant. Later that same day, after the sale to the informant, a search warrant was issued for Gary's residence. In conducting the search, the officers first secured the home and discovered that neither Gary nor anyone else was inside the house; therefore, the officers proceeded to wait outside before conducting the actual search. Eventually, Gary approached the back of his house from a neighbor's yard and was detained and arrested by the officers. Subsequently, a search was performed on Gary's residence and automobile.

¶ 3. The search of the house disclosed numerous items containing what appeared to be cocaine. A search was also conducted of Gary whereupon the officers found a bag containing what appeared to be cocaine. The presence of cocaine was later confirmed by tests run by the Mississippi Crime Lab. The search of Gary's automobile also disclosed a handgun.

¶ 4. At trial, the State presented testimony regarding the handgun and had the handgun admitted into evidence. The use of the handgun by the State during the trial is the basis of Gary's appeal. However, to avoid repetition, we will leave further discussion of the testimony regarding the handgun and the actual admission of the handgun into evidence for our discussion of the issues.

DISCUSSION

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR REGARDING A POTENTIAL DISCOVERY VIOLATION UNDER UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE RULE 9.04.

¶ 5. Gary argues that the trial court erred by allowing the handgun into evidence since he had previously requested discovery, and the State failed to furnish any information regarding its intended use of the weapon at trial. Additionally, Gary contends that error was committed because he was not given the opportunity to examine the evidence and prepare an adequate motion to suppress. Gary contends he made an objection to the handgun on the basis of a Uniform Rules of Circuit and County Court Practice Rule 9.04 discovery violation during a bench conference. However, as conceded by Gary and supported by the record, there is no transcript regarding an objection on this basis. The only objection reflected in the record is based on relevancy. Gary's counsel tries to correct this oversight by submitting an affidavit that attests that an objection was made which advised the trial judge that its presence and intended use during trial by the State had not been revealed to Gary prior to trial. Several principles of law deny Gary relief.

¶ 6. First, to invoke the issue of a discovery violation before the trial judge, counsel for the defense must first raise the issue by making a contemporaneous objection on this basis. Box v. State, 437 So.2d 19, 23 (Miss.1983). If the objection is not raised contemporaneously, therefore, denying the trial court the opportunity to consider the issue and possible remedies, the issue is deemed waived. De La Beckwith v. State, 707 So.2d 547, 574 (Miss. 1997); Nathan v. State, 552 So.2d 99, 108 (Miss.1990). As mentioned above, nothing in the official record reveals that an objection, much less a contemporaneous objection, was made regarding a possible discovery violation. Second, when a party makes an objection on specific grounds it is considered a waiver regarding all other grounds. Burns v. State, 729 So.2d 203, 219 (¶ 67) (Miss.1998). Once again, while the record reveals that Gary did make an *1057 objection on the basis of relevancy, the record does not show that the trial judge was presented with or considered a potential discovery violation. Third, this Court may not review facts asserted by a party that do not appear in the record. Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994). Finally, the case of Cotton v. State, presents circumstances similar to ours regarding objections made during an unrecorded bench conference. Cotton v. State, 675 So.2d 308, 314 (Miss.1996). Like Gary, counsel for Cotton presented an issue on appeal which he alleged he had presented for the trial court's review during an unrecorded bench conference. Id. The Mississippi Supreme Court stated: "Although the defense suggests that a proper objection was entered at this point, [i.e., at an unrecorded bench conference] it is incumbent upon the party complaining of an error to preserve the record for appeal. The burden was on Cotton to make a contemporaneous objection." Id. The Mississippi Supreme Court held the issue was procedurally barred. Id. For the preceding reasons, we find this issue is without merit.

II. WHETHER THE TRIAL COURT PROPERLY APPLIED MISSISSIPPI RULES OF EVIDENCE RULES 401 AND 403 REGARDING TESTIMONY AND THE ADMISSION OF A HANDGUN INTO EVIDENCE.

¶ 7. Gary argues that the trial court abused its discretion when it allowed testimony regarding a handgun, as well as the admission of the handgun into evidence. See Gulley v. State, 779 So.2d 1140, 1149 (¶ 31) (Miss.Ct.App.2001) (The determination of the admissibility of evidence is mostly within the discretion of the trial judge and a decision will not be reversed unless the trial judge abuses his discretion). Gary contends that the trial court abused its discretion because he was indicted for the sale of cocaine and possession with the intent to distribute cocaine and was not charged with any offense relating to a firearm; therefore, the gun produced at trial had no relation to the offense charged. A review of the record and case law shows there were sufficient facts for the trial court to determine that the weapon was relevant in the case at bar. The testimony supporting the relevancy of the handgun came from the confidential informant.

¶ 8. The informant testified that he approached the house and knocked on the door of Gary's residence. The informant explained the role the handgun played in the drug transaction that occurred between himself and Gary:

Okay. He [i.e., Gary] said "you want to die, n____." And then that's when I began to get hanky, because I seen a pistol, you know, side of his pants there, and he said "what you want," and I said "a sixty," and he said "sixty." I said "sixty." That means sixty dollars worth of crack cocaine.

¶ 9. In Hemphill v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jenkins v. State
993 So. 2d 862 (Court of Appeals of Mississippi, 2008)
Travis v. State
972 So. 2d 674 (Court of Appeals of Mississippi, 2007)
Fugate v. State
951 So. 2d 604 (Court of Appeals of Mississippi, 2007)
Livingston v. State
943 So. 2d 66 (Court of Appeals of Mississippi, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
796 So. 2d 1054, 2001 WL 1187097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-v-state-missctapp-2001.