Gilley v. State

748 So. 2d 123, 1999 WL 773668
Mississippi Supreme Court·Decided September 30, 1999·No. 97-KA-01404-SCT·Published·Cited by 49 cases

Opinion

748 So.2d 123 (1999)

Wilbert Turner GILLEY, Jr.
v.
STATE of Mississippi.

No. 97-KA-01404-SCT.

Supreme Court of Mississippi.

September 30, 1999.

*124 Felicia Dunn-Cooper Burkes, New Orleans, LA, Attorney for Appellant.

*125 Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

WALLER, Justice, for the Court:

¶ 1. Wilbert Turner Gilley, Jr. was convicted of selling cocaine in violation of Miss.Code Ann. § 41-29-139 (1993 & Supp.1999) and was sentenced as a recidivist under Miss.Code Ann. § 99-19-81 (1994), to imprisonment for 30 years. Gilley appeals to this Court raising six issues:

I. Whether the lower Court committed reversible error in allowing into evidence Exhibit S-1 over the objection of defense counsel?
II. Whether the lower Court committed reversible error in allowing into evidence Exhibit S-2 over the objection of defense counsel?
III. Whether the lower Court committed reversible error by unconstitutionally chilling the Defendant's right to freely and voluntarily exercise his Fifth Amendment right to testify?
IV. Whether the lower Court committed reversible error in refusing Motion for Directed verdict made at the close of the state's case and renewed at the conclusion of trial?
V. Whether the lower Court committed reversible error in overruling Defendant's timely objection to the State's reference to "Marked Money" during closing argument and refusing to grant Defendant a mistrial, after the Appellant filed a Motion in Limine to prohibit the State from introducing, arguing, or stating that the "Marked Money" was in the possession of the Defendant, had a hearing outside the presence of the jury wherein said Motion was sustained, and the State during the rebuttal phase of closing argument violated the Court's order and linked the Defendant to the "Marked Money"?
VI. Whether the Defendant's trial counsel was ineffective?

STATEMENT OF THE FACTS

¶ 2. At a pre-buy meeting, Reserve Officer Johnny Wallace was outfitted with a body wire and given City of Gulfport funds with which to attempt to purchase illegal drugs. After the meeting, Wallace rode around in an unmarked car in a neighborhood where drug activity had been reported. He pulled up to an intersection where 6 or 7 people had congregated and asked if anyone could sell him some "hut," a street term for crack cocaine. A man later identified as Gilley approached the vehicle, removed an off-white rock-like substance from his mouth (later determined to be crack cocaine), and traded it for $20. Wallace gave the "password" for back-up officers to move in and make the arrest, but received no response. To keep the suspect from getting away, he asked the suspect to sell him another "piece of hut," and paid another $20 for a second rock of crack cocaine. Officer Wallace again gave the "password" and this time the arrest team came, though not in time to catch Gilley before he walked into a nearby apartment building. When Gilley left the apartment building 4 or 5 minutes later, he was apprehended and arrested. No money was found on Gilley at the time of arrest.

¶ 3. Officer Loposser, a member of the back-up team, testified that he photocopied $40 in cash and then gave the money, obtained from the City of Gulfport, to Wallace. The photocopy, admitted as S-1, was kept in his case file until the time of trial. Loposser further testified that Wallace positively identified Gilley at the time of arrest. Loposser also identified the crack cocaine admitted into evidence as Exhibit S-2, which he collected from Wallace at the crime scene, and which was later confirmed *126 as crack cocaine by the State Crime Laboratory.

¶ 4. Outside the presence of the jury, the judge inquired about whether Gilley had been apprised of his constitutional right not to testify, to which question both Gilley and defense counsel responded affirmatively. The defense rested without calling any witnesses.

STATEMENT OF THE LAW
I. Whether the lower Court committed reversible error in allowing into evidence Exhibit S-1 (a photocopy of the money given to Officer Wallace) over the objection of defense counsel?
V. Whether the lower Court committed reversible error in overruling Defendant's timely objection to the State's reference to "Marked Money" during closing argument and refusing to grant Defendant a mistrial, after the Appellant filed a Motion in Limine to prohibit the State from introducing, arguing, or stating that the "Marked Money" was in the possession of the Defendant, had a hearing outside the presence of the jury wherein said Motion was sustained, and the State during the rebuttal phase of closing argument violated the Court's order and linked the Defendant to the "Marked Money"?

¶ 5. This Court has held that "`[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.'" Turner v. State, 732 So.2d 937, 946 (Miss.1999) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)). Similarly, the decision that an error is irreversible and a mistrial should be granted is within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Snelson v. State, 704 So.2d 452, 456 (Miss.1997).

¶ 6. Gilley argues that Exhibit S-1, the photocopy of the $40 in cash, should not have been admitted into evidence because there is nothing that connects him to the money, inasmuch as it was not found on him when he was arrested. He concludes that Exhibit S-1, therefore, has no probative value and was misleading to the jury and prejudicial because it inferred that he was somehow connected to the "marked money." Gilley also assigns as error a comment referring to the "marked money" made by the prosecutor in his closing argument in rebuttal: "I tell you, the one mistake that stands out in my mind that occurred that night, the one big mistake that Mr. John Doe, who we find out is Wilbert Gilley, John Doe traded this cocaine to the police for marked money."

¶ 7. Before trial, the court granted Gilley's motion in limine and ordered the State not to attempt to introduce evidence that the "marked money" was found on Gilley when he was arrested. At trial, both Wallace and Loposser testified about the buy/bust operation, the pre-buy meeting, and that Wallace was given funds with which to purchase drugs. The photocopy of the $40 in cash was entered into evidence as Exhibit S-1. Wallace testified that he transacted two deals with Gilley, each for $20.

¶ 8. Exhibit S-1 was only relevant to set out the procedure of the buy/bust operation and to corroborate to some extent the testimony of the officers concerning the amount of money used to make the buys. It would have, of course, been more relevant if the money had actually been found on Gilley. The question, then, is whether the evidence was more prejudicial than probative. M.R.E. 401 & 403.

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

Gilley v. State, 748 So. 2d 123, 1999 WL 773668 (Mich. 1999).

748 So. 2d 123 (Gilley v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Jonicqua Moffett v. State of Mississippi
Court of Appeals of Mississippi, 2022
Sherry Westmoreland v. State of Mississippi
Court of Appeals of Mississippi, 2021
Jamar Allen v. State of Mississippi
Court of Appeals of Mississippi, 2021
James Curtis Clark v. State of Mississippi
237 So. 3d 844 (Court of Appeals of Mississippi, 2017)
Terrell Patrick Corvette Hopper v. State of Mississippi
220 So. 3d 224 (Court of Appeals of Mississippi, 2017)
Jeffery Kleckner v. State of Mississippi
230 So. 3d 1042 (Court of Appeals of Mississippi, 2017)
Bryan F. Faris v. State of Mississippi
212 So. 3d 107 (Court of Appeals of Mississippi, 2016)
Darrell Jenkins v. State of Mississippi
202 So. 3d 220 (Court of Appeals of Mississippi, 2016)
Barry Lemax Melton v. State of Mississippi
201 So. 3d 1085 (Court of Appeals of Mississippi, 2016)
Bennie Beal v. State of Mississippi
225 So. 3d 1276 (Court of Appeals of Mississippi, 2016)
Earnest Varnado, Jr. v. State of Mississippi
201 So. 3d 483 (Court of Appeals of Mississippi, 2015)
Michael T. Anderson v. State of Mississippi
185 So. 3d 1015 (Court of Appeals of Mississippi, 2014)
Edmonds v. State
955 So. 2d 787 (Mississippi Supreme Court, 2007)
Chandler v. State
946 So. 2d 355 (Mississippi Supreme Court, 2006)
Sipp v. State
936 So. 2d 326 (Mississippi Supreme Court, 2006)
Sumrall v. State
955 So. 2d 332 (Court of Appeals of Mississippi, 2006)