Hervey v. State

764 So. 2d 457, 2000 WL 224803
CourtCourt of Appeals of Mississippi
DecidedFebruary 29, 2000
Docket1999-KA-00578-COA
StatusPublished
Cited by2 cases

This text of 764 So. 2d 457 (Hervey 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
Hervey v. State, 764 So. 2d 457, 2000 WL 224803 (Mich. Ct. App. 2000).

Opinion

764 So.2d 457 (2000)

Therron Lamont HERVEY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00578-COA.

Court of Appeals of Mississippi.

February 29, 2000.
Rehearing Denied May 16, 2000.
Certiorari Denied August 17, 2000.

*458 David L. Walker, Southaven, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.

BEFORE KING, P.J., DIAZ, AND IRVING, JJ.

*459 DIAZ, J., for the Court:

¶ 1. The Panola County Circuit Court convicted Therron Lamont Hervey of conspiracy to sell cocaine. On appeal, Hervey contends that (1) the trial court's failure to exclude the testimony of the confidential informant who had been promised leniency in exchange for his testimony violated the federal witness tampering statute; and (2) that the trial court erred in granting the State's for cause challenges to three prospective jurors who found the law enforcement practice of using drug offenders as confidential informants to be inherently unfair. Finally, Hervey challenges (3) the weight and sufficiency of the evidence. Finding no merit to his assertions, we affirm.

FACTS

¶ 2. On June 16, 1998, officers with the Panola-Tate Narcotics Task Force were conducting undercover drug sting operations. Willie James Parker, a confidential informant working with the task force, was instructed to purchase drugs from Keissha Smith, a suspected drug dealer and acquaintance of Parker's. Equipped with a radio transmitter, Parker entered Smith's home and was directed to her bedroom where he found Smith and her boyfriend, Therron Lamont Hervey. Smith asked Parker what he wanted, and Parker responded that he wished to purchase two rocks of crack cocaine. Hervey then retrieved a matchbox containing crack cocaine and instructed Smith to serve Parker. Smith gave Parker two rocks of cocaine in exchange for twenty-five dollars. Parker left Smith's home and turned the cocaine over to narcotics agents.

¶ 3. Hervey was indicted on one count of conspiracy to sell cocaine and one count of the sale of cocaine. Following a trial held in the Panola County Circuit Court, the jury convicted Hervey of conspiracy to sell cocaine. Hervey was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO EXCLUDE THE TESTIMONY OF THE CONFIDENTIAL INFORMANT, WILLIE JAMES PARKER, IN VIOLATION OF THE FEDERAL WITNESS TAMPERING STATUTE

¶ 4. Hervey claims that the trial court erred in allowing the confidential informant, Willie James Parker, to testify as to his involvement in the drug transaction. He points to the fact that law enforcement officials promised Parker he would not be prosecuted for his own past drug violations if he participated in the undercover operation. Hervey argues this promise of leniency violates the federal witness tampering statute.

¶ 5. In support of his argument, Hervey relies upon United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). In Singleton, the court found that the United States Attorney violated the federal witness tampering statute by offering lenience to a codefendant in exchange for truthful testimony. Id. at 1358. Singleton, however, has since been vacated by the Tenth Circuit Court of Appeals sitting en banc. United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir.1999). Other federal courts addressing the issue have similarly declined to apply the federal witness tampering statute to plea bargain agreements between prosecutors and co-defendants. United States v. Hunte, 193 F.3d 173, 176 (3rd Cir.1999); United States v. Carroll, 166 F.3d 334, 1998 WL 801880 (4th Cir. Nov. 19, 1998) (unpublished disposition); United States v. Haese, 162 F.3d 359, 366-67 (5th Cir.1998); United States v. Ware, 161 F.3d 414, 421-22 (6th Cir.1998); United States v. Mitchell, 178 F.3d 904, 909 (7th Cir.1999); United States v. Garcia, 785 F.2d 214, 220-21 (8th Cir.1986); United States v. Briones, 165 F.3d 918, 918, 1998 WL 863026 (9th Cir.1998); United *460 States v. Lowery, 166 F.3d 1119, 1124 (11th Cir.1999).

¶ 6. We decline to find that the federal witness tampering statute is applicable to agreements between state and local authorities and drug violators employed as confidential informants in exchange for leniency. The statute provides that "Whoever ... (2) directly or indirectly, gives, offers or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial ... before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom ... shall be fined under this title or imprisoned for not more than two years, or both." 18 U.S.C. § 201(c)(2) (1994). By its terms, the statute does not apply to agreements such as the one in the instant case.

¶ 7. Hervey points to no Mississippi cases prohibiting the use of confidential informants who have been promised leniency in exchange for participation in undercover drug operations. Moreover, Parker's motivation for participating in the undercover operation was adequately brought out by defense counsel on cross-examination. We find no error.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO EXERCISE CHALLENGES FOR CAUSE AGAINST THREE POTENTIAL JURY MEMBERS

¶ 8. During voir dire of the potential jury members, the State asked "[D]oes anyone think it's unfair for the law enforcement officers to use an individual who has been caught with dope to buy dope from someone else?" Three veniremen, Ellis, Jones, and Hamilton, responded affirmatively. The State then exercised three for cause challenges based on their responses, arguing that the potential jurors were not impartial. Hervey objected, contending that striking these potential jurors from the venire would deny him his due process right to a fair and impartial jury in accordance with both the state and federal constitutions. The trial judge overruled Hervey's objection and allowed the State to strike the veniremen for cause, finding that "the law in this state today as we try this case is that persons such as Mr. Parker can be used legally." He further explained that the potential jurors' responses "indicate[d] a mindset that [they] would have going into the jury box, that this type of case is unfair...."

¶ 9. Mississippi Code Annotated § 13-5-79 (1972) provides, "Any juror shall be excluded ...

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Bluebook (online)
764 So. 2d 457, 2000 WL 224803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hervey-v-state-missctapp-2000.