Minor v. State

482 So. 2d 1107
CourtMississippi Supreme Court
DecidedJanuary 29, 1986
Docket55916
StatusPublished
Cited by31 cases

This text of 482 So. 2d 1107 (Minor 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
Minor v. State, 482 So. 2d 1107 (Mich. 1986).

Opinion

482 So.2d 1107 (1986)

Curtis MINOR and Donnell Kinzie
v.
STATE of Mississippi.

No. 55916.

Supreme Court of Mississippi.

January 8, 1986.
Rehearing Sustained in Part and Opinion Corrected January 29, 1986.

*1108 E.R. Arrington, Carroll Rhodes, Hazlehurst, for appellants.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

The question of whether the transaction for sale of marijuana consisted of a single occurrence or separate and distinct sales within a twenty minute period is addressed by this appeal. Curtis Minor and Donnell Kinzie were jointly indicted in the Circuit Court of Copiah County for the sale of more than one ounce of marijuana. Upon conviction, Curtis Minor was sentenced to three years and Donnell Kinzie to five years in the custody of the Mississippi Department of Corrections. Minor and Kinzie appeal and assign jointly the following error:

(1) The trial court erred in not granting Donnell Kinzie's motion for severance;

(2) The trial court erred in permitting evidence to be introduced pertaining to a separate and distinct sale of marijuana over the objections of the defendants;

(3) The trial court erred in not excluding the evidence and directing a verdict of acquittal for the defendants in overruling the defendants' motions for judgment of acquittal notwithstanding the verdict of the jury;

(4) The trial court erred in not granting Instruction No. D-1;

(5) The verdict of the jury is contrary to the law and the evidence, is not supported by the evidence, and the overwhelming weight of the credible evidence.

I.

On the evening of March 29, 1983, Lieutenant Mallory, an undercover agent with the Mississippi Bureau of Narcotics, was taken to the home of Curtis Minor by Billy Don and Rose Ann Saulters, two confidential informants. At approximately 9:00 p.m. the parties met Minor on the road close to his house and Minor agreed to help them find marijuana for sale. In his own car, Minor followed Lt. Mallory and the Salters to the parking lot of the T G & Y in Hazlehurst. At that point Minor got in Lt. Mallory's car and directed Mallory to the location of a drug dealer who was out of drugs. From there Minor directed the parties to the C & T Liquor Store, where he said a person named Houston had marijuana to sell.

Upon arrival at the C & T Liquor Store, Curtis Minor went inside and returned with Houston Collins, Donnell Kinzie and an unidentified black male. As Houston Collins suspiciously approached the car, Lt. Mallory told Collins he "needed an ounce, maybe a quarter of a pound." Collins replied that he would send someone out with the marijuana. Minor, Collins, Kinzie and the unidentified man then went back into the store.

A few minutes later, Minor, Kinzie, and the unidentified male returned and told Lt. Mallory he would have to give Minor the *1109 purchase money before receiving the marijuana. Lt. Mallory gave Minor $100 and the three went back into the store. Momentarily, Kinzie and Minor returned with a bag of less than one ounce of marijuana. Kinzie handed the bag to Minor who got in the car with Lt. Mallory and delivered the bag. Minor then asked Lt. Mallory for some of the marijuana but Mallory gave him $10.00 instead.

Subsequently, as Kinzie was standing outside Mallory's car, Kinzie asked Mallory if he still wanted a quarter-pound of marijuana. Mallory responded affirmatively, but before the negotiations could continue, the parties were interrupted by the sirens of police cars en route to the scene of an accident. The defendants, not knowing the reason for the police sirens, all scattered, but the undercover agent remained in his car never leaving the scene. Approximately 15 minutes later the negotiations resumed, and Kinzie finally agreed to a price of $325.00 for a quarter pound. Curtis Minor got out of the car and went with Kinzie back into the store.

Shortly thereafter, Kinzie, Minor, and the unidentified party returned to the car with Kinzie carrying the marijuana. Kinzie handed the bag to Minor who, in turn, handed it to Lt. Mallory. Mallory paid the $325.00 to the unidentified man who passed the money on to Kinzie. Lt. Mallory, along with the Salters, then left the scene.

Collins, Minor, and Kinzie were subsequently indicted for the sale of more than one ounce of marijuana, a controlled substance, in violation of Miss. Code Ann. § 41-29-139 (1972). Defendant Collins was granted a severance but Minor and Kinzie were tried together.

The only testimony that contradicted the testimony of Lt. Mallory concerning the events of the drug sale was that of Ellis Blackwell, Jr., Kinzie's stepfather. Blackwell testified that on the night of March 29, 1983, Kinzie returned from Simpson County with Mr. Blackwell and his wife. Blackwell testified that they arrived home at 9:30 p.m. and that Kinzie was asleep in his bed by 10:00 p.m. Blackwell further testified that he saw Kinzie in bed at 10:30 p.m., 11:00 p.m. and 11:30 p.m. Blackwell concluded by testifying that Kinzie did not leave the house that night.

Prior to the trial's beginning in chambers, the district attorney announced to the court and defense counsel that the state considered the two sales of marijuana as one transaction because the sales were so connected and impossible to separate.

II.

Did the trial court err in not granting Donnell Kinzie's motion for severance?

Miss. Code Ann. § 99-15-47 (1972) states, "Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases." "The granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial judge." Rule 4.04 Miss. Uniform Criminal Rules of Circuit Court Practice. A trial court's ruling denying a motion for severance will not be disturbed unless there is a positive showing of an abuse of discretion. Hicks v. State, 419 So.2d 215 (Miss. 1982).

The State cites Shavers v. State, 455 So.2d 1299, 1302 (Miss. 1984), in which this Court held: "We will not put the trial court in error on an issue not placed before it and we must deem this ground to have been waived." [Citation Omitted].

On the record of the case sub judice it appears that defendant Kinzie's motion for severance was not timely made. In explaining his adverse ruling on the motion for severance, Judge Pigott said:

This Motion for a Severance was not called to the attention of the Court until after the State had announced ready on today, November 29th, the date set for trial. The defendant was arraigned on the 17th of November and was notified that all motions were to have been filed with the Court before the, I believe the 19th. At any rate, the Judge made himself *1110 available all last week, the week of the 21st of November, for the hearing of any motions in any of the criminal cases. No motion was brought to the attention of the Court in this case.

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Bluebook (online)
482 So. 2d 1107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minor-v-state-miss-1986.