Rogers v. State

891 So. 2d 268, 2004 WL 2439290
Court of Appeals of Mississippi·Decided November 2, 2004·No. 2003-KA-00763-COA·Published·Cited by 3 cases

Opinion

891 So.2d 268 (2004)

Willie C. ROGERS a/k/a Willie Rodgers, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-00763-COA.

Court of Appeals of Mississippi.

November 2, 2004.
Rehearing Denied January 11, 2005.

*270 Percy Stanfield, Beverly D. Poole, Jackson, attorneys for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before KING, C.J., IRVING and MYERS, JJ.

KING, C.J., for the Court.

¶ 1. Willie C. Rogers was found guilty in the Circuit Court of Madison County, Mississippi of the sale of cocaine. He was sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections, with the last fifteen years suspended under prescribed conditions. The trial judge ordered that Rogers be placed in an alcohol and drug treatment program for a period determined by the alcohol and drug treatment counselors, and serve a term of five years on probation under the direct supervision of the Mississippi Department of Corrections immediately following his fifteen years of incarceration.

¶ 2. Aggrieved by his conviction, Rogers has appealed and raised the following issues which we state verbatim:

I. The trial judge's sentence was unusually harsh for a first offender and was imposed to punish defendant for exercising his right to a trial by jury.

II. The lower court erred in denying defendant's instructions D-2 and D-4 as to reasonable doubt.

III. Willie Rogers was denied the right to a fair trial under the 14th Amendment to the United States Constitution due to the racial composition of the jury and the venire.

IV. The lower court erred in not granting Rogers a continuance of the trial due to discovery violations on the part of the State.

FACTS

¶ 3. On April 12, 2002, Agent Thomas Jones of the Narcotics Unit of the Madison County Sheriff's Department worked with Tommy Brown, a confidential informant, in an undercover buy to purchase narcotics in the Madison County area.

¶ 4. At the pre-buy meeting, Agent Jones searched both Brown and his vehicle. Agent Jones gave Brown a jacket to wear, which concealed a video camera. An audio transmitter was placed in Brown's vehicle. Jones indicated that the other officers were able to listen to the transmission of the transaction from a vehicle parked nearby. Jones stated that he gave Brown $40 to purchase the narcotics. Afterwards, Brown drove to Franklin Street in Canton where he saw Willie Rogers. According to Brown, he told Rogers that he wanted to purchase "two cocaine rocks." Brown stated that Rogers asked him to wait a few minutes, because he did not have any rocks at that time.

¶ 5. While they were waiting, someone later identified as Lenaris Milton drove up. Rogers then received $40 from Brown, and told Milton to give Brown "a double up" (two cocaine rocks). Brown testified that Milton then gave him two plastic bags which contained a yellow-colored substance. *271 Brown drove back to the pre-buy location and met with Agent Jones.

¶ 6. When Brown got out of the car, he was searched by Agent Jones. Brown indicated that he told Jones that the substance was on the seat in the car. Agent Jones then took possession of the two plastic bags from the seat and all of the equipment used in the undercover buy by Brown. Agent Jones placed the substance in an evidence bag and sent it to the Mississippi Crime Lab where it was later determined to contain cocaine.

¶ 7. In June 2002, Rogers was indicted along with Lenaris Milton for the sale of cocaine. At trial on February 27, 2003, Brown testified that he purchased cocaine rocks from Rogers. Milton testified that at Rogers' instruction, he gave "two rocks" to Brown who had given Rogers two $20 bills.

ISSUES AND ANALYSIS

I.

Whether the trial judge's sentence was unusually harsh for a first-time offender and was imposed to punish defendant for exercising his right to a trial by jury.

¶ 8. Rogers claims that his sentence was unusually harsh for a first-time offender and that his sentence was in violation of the U.S. Const. amend. VI and the Miss. Const. art. 3, § 26. Rogers maintains that he was given such a harsh sentence as punishment for exercising his right to a trial by jury.

¶ 9. Generally, sentencing is within the discretion of the trial court and "not subject to appellate review if it is within the limits prescribed by statute." Hoops v. State, 681 So.2d 521, 537 (Miss.1996).

¶ 10. In this instance, the prosecution discussed a plea bargain with Rogers. However, Rogers declined to accept the offer and the prosecution proceeded to trial. "A trial court is prohibited from imposing a heavier sentence because the defendant has exercised his constitutional right to trial by jury than that which was offered the defendant in the plea bargaining process." Williams v. State, 784 So.2d 230(¶ 20) (Miss.Ct.App.2000). The general rule is that a sentence cannot be disturbed on appeal if the sentence does not exceed the maximum term allowed by statute. Fleming v. State, 604 So.2d 280, 302 (Miss.1992). "However, where the record reflects that the court remained aloof from the bargaining process or was unaware of the bargaining, the court does not err in sentencing [a] defendant to a greater sentence than that which was offered in the plea bargaining process." Williams, 784 So.2d at (¶ 20). Additionally, if the record reveals that the sentence was based on a pre-sentence report and prior convictions, then the court does not abuse its discretion where a greater sentence has been imposed. Id. The transcript reflects that the trial judge indicated that he intended to review the pre-sentence report.

¶ 11. Pursuant to Mississippi Code Annotated Section 41-29-139(b)(1) (Rev.2001), a person convicted of the sale of cocaine may be sentenced to "not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both...." The sentence given to Rogers is within the acceptable range of the statute, and absent more, is not a constitutional violation, and is not subject to review by this Court. Fleming, 604 So.2d at 302.

II.

Whether the trial court erred in denying Rogers' jury instructions D-2 and D-4 concerning reasonable doubt.

*272 ¶ 12. Rogers alleges that the trial court erred by denying instructions D-2[1] and D-4[2] regarding reasonable doubt.

¶ 13. "Jury instructions are to be read together and taken as a whole with no one instruction taken out of context." Harris v. State, 861 So.2d 1003(¶ 18) (Miss.2003). The court may refuse an instruction which "incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id. Therefore, "if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results." Smith v. State, 835 So.2d 927(¶ 23) (Miss.2002).

¶ 14. Instruction D-2, refused by the trial court, instructed the jury "that the burden of proof is on the State to prove every material allegation alleged in the indictment beyond a reasonable doubt." The trial court refused this instruction as being a repetitive instruction. The State's burden of proof was addre

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