White v. State

761 So. 2d 221, 2000 WL 251741
CourtCourt of Appeals of Mississippi
DecidedMarch 7, 2000
Docket98-KP-00084-COA
StatusPublished
Cited by24 cases

This text of 761 So. 2d 221 (White 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
White v. State, 761 So. 2d 221, 2000 WL 251741 (Mich. Ct. App. 2000).

Opinion

761 So.2d 221 (2000)

Michael WHITE a/k/a Michael E. White, Appellant,
v.
STATE of Mississippi, Appellee.

No. 98-KP-00084-COA.

Court of Appeals of Mississippi.

March 7, 2000.
Certiorari Denied June 29, 2000.

*222 Lewis J. Weeks, Jr., Wesson, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

EN BANC.

*223 ON MOTION FOR REHEARING

PAYNE, J., for the Court:

¶ 1. The original opinion is withdrawn and the following is substituted therefor. The motion for rehearing is denied.

PROCEDURAL HISTORY

¶ 2. Michael White was convicted in the Copiah County Circuit Court of one count of sale of cocaine in violation of Miss.Code Ann. § 41-29-142 (Rev.1993). Since White was also convicted of selling cocaine within 1,500 feet of a church in violation of Miss.Code Ann. § 41-29-139 (Rev.1993), the trial judge gave White a sixty-year sentence. In our original opinion we affirmed White's conviction, but reversed his sentence in light of the Mississippi Supreme Court decision of Davis v. State, 724 So.2d 342 (Miss.1998). In this modified opinion, we do the same.

FACTS

¶ 3. On December 17, 1996, Levon Turner, an informant acting undercover for the Hazlehurst Police Department, engaged in a purchase of crack cocaine from Michael White. Prepared for an undercover purchase of drugs with county money and wired with a body microphone by Officer Ron Crew, Turner had a prebuy meeting with Crew and Officers Keith Mangold and Chris Stanley. Turner was searched by Crew to make sure there was no contraband on his person.

¶ 4. Officer Crew drove Turner to a street corner near the targeted area and dropped Turner at that location. When Turner left Crew's automobile, Turner did not stay in Crew's sight for very long, but Crew testified that he was able to provide auditory surveillance. Officers Mangold and Stanley did not maintain visual surveillance, but were close to the location to provide backup.

¶ 5. Turner testified that he went to an apartment where he found Michael White and asked him what he could get for thirty-five, and White replied he could get two for forty, meaning two rocks of cocaine for forty dollars. The exchange was made, and Turner returned to Crew's vehicle where he gave Crew two rocks of crack cocaine. Turner then returned to the police station with the officers. After returning to the police station, Officer Mangold searched Turner and found crumbs of cocaine in Turner's left coat pocket.

¶ 6. During the State's case-in-chief, the distance between the apartment and church of 700 feet, was established through measurement of the distance by Officer Crew who had worked as a surveyor in the 1970's and 1980's.

¶ 7. The defense placed several witnesses on the stand who testified that White did not live in the apartment where the crack cocaine was sold. Also, George Turner, the confidential informant's brother, testified for the defense. George Turner testified that his brother had used drugs, and had been committed to a rehabilitation clinic and to the State Mental Hospital. He testified that in his opinion his brother was not a truthful person.

¶ 8. After deliberating, the jury found White guilty as charged.

ARGUMENT AND DISCUSSION OF THE LAW

STANDARD OF REVIEW

¶ 9. White raises three issues for this Court's review (1) the trial court was incorrect in failing to grant a judgment notwithstanding the verdict due to the overwhelming weight of the evidence; (2) the State was allowed to strike jurors because of their race, which violated Batson; and (3) White's sentence of sixty years constituted cruel and unusual punishment and should be set aside.

¶ 10. White argues that the trial court erred in failing to grant a judgment notwithstanding the verdict as the jury's verdict was against the overwhelming weight of admissible evidence. White improperly combines two distinct legal issues. *224 The standard for reviewing denial of a new trial goes to the weight of the evidence and the standard for reviewing the denial of a JNOV is whether or not the evidence was sufficient to warrant such and whether fair-minded jurors could have arrived at the same verdict. The standard for a JNOV is not whether it was against the overwhelming weight of the evidence.

¶ 11. In White's first issue we address his post-trial motion for judgment notwithstanding the verdict.

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with McClain's guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence ... We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

McClain v. State, 625 So.2d 774, 778 (Miss. 1993) (citations omitted).

¶ 12. Our standard of review regarding a motion for new trial is stated in McClain:

Moreover, the challenge to the weight of the evidence via motion for a new trial implicates the trial court's sound discretion. Procedurally such challenge necessarily invokes Miss. Unif.Crim.R. of Cir. Ct. Prac. 5.16. New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion, and on review we accept as true all evidence favorable to the State.

McClain, 625 So.2d at 781 (citations omitted).

¶ 13. The next issue White brings for our review regards the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Our standard for reviewing Batson questions is set forth in Lockett v. State, 517 So.2d 1346 (Miss. 1987). In Lockett the court said:

Batson clearly places upon the trial court the duty to determine whether purposeful discrimination has been shown ... Batson states that "ordinarily," a reviewing court should give the trial court "great deference." ... [which] has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous.

Lockett, 517 So.2d at 1349-50 (citations omitted) (emphasis added). In his brief White mentions specific jurors who were struck from the panel allegedly due to their race. In this opinion we examine the reasons each of these persons was contested as a juror and review their situations in accordance with Batson rules stated above.

¶ 14. Regarding the third issue of White's sentence's being cruel and unusual, in the present case, Miss.Code Ann. § 41-29-139

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Bluebook (online)
761 So. 2d 221, 2000 WL 251741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-missctapp-2000.