Depriest v. State, 51411
| Decision Date | 05 December 1979 |
| Docket Number | No. 51411,51411 |
| Citation | 377 So.2d 615 |
| Parties | Edward DePRIEST v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., and BROOM and COFER, JJ.
Edward DePriest and James Crockett were jointly indicted in the Circuit Court of Lee County for the sale of "a quantity of Phenmetrazine, a Schedule II drug under the Uniform Controlled Substances Act of the State of Mississippi", to Shirlene Anderson, an undercover agent of the Mississippi Bureau of Narcotics.
After a full trial, the jury returned a verdict of "guilty as charged" against Edward DePriest. When the jury could not agree on a verdict for James Crockett, a mistrial was declared as to him. DePriest was sentenced to six years in a facility designated by the Department of Corrections, with two years suspended for good behavior.
DePriest has assigned three errors:
1. The trial court erred in refusing the defendant's request for a directed verdict or peremptory instruction since the state failed to meet its burden of proof.
2. The trial court erred in failing to give a circumstantial evidence instruction.
3. The trial court erred in allowing inconsistent jury verdicts for codefendant Crockett and defendant DePriest.
About 8:00 p.m. January 28, 1977, Shirlene Anderson and a confidential informant entered the Top Out Club in Tupelo. DePriest, the manager of the Club, came over to Agent Anderson's table and introduced himself. Shortly thereafter, James Crockett came over to Anderson's table and introduced himself. Crockett asked Anderson if she used drugs, and if she would like to buy some preludin, which is an amphetamine drug. Agent Anderson replied that she did not use drugs but would like to buy some for a friend, whereupon Crockett went up to the bar. Anderson testified:
"A DePriest was at the bar already. They carried on a conversation for a short period of time. Not a long conversation. Then he returned to the table with the drugs.
Q Did Crockett have the drugs in his hand when he returned?
A Yes, he had them in his hand wrapped up in some tissue paper. And he removed the drugs from this tissue paper and placed them in my hand and then I placed the money (a $20 bill) in his hand.
Q I see. Did you see Crockett hand the $20.00 to DePriest?
A I witnessed Crockett reach across the counter and hand DePriest something, which I believe to be money. Then I got up to go up there to make sure.
Q Did you see what, if anything, DePriest did with whatever he was handed?
A Yeah. DePriest didn't put the money in the cash register. I know that. He put it up under the cash register, down like a shelf like. And while I was sitting there, I noticed others purchasing drugs. And he was putting the money at the same place."
On redirect examination, Anderson testified:
"Q Could you tell whether or not Mr. Crockett received that white tissue paper when he went to the bar?
A Yes, he received it when he went to the bar.
Q Do you know whether or not he got it from DePriest?
A At that time DePriest was the only person standing talking to Crockett and at that particular place at that particular time."
This was not a wholly circumstantial evidence case. Part of the evidence was direct and part circumstantial. So it was a case for the jury to decide under proper instructions.
It was not a case for a directed verdict or peremptory instruction, so the trial court was correct in overruling defendant DePriest's motions for such instructions.
Defendant next contends that the trial court erred in failing to give a circumstantial evidence instruction. Not being a wholly circumstantial evidence case, the trial court was correct in not giving a circumstantial evidence instruction that the defendant must be found guilty beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.
It is apparent to this Court that counsel for defendant DePriest did not consider this a wholly circumstantial evidence case because when the instructions were being passed on the trial judge deleted from court's instructions 2 and 3 "and to the exclusion of every reasonable hypothesis." The court then remarked:
"All right, with those two deletions, are there any objections?"
To the court's question, DePriest's counsel answered:
"I have no objection, Your Honor."
Not only did DePriest's counsel not object to court's instructions 2 and 3 but also was granted defense...
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