Harper v. State, 57002
| Decision Date | 29 July 1987 |
| Docket Number | No. 57002,57002 |
| Citation | 510 So.2d 530 |
| Parties | Larry DeWayne HARPER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
James C. Helveston, Edwards, Storey & Helveston, West Point, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, P.J., and DAN M. LEE and GRIFFIN, JJ.
Larry DeWayne Harper was indicted, tried and convicted in the Circuit Court of Clay County, for the sale of less than one (1) ounce of marijuana and was sentenced as an habitual offender, under Mississippi Code Annotated Sec. 99-19-81 (1972) to three (3) years in the custody of the Mississippi Department of Corrections and was fined three thousand dollars ($3,000). Harper has appealed to this Court and assigns five (5) errors in the trial below.
The appellant sold a package of marijuana, less than one (1) ounce, to an undercover agent of the State Bureau of Narcotics, in a car wash, West Point, Mississippi, after the agent and an informant had made contact with the appellant on Highway 45 and followed him to the car wash. The agent was wearing a body microphone and the transaction was taped by two other agents in a nearby car. That tape was introduced into evidence. Appellant was arrested after making the sale of marijuana to the agent.
Appellant testified at trial that he had never been convicted of a drug-related offense; that he bought less than an ounce of the marijuana for his own personal use at the time; that he had talked to the informant and agent about twenty (20) minutes and that, during most of the time, the informant was trying to get him to sell the marijuana; that he (appellant) just let him have it; that he had no intention of selling it to anyone else; that the informant had tried two or three times to recruit him to sell marijuana; that he had bought marijuana from the informant on a lot of occasions; that he knew where to purchase marijuana; that the marijuana was not supplied by the agent; and that he was entrapped into making the sale.
The appellant contends that the lower court erred (1) in overruling his demurrer to the indictment and receiving into evidence certified copies of convictions from the Circuit Court of Cook County, Illinois, which failed to meet the standards of MCA Sec. 99-19-81; (2) in overruling appellant's motion for continuance based on the absence of Wendell Wilson, confidential informant for the Mississippi Bureau of Narcotics; (3) in admitting into evidence a tape recording of the sale transaction which was incomplete, unintelligible in part, and which served to bolster the testimony of Officer Jackson; and (4) in refusing to instruct the jury on the defense of entrapment, requested by appellant in Instructions D-5 and D-6. We have carefully examined the record and briefs relating to those assigned errors, and find that each of them is without merit.
We address the remaining contention of appellant, i.e., that the lower court erred in overruling his motion to quash the jury panel based on the fact that the jury was composed of twelve (12) members of the white race and a white alternate, and that the appellant is a member of the black race, thus denying the appellant the right to a trial by a jury of his peers.
The question presented here was raised in the lower court on timely motion to quash the jury panel because blacks were excluded from the jury, and on motion for new trial. The parties stipulated that during the October 8, 1985, trial of appellant, Larry DeWayne Harper, on the charge of sale of a controlled substance, the district attorney, by exercise of his peremptory challenges, eliminated the black members of the jury panel so as to result in a all-white jury for the trial of the black appellant; that, if Assistant District Attorney Forrest Allgood were called to testify on the motion, his testimony would be that his jury selection, or the manner in which he exercised his peremptory challenges, was not racially motivated; and that defense counsel exercised all of...
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