Herring v. State
| Decision Date | 13 February 1997 |
| Docket Number | No. 93-KA-01183-SCT,93-KA-01183-SCT |
| Citation | 691 So.2d 948 |
| Parties | Rico HERRING v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
David L. Walker, Batesville, for Appellant.
Michael C. Moore, Attorney General, Jackson, Jolene M. Lowry, Sp. Asst. Attorney General, Jackson, for Appellee.
Before PRATHER, P.J., and PITTMAN and McRAE, JJ.
On October 1, 1990, Rico Herring was indicted by the grand jury of Panola County, Mississippi on three counts: one count of conspiracy to sell a controlled substance in violation § 97-1-1(a) of the Miss.Code Ann., and two counts of sale of a controlled substance in violation of § 41-29-139(a)(1) of the Miss.Code Ann. Herring's case was transferred from Panola County Youth Court to the Circuit Court of Panola County. Herring had a jury trial on October 4 and 5, 1993. He was found guilty on all counts. The circuit court judge sentenced Herring to serve twenty (20) years on the conspiracy count and thirty (30) years each on the two counts of sale of a controlled substance. All sentences were to run consecutively. Aggrieved by the decision of the court below, Herring perfected this appeal and assigns the following as error:
I. WHETHER THE CIRCUIT COURT JUDGE ERRED IN DENYING HERRING'S MOTION FOR A SPEEDY TRIAL.
II. WHETHER THE CIRCUIT COURT JUDGE ERRED IN DENYING HERRING'S MOTION TO SUPPRESS HIS STATEMENT TAKEN ON JUNE 1, 1990.
III. WHETHER THE VERDICT OF THE JURY OF GUILTY ON ALL COUNTS OF THE INDICTMENT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
IV. WHETHER THE CIRCUIT COURT'S SENTENCE OF TWENTY YEARS ON COUNT ONE, THIRTY YEARS ON COUNT TWO, AND THIRTY YEARS ON COUNT THREE TO BE SERVED CONSECUTIVE TO EACH OTHER IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHT AMENDMENT TO THE UNITED STATES CONSTITUTION.
After a careful review of the record and briefs in this case, we find that all assignments
of error are without merit and thus, the lower court should be affirmed.
David Bryan, Sheriff of Panola County, testified on behalf of the State that on or about May 31, 1990, he learned that crack cocaine was being sold at the Lester Street Apartments in Batesville, Mississippi. At this time, Bryan hired Michael Diggs as an undercover informant for operations in Panola County. He also contacted the Water Valley Police Department to arrange for one of its officers, James Wright, to help with the under cover operation. The Batesville Police Department and the Mississippi Bureau of Narcotics (MBN) were also notified.
On May 31, 1990, Diggs was sent to the Lester Street Apartments in Batesville with a surveillance team to make a purchase of drugs. Diggs was fitted with a body transmitter and searched and Bryan gave him forty dollars ($40) in two twenty (20) dollar bills with which to make the buy. The serial numbers on the bills had been recorded to aid in tracking of the location of the funds. After Diggs bought the drugs, he returned to the station and gave Bryan two rocks of crack cocaine. Bryan turned over the rocks of crack cocaine to the MBN so that the rocks could be submitted to the Mississippi Crime Lab for testing.
On June 1, 1990, another purchase was planned by Bryan, Diggs and Wright. Based upon the information that they had previous to this day, they prepared a search warrant for the apartment and sent Diggs and Wright with another surveillance team in an effort to make a purchase and subsequent arrest. Again body transmitters were used. After the purchase of cocaine was made on June 1, Wright signaled to the other officers over his transmitter with a preset signal that a successful buy had been completed. At this time, the other officers converged upon the scene and four arrests were made. Herring was among the four who were arrested. The other three persons were Casey Childs, Sammy Childs, and Lavell Draper. 1 All of these people are related by blood; second cousins and an uncle.
Casey, Herring's second cousin, testified that he is the second cousin of Lavell Draper and a brother to Sammy. At trial, Casey testified that he would get crack cocaine rocks from Sammy, sell them, and give the money to Sammy. Casey was arrested and taken into custody on June 1, 1990, at which time he gave a statement to Bryan. In that statement, Casey told Bryan that Herring gave him rocks to sell and that he sold $365 worth and gave the money to Herring. Casey stated that he probably told Bryan that, but that he was confused, scared, and did not remember. Again, at trial, Casey testified that he got the crack cocaine from Sammy. Further, Casey stated that sometimes Herring was around when Sammy would give him the crack cocaine and sometimes he was not. Bryan took the stand again and testified to the statement made by Casey at the station. At that time, Casey's story was that Herring gave Casey crack cocaine, Casey sold it and gave the $365 to Herring.
Diggs testified that in 1990 he worked for the City of Batesville and was involved in undercover investigations for Bryan. Diggs stated that on May 31, 1990, he went to 117-G at the Lester Street Apartments where he contacted a black male known as "Ricardo." In court, Diggs identified Herring as the black male called "Ricardo." Diggs testified that Herring and Draper were inside the apartment and that he asked for Sammy. After being told that Sammy was not there, the two men asked what Diggs wanted. He replied "two," meaning two rocks of crack cocaine. He then received two rocks from Herring. Diggs then gave Herring the two twenty-dollar bills which had been given to him by Bryan. Diggs returned to the station with Bryan to make a report.
The next morning, June 1, Diggs returned to the apartment. Herring, Draper and Sammy were there. Diggs testified that the three were "cooking up" crack cocaine and that he told them he would probably be back Wright, a police officer with the Water Valley Police Department, testified that he was a member of the United States Marine Corps Reserve and had served in the Persian Conflict for six months. He also stated that he was contacted by Bryan personally and that Bryan requested his assistance in an undercover drug operation in Batesville, Mississippi. Wright's version of the events was substantially similar to that of Diggs, and Wright also identified Herring as the man who passed the cocaine to Draper for sale. He further added that he saw Herring clearly and very clearly saw Herring pass two rocks of crack cocaine to Draper.
when he got paid. Diggs then went to Bryan and informed him of his visit to the apartment. At this time, Bryan contacted Wright to help with an undercover operation. Wright and Diggs met with Bryan and several other law enforcement officers to discuss the procedure to be followed. Both men were searched and Wright was fitted with a body transmitter and was given eighty dollars ($80) by Agent Rod Waller of the MBN. Diggs and Wright were then sent back to apartment 117-G of the Lester Street Apartments where they approached Sammy, Draper and Herring who were standing in front of the apartment building. Diggs testified that he and Wright approached Herring and Diggs told him that Wright wanted "two." At that time, Herring told Draper that it was okay to sell to Wright and Diggs, and Draper began to deal right there in the open. Wright told them that they should not deal right out in front of the building and asked Draper if they could go around the corner. When the group walked to the side of the building, Diggs looked back and saw Herring pass Draper two rocks of crack cocaine, which Draper in turn gave to Wright. Wright negotiated a price of thirty-five dollars ($35) rather than forty dollars ($40) for the cocaine, so Draper returned with some change. At that time, Bryan and the other officers came and arrested Draper, Sammy, Casey, and Herring
Rod Waller, currently a special agent with the Drug Enforcement Agency, testified that during May and June of 1990 he was working with the MBN in Panola County. He stated that after the buy was over on May 31, 1990, Bryan turned the crack cocaine over to him to keep until they could be delivered to the crime lab. Agent Waller delivered the substance to the crime lab and checked them out for trial. The substance was introduced into evidence as Exhibit Seven. Agent Waller further testified that the money used in the May 31 operation was recovered from Herring's possession upon his arrest. At the time Herring was arrested, he was in possession of $2,475 that he acknowledged at the time as being his own. Agent Waller also testified that at the time Herring was unemployed. Along with the two rocks of crack cocaine from the May 31 buy, Agent Waller received two rocks of crack cocaine from Wright as a result of the June 1 buy. These rocks of crack cocaine were introduced into evidence as Exhibit Ten. The two twenty-dollar ($20) bills which were given to Wright for the June 1, 1990, purchase were recovered from Draper, who acknowledged that they were his.
Teresia Hickmon, a forensic scientist with the Mississippi Crime Laboratory, testified that Exhibits Seven and Ten contained crack cocaine. Jason Crestman, deputy sheriff of the Panola County Sheriff's Department, testified that on June 1, 1990, he searched the person of Herring, who he identified in court. He found in Herring's shoes, somewhere between two thousand four hundred ($2400) and two thousand five hundred ($2500) dollars.
Herring took the stand and testified in his own defense. He stated that on May 31, 1990, he was not present at the Lester Street Apartments, but was in Sardis at his great-grandmother's home. Herring admits being present on June 1, 1990, but stated that he did not hand anything to Draper and that everyone who testified as to his involvement was lying and making it up. The large amount of money on his person at the time of arrest, Herring said, was money given to him to "hold"...
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