Pate v. State
| Decision Date | 29 September 1982 |
| Docket Number | No. 53732,53732 |
| Citation | 419 So.2d 1324 |
| Parties | Joe PATE (a/k/a Joe Payton) v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Calvin R. King, Durant, for appellant.
Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
Joe Pate was indicted and convicted in the Circuit Court of Holmes County for feloniously selling a quantity of cocaine, a Schedule II controlled substance. He was sentenced to twenty years in the Mississippi Department of Corrections and fined $10,000. Pate now appeals from that decision and assigns as errors the following:
(1) That the lower court committed error in overruling the defendant's motion for a mistrial since defendant's counsel was allegedly surprised by a discrepancy in a prosecution witness's testimony and a laboratory report statement delivered to defense counsel prior to trial; and (2) That the lower court committed error in failing to grant a peremptory instruction; and
(3) That the lower court committed error in failing to grant a motion for a new trial on the ground that the verdict of the jury was against the weight of the evidence.
Reginald Gage, an agent of the Mississippi Bureau of Narcotics, arranged through a telephone conversation to purchase cocaine from one "Jimmy Payton." On the following day he, together with surveillance officers in separate cars, traveled to J. J.'s Record Shop in Lexington, Mississippi for the purpose of making the purchase. Gage first knocked on the door of the record shop, but upon receiving no answer, he proceeded to an adjacent trailer located twenty to twenty-five feet from the record shop. Joe Pate invited him to come in and Pate retrieved a bag of cocaine from his refrigerator. At this time, the agent purchased approximately one ounce of cocaine for the price of $2,000. After Gage left Pate's residence, he and the surveillance officers met at a church to conduct a field test on the substance purchased. The test results confirmed that the substance was cocaine.
"Joe Pate" (a/k/a Joe Payton) was subsequently arrested and charged for selling a controlled substance. Prior to trial Pate's attorney filed a discovery motion seeking production of proposed evidence, including results of any scientific tests made in connection with the case, which would be used at the trial. In response to that motion, a Mississippi Crime Laboratory report was submitted to defense counsel. This report showed in typewritten remarks that the agent purchased approximately one ounce of cocaine from "Jimmy Payton." The typewritten remarks additionally indicated that the "purchase was made at J. J.'s Record Shop, Cemetery Street, Lexington, Mississippi." However, at some later time, the name "Jimmy" had been marked through and above it in ink the name "Joe" had been interlined.
At the outset of the trial, defense counsel objected to Gage's testimony that the purchase was made at Pate's residence instead of J. J.'s Record Shop. The defense counsel claimed that he was surprised because of this variance, but nevertheless, the objection was overruled and the trial proceeded.
During the trial, the defendant testified that he had never met Officer Gage and he further denied that he sold the cocaine. He added that Gage had perhaps confused him with his brother Jimmy Pate, who allegedly looked similar to the defendant. Gage, however, claimed that he knew both Jimmy and Joe Pate, and that he could distinguish between the two. Gage also testified that he originally thought that the defendant's last name was Payton since Pate pronounced his name to sound like "Payton" over the phone. The three surveillance agents testified that Gage left the trailer once to find his weighing scales, and that Gage also returned from the trailer with the cocaine. But, none of the surveillance agents actually witnessed the sale of the cocaine inside the residence or saw the alleged perpetrator of the crime. The jury returned a verdict of guilty.
The appellant contended that he was surprised, prejudiced and disadvantaged by Gage's testimony since the testimony was at variance with the facts as stated on the Mississippi Crime Lab report. However, the prosecution also sent a "request for notice of alibi" to the defense attorney prior to trial, and that request not only stated the date and time of the crime but it also stated that the scene of the crime was at the home of Joe Pate. This obviously should have alerted counsel of any potential discrepancy. Furthermore, the defendant admitted at trial that his trailer was not more than 20 feet behind the record shop. Surely, there can be no basis for surprise when these pertinent facts were known by the defendant. See Carraway v. State, 167 Miss. 390, 148 So. 340 (1933) ().
Additionally, the Court notes that the appellant's brief on this point cites no authority of law. We require counsel to not only make a condensed statement of the case but, must also support propositions of law with reasons and authorities. Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963); Johnson v. State, 154 Miss. 512, 122 So. 529 (1929); Bridges v. State, 154 Miss. 489, 122 So. 533 (1929). We therefore conclude that this contention is without merit.
The appellant also contends that the lower court should have granted him a peremptory instruction of not guilty. In passing upon a request for a peremptory instruction in a criminal case, the court considers as true all evidence submitted by the prosecution, together with any reasonable inferences. Bullock v. State, 391 So.2d 601 (Miss.1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3068, 69 L.Ed.2d 432 (1981); Stinson v. State, 375 So.2d 235 (Miss.1979). If this evidence is sufficient to support a guilty verdict, then the request for a peremptory instruction of not guilty will...
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