Pate v. State, 53732
| Court | United States State Supreme Court of Mississippi |
| Citation | 419 So.2d 1324 |
| Docket Number | No. 53732,53732 |
| Parties | Joe PATE (a/k/a Joe Payton) v. STATE of Mississippi. |
| Decision Date | 29 September 1982 |
Page 1324
v.
STATE of Mississippi.
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.
PRATHER, Justice, for the Court:
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
Page 1325
(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...
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