Sanders v. State, 54352

• Decision Date: 02 November 1983
• Docket Number: No. 54352,54352
• Citation: 439 So.2d 1271
• Parties: Eugene SANDERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1271

439 So.2d 1271

Eugene SANDERS v. STATE of Mississippi.

No. 54352.

Supreme Court of Mississippi.

Nov. 2, 1983.

Charles Victor McTeer, Willie Griffin, McTeer & Bailey, Greenville, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

BOWLING, Justice, for the Court:

Appellant Eugene Sanders was convicted in the Circuit Court of the Second Judicial District of Bolivar County for the sale of 33.6 grams of marijuana. As he had prior convictions for that offense, he was sentenced under Mississippi Code Annotated, Section 41-29-147 (1972), to serve a term of forty years under the supervision of the Mississippi Department of Corrections and ordered to pay a fine of $20,000. On appeal, appellant propounds the following assignments of error, to-wit:

I. EUGENE SANDERS WAS DENIED A FAIR TRIAL UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION INSOFAR

AS HIS CONVICTION WAS GAINED AS A RESULT OF THE PERJURED TESTIMONY OF NELSON BASS.

II. EUGENE SANDERS WAS DENIED HIS RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND THE TRIAL COURT ERRED TO THE PREJUDICE OF SAID EUGENE SANDERS BY ALLOWING THE PROSECUTION TO TRY THIS CAUSE IN THE NATURE OF A CONSPIRACY WITHOUT ALLEGING CONSPIRACY IN THE INDICTMENT.

III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL ON GROUNDS THE STATE'S FAILURE TO DISCLOSE THE PRIOR CRIMINAL RECORD OF ITS MATERIAL WITNESS, NELSON BASS, VIOLATED THE DUE PROCESS RIGHTS OF THE APPELLANT.

IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR MISTRIAL ON ACCOUNT OF PREJUDICIAL CONDUCT ON THE PART OF THE PROSECUTING ATTORNEYS IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

V. THE TRIAL COURT ERRED IN ADMITTING THE WHITE PAPER TOWELS INTO EVIDENCE IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

VI. THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE WITNESS BRADLEY HAMILTON TO TESTIFY ABOUT WHAT HE OBSERVED IN APPELLANT'S STORE FROM THE APPROPRIATE LOCATION JAMES WALKER STATED THAT HE OBSERVED THE DRUG TRANSACTION BETWEEN APPELLANT AND NELSON BASS UNDER THE SAME OR SIMILAR CONDITIONS IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.

VII. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

The evidence introduced by the state was that on the night of December 15, 1981, an undercover agent working with the Bolivar County Sheriff's Department went to the Town of Shaw for the purpose of purchasing contraband from sellers. Admittedly on this night, concentration was made on appellant Sanders. The undercover agent was experienced, having made 23 previous "buys." This agent testified that he went to Shaw in a vehicle furnished by the sheriff's department, after receiving instructions and purchase money from a deputy sheriff who was in charge of such undercover operations. The undercover agent visited several places in Shaw according to his testimony, and went into the Sanders' Food Market, where he saw Sanders, but did not attempt to make a buy personally, as people were there.

Later, sometime between 9 and 10 o'clock p.m., the agent picked up a man named Nelson Bass, who was asked to arrange for the purchase of marijuana by the agent. Bass, according to the agent, instructed the latter to park his car across the street from Sanders' Food Market and he would take the agent's money and secure the marijuana. The agent gave Bass $85 and requested that two ounces be purchased. The agent testified that he had a full and unobstructed view of the Food Market, including the interior. The vehicle was parked approximately 49 steps [measured later] from the market. He saw Bass tap on the door of the market, which was closed with the door locked. Sanders came to the door and let Bass in. There was a short conversation between the two men. Appellant then made a telephone call. Approximately five minutes later, Shirley Williams drove up to the market and parked her car and went inside. She had in her hand a package that appeared to be wrapped in some type of white paper. The agent saw Williams hand this package to Sanders, who in turn handed it to Bass. The latter came back across the street and gave the package to the agent. After leaving Bass, the agent placed his identifying marks on the packages containing what was thought to be marijuana, which bags were enclosed in a piece of white paper towel. No mark was made on the paper towel. The agent then met again with the deputy sheriff at their rendezvous. The deputy made his mark on the contraband and a tape recording was made of what had occurred. On proper motion, this tape was not submitted to the jury.

The deputy sheriff testified and without repeating the testimony, confirmed that of the agent in regard to the deputy's part of the incident that occurred that night. The state then connected the package of marijuana with that purchased by the undercover agent and identified the marijuana and its quantity as a result of the usual examination at the Mississippi Crime Laboratory.

The state's last witness was Nelson Bass. His testimony was essentially the same as that offered by the undercover agent. He testified he told Sanders he was securing the marijuana for another man who had two girls in Cleveland, who "wanted to get high." Bass testified positively and clearly that after being let into the store, he requested the buy of marijuana from Sanders, who in turn called Williams with whom he had been living for seven years and by whom he had a child. Williams, according to Bass, came to the store the same as related by the undercover agent and brought the marijuana into the store with the bags wrapped in the piece of white paper towel. She gave the package to Sanders, who in turn gave it to Bass in exchange for the money.

Bass testified that on several occasions prior to the time of the trial, Sanders came to him and tried to bribe him not to testify at the trial. Bass testified that Sanders offered him drugs and money while making these requests.

Appellant Sanders took the stand and denied everything including being in the store the night in question. He admitted that he was convicted of the sale of marijuana in 1975 and served a term in the Mississippi State Penitentiary, where he applied himself and became a carpenter.

Sanders testified that he and Shirley Williams have two children. One of whom was by Williams' prior marriage. Sanders further testified that he and his mother constructed the market building but that pursuant to beer licensing requirements, he was not allowed to associate himself with the market as long as it continued to sell beer since he had previously been convicted of a felony. His testimony was that the market was being run by Williams and Sanders' mother.

Williams testified that she and Sanders had been living together for seven years and she was the actual operator of the grocery business and had worked there from 8 a.m. until 9 p.m. the night in question and she then closed and went home to put her child to bed. She testified Sanders was not at the store on the night in question.

Appellant offered a witness who was well qualified as a surveyor and had been such for eighteen years. He testified that he had measured the distance from where the agent's car had been parked in front of the funeral home across the street and that distance from that area to the door of the market was 68 yards and one foot. Appellant tried to develop from this witness that he had parked his car at the same place the agent's car was parked on the night in question at about the same time at night and that he could neither see inside the building nor what was going on around the front door. There was an objection to this testimony and this objection was sustained by the trial court.

The state on redirect offered the deputy sheriff, who previously had testified. This witness stated that around 7:30 or 7:45 p.m. on the night in question, he drove into Shaw and drove down the street in front of Sanders Food Market. He testified that he saw Sanders in the market, but he did not stop for fear of exposing the undercover operation. He reaffirmed the undercover agent's testimony about the two meeting after the buy and exchanging the marijuana.

Under Assignment of Error No. 1, appellant contends that the testimony of witness Nelson Bass was perjury. The events leading to this contention were as follows: The trial was had on June 7, 1982. Sanders, Williams and Bass had been indicted jointly; however, on Motion of Sanders, there was a severance and he was tried separately. Bass had pled guilty and was awaiting sentencing. On June 15, 1982, appellant filed his petition for appeal. On June 15, 1982, appellant filed his motion for judgment of acquittal notwithstanding the verdict of the jury and ...