Terry Walker v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-00655-COA
TERRY WALKER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
3/2/2005
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
MOSE LEE SUDDUTH
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTION OF SALE OF A CONTROLLED
SUBSTANCE AND SENTENCE OF SEVEN
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND FIVE YEARS POSTRELEASE SUPERVISION.
AFFIRMED: 10/10/2006
BEFORE KING, C.J., SOUTHWICK AND IRVING, JJ.
KING, C.J., FOR THE COURT:
¶1.
On February 25, 2005, Terry Walker was convicted by a Lowndes County Circuit Court jury
of sale of a controlled substance and sentenced to a term of seven years in the Mississippi
Department of Corrections. Walker raises the following issues on appeal.
I.
WHETHER THE TRIAL COURT ERRED IN DENYING WALKER’S MOTION
FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE
ALTERNATIVE, A NEW TRIAL.
II.
WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-7 ON
LESSER INCLUDED OFFENSE.
Finding no error, we affirm.
FACTS
¶2.
Sherry Parker had worked as a confidential informant for Deputy Steve Hatcher of the
Lowndes County Sheriff’s Department for approximately five years. Parker was paid $100 for her
participation in each undercover narcotics purchase leading to an arrest. On January 27, 2002,
Parker called Hatcher and informed him that she could purchase cocaine from an individual named
Terry Walker. At the pre-buy meeting, Hatcher gave Parker $100 to purchase the cocaine and set
up a surveillance camera in her automobile.
¶3.
When Parker arrived at the warehouse where Walker worked, Walker met her outside, took
the $100, and told her that it would take twenty minutes for him to purchase the cocaine from a third
party. Walker and Parker met back at the warehouse at the designated time. Walker asked Parker
to come inside and smoke some of the cocaine with him. Parker refused, but told Walker to keep
a small amount of the cocaine for himself. The transaction was successfully captured on the
surveillance tape, and Walker was subsequently arrested for sale of a controlled substance.
¶4.
Walker’s defense at trial was entrapment. He testified that Parker had called him several
times on the day of the controlled buy, asking him to obtain cocaine for her. Walker testified that
he initially refused, but Parker continued calling him sounding very upset about her mother being
sick, so Walker submitted to her request. He further testified that he did not deal drugs; he was
merely the middleman in the transaction.
ANALYSIS
I.
WHETHER THE TRIAL COURT ERRED IN DENYING WALKER’S MOTION
FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE
ALTERNATIVE, A NEW TRIAL.
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¶5.
A request for JNOV attacks the legal sufficiency of the evidence, while a request for a new
trial attacks the weight of the evidence. Turner v. State, 910 So. 2d 598, 601-02 (¶¶ 10,16) (Miss.
Ct. App. 2005). In reviewing the legal sufficiency of the evidence, this Court examines all of the
evidence in the light most favorable to the verdict to determine whether each element of the charged
offense was proven beyond a reasonable doubt. Holloway v. State, 914 So. 2d 817, 819 (¶5) (Miss.
Ct. App. 2005). The State must be given the benefit of all reasonable inferences that may be drawn
from the evidence. Id. A challenge to the weight of the evidence results in reversal of a conviction
only if allowing the conviction to stand would sanction an unconscionable injustice. Johnson v.
State, 926 So. 2d 246, 251 (¶18) (Miss. Ct. App. 2005).
¶6.
To support his legal sufficiency and weight of the evidence challenges, Walker argues on
appeal that any rational juror should have believed his testimony over that of Parker’s. He points
to the fact that his only encounter with the law was a misdemeanor DUI offense in 1990, whereas
Parker had previously received sixty-four separate false pretense convictions and had been arrested
for prescription forgery, possession of cocaine, and sale of cocaine. However, it is the province of
the jury to determine the credibility of a witness and the weight to be afforded to the testimony of
that witness. Durdin v. State, 924 So. 2d 562, 565 (¶12) (Miss. Ct. App. 2005). Furthermore, even
without Parker’s testimony, the jury viewed the surveillance tape which captured the transaction.
¶7.
As to Walker’s contention that he was merely the middleman, this Court has previously
rejected such an argument. In Lyons v. State, 766 So. 2d 38 (¶3) (Miss. Ct. App. 2000), Lyons
offered to purchase drugs for a friend/confidential informant in exchange for some of the drugs.
Lyons was convicted for sale of a controlled substance, and on appeal she argued that she was merely
a conduit. Id. at 40 (¶9). We held that the evidence of Lyons taking the money from the confidential
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informant and delivering two rocks of crack cocaine to the confidential informant was legally
sufficient to support a charge of sale of a controlled substance. Id. at (¶10).
¶8.
Walker also submits that the jury misunderstood, or was confused by, his entrapment defense.
We disagree. The jury was given an instruction offered by defense counsel which clearly and
accurately defined entrapment as,
the act of inducing or leading a person to commit a crime not originally contemplated
by him for the purpose of trapping him for the offense. In other words, where a
person has no previous intent or purpose to violate the law, but is induced or
persuaded by law enforcement or their agents to commit a crime, that person is a
victim of entrapment and the law forbids that person’s conviction in the case.
Clearly, the jury rejected this argument. This issue is without merit.
II.
WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-7.
¶9.
Refused instruction D-7 was a lesser-included offense instruction, which advised that if the
State failed to prove one or more elements of sale of a controlled substance, the jury may find
Walker guilty of possession of cocaine.
¶10.
Lesser-included offense instructions are properly refused where the defendant admits on the
stand that he has committed the greater offense. Johnston v. State, 730 So. 2d 534, 537 (¶15) (Miss.
1997). Although Walker denied being a “drug dealer,” he admitted to taking $100 from Parker,
obtaining crack cocaine from a third party, delivering the crack cocaine to Parker, and keeping some
of the crack cocaine as compensation. Accordingly, the trial court properly refused the lesser
included offense instruction.
¶11. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF
SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND FIVE YEARS POST-RELEASE SUPERVISION IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND ROBERTS, JJ., CONCUR
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