Mary Baldwin v. State of Mississippi
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IN THE COURT OF APPEALS 04/08/97
OF THE
STATE OF MISSISSIPPI
NO. 94-KA-00809 COA
MARY BALDWIN A/K/A MARY T. BALDWIN A/K/A MARY THERESA BALDWIN
A/K/A "LADY BUG"
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
FRANK J. CAMPBELL
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY: GILMORE G. MARTIN
NATURE OF THE CASE: CRIMINAL - SALE OF A CONTROLLED SUBSTANCE
TRIAL COURT DISPOSITION: CONVICTED AND SENTENCED TO SERVE A TERM OF 40
YEARS IN THE CUSTODY OF THE MDOC
EN BANC
COLEMAN, J., FOR THE COURT:
Mary Baldwin was convicted in the Warren County Circuit Court of selling cocaine. She was
sentenced as a second or subsequent drug offender to serve a term of forty years in prison. On
appeal, she asserts that she was denied a fair trial and asks that we overturn her conviction because
(1) the indictment failed to provide the name or legal description of the purchaser; (2) the name of
the alleged purchaser was not provided until 24 days prior to trial and did not include an address; and
(3) the result of the two aforementioned errors results in trial by ambush.
We find that Baldwin’s first issue is without merit and the remaining issues are procedurally barred
because they were untimely made. Consequently, we affirm the decision of the trial court.
Baldwin’s first issue raises the question of whether the indictment was defective. We are not
persuaded that the indictment for the sale of cocaine was defective because it failed to state the name
of the alleged purchaser. The court in Jenkins v. State, 308 So. 2d 95, 98 (Miss. 1975), held that "the
identity of a person to whom contraband is delivered is not essential to an indictment for a ‘sale’ . . .
." Accord Young v. State, 245 So. 2d 26, 27 (Miss. 1971) (in sale of marijuana case, "[i]t was not
necessary to aver the name of the person who purchased the marijuana.").
Baldwin next complains that providing the name only, and not the address, of the alleged purchaser
just twenty-four days before trial is a violation of discovery. However, Baldwin never complained to
the trial court about either the sufficiency or the timeliness of the State’s response prior to her motion
for new trial. In failing to do so, Baldwin has waived the issue. Nathan v. State, 552 So. 2d 99,108
(Miss. 1989). Accord Hart v. State, 639 So. 2d 1313, 1317 (Miss. 1994).
Finally, Baldwin claims that the cumulative effect of the defective indictment and insufficient and
untimely discovery responses resulted in a trial by ambush. Since she did not raise this "cumulative
error" argument in the trial court, however, she may not raise it now. A trial judge may not be found
to be in error on an issue which was not presented to him for consideration. Howard v. State, 507
So.2d 58, 63 (Miss. 1987). "[F]ailure to make a contemporaneous objection at trial constitutes a
waiver of any error subsequently assigned." Moawad v. State, 531 So.2d 632, 634 (Miss. 1988).
Therefore this assignment of error is procedurally barred from review.
Furthermore, Baldwin’s argument substantively as well as procedurally fails because she has failed to
show that she was denied a fair trial. In Branch v. State, 347 So. 2d 957, 958 (Miss. 1977), the Court
held that "[t]here is a presumption that the judgement of the trial court is correct, and the burden is
on the appellant to demonstrate some reversible error to this Court." Baldwin has failed to overcome
that presumption.
Given the foregoing reasoning, we find that the trial court did not abuse its discretion in denying
Baldwin’s motion for a new trial. Accordingly we affirm Baldwin’s conviction.
THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF SALE OF
COCAINE AS A SECOND OR SUBSEQUENT DRUG OFFENDER AND SENTENCE OF
FORTY (40) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH SENTENCE TO RUN CONSECUTIVE TO ANY PREVIOUSLY
IMPOSED SENTENCE AND SUSPENDED FINE OF $1,000.00 IS AFFIRMED. COSTS
ARE ASSESSED TO WARREN COUNTY.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., DIAZ, HERRING, KING, PAYNE, AND
SOUTHWICK, JJ., CONCUR.
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