Green v. State


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Docket Number: 2001-KA-00870-COA
Linked Case(s): 2001-CT-00870-SCT ; 2001-CT-00870-SCT ; 2001-CT-00870-SCT ; 2001-CT-00870-SCT

Court of Appeals: Opinion Link
Opinion Date: 03-25-2003
Opinion Author: Lee, J.
Holding: Affirmed

Additional Case Information: Topic: Criminal: Sale of cocaine - Right to speedy trial - Other crimes’ evidence - Chain of custody - Lesser-included offense instruction - Non-included offense instruction - Excessive sentence - Sufficiency of evidence
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Irving, Myers and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 05-22-2001
Appealed from: Hinds County Circuit Court
Judge: L. Breland Hilburn
Disposition: CONVICTED OF SALE OF COCAINE AND SENTENCED TO SERVE THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER, WITHOUT PAROLE, PROBATION, REDUCTION OR SUSPENSION OF SENTENCE.
District Attorney: Eleanor Faye Peterson
Case Number: 00-0-160

Note: Appellant''s motion for rehearing is denied. Griffis, J., not participating.

  Party Name: Attorney Name:  
Appellant: Michael Green




PHILLIP BROADHEAD THOMAS M. FORTNER



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN  

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Topic: Criminal: Sale of cocaine - Right to speedy trial - Other crimes’ evidence - Chain of custody - Lesser-included offense instruction - Non-included offense instruction - Excessive sentence - Sufficiency of evidence

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Michael Green was convicted of the sale of cocaine within 1000 feet of a public park. He was sentenced as an habitual offender to thirty years. He appeals.

Summary of Opinion Analysis: Issue 1: Right to speedy trial Green argues that his constitutional right to a speedy trial was violated. Factors to consider include length of delay, reason for delay, defendant's assertion of his right, and resulting prejudice. The length of delay was 16 months which is presumptively prejudicial. Because there is no specific accounting given for the delay, this factor weighs against the State. There is no indication that Green ever filed a motion demanding a speedy trial. Green has failed to show any prejudice. Viewing the totality of circumstances, Green's right to speedy trial was not violated. Issue 2: Other crimes’ evidence Green argues that the court erred by allowing the State to introduce evidence of Green's past criminal history and failing to give a limiting instruction. In light of the overwhelming weight of evidence presented including a videotape of the transaction, Green's admission to the present charge, and testimony from officers who participated in the surveillance efforts, any error which occurred as a result of the officer’s statement that they had dealings with the defendant in the past was harmless. Issue 3: Chain of custody Green argues that the court erred in admitting the cocaine into evidence because the chain of custody was not established. The test for chain of custody is whether there is any positive indication that the evidence has been tampered with or substituted. Here, there was no positive indication of tampering or substitution. The officer testified that the rock was given to him and he put it in a bag; that he used a field test kit to determine that cocaine was present in the rock; and that he then sealed the bag, filled out the tag and delivered it to the evidence technician. Issue 4: Lesser-included offense instruction Green argues that the court erred in denying a lesser-included offense instruction, because he was guilty at most of false representation of substance since the rock sold was fake. To warrant a lesser-included offense instruction, the more serious offense must include all the elements of the lesser offense, i.e., it is impossible to commit the greater offense without at the same time committing the lesser included offense. Here, proof of Green’s guilt of the elements for sale of a controlled substance would not constitute proof of the elements of false representation. Thus, a lesser-included instruction was not justified. On rehearing, Green argues that his point actually included the related doctrine of lesser, nonincluded offense instructions. Among the reasons for allowing an instruction on an offense that is not included within the charged offense but which arose out of the same operative facts is the enormous disparity in maximum punishments in the two potential offenses. At trial when the issue was addressable, Green presented the matter strictly as a lesser-included offense issue. Therefore, the issue is procedurally barred. In addition, the absence of the instruction was not such a significant matter as to rise to the level of plain error. Issue 5: Excessive sentence Green argues that his thirty-year sentence was excessive for sale of a single rock of cocaine. A sentence will not be disturbed so long as it does not exceed the maximum term allowed by statute. Green was sentenced to the maximum allowable by law because he was an habitual offender having twice previously been convicted of sale of cocaine. Issue 6: Sufficiency of evidence Green challenges the weight and sufficiency of the evidence. The officers involved testified as to the transaction, the substance sold tested positive for the presence of cocaine, and Green testified that he did indeed sell the substance to the undercover officer. These facts support the verdict.


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