Dear v. State
| Docket Number: | 2006-KA-01560-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-09-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of controlled substance - Theory of case jury instruction Judge(s) Concurring: KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-07-2006 Appealed from: Leake County Circuit Court Judge: Marcus D. Gordon Disposition: CONVICTED OF THE SALE OF A CONTROLLED SUBSTANCE AND ORDERED TO SERVE A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: Mark Sheldon Duncan |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | SANDRA D. DEAR |
EDMUND J. PHILLIPS, JR. |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of controlled substance - Theory of case jury instruction |
| Summary of the Facts: | Sandra Dear was convicted of the sale of a controlled substance and sentenced to twenty years. She appeals. |
| Summary of Opinion Analysis: | Dear argues that the judge erred in failing to allow a jury instruction which presented her theory of the case and that, as a result, she was unable to place before the jury the issue of whether she was the source of the cocaine. A defendant is entitled to have jury instructions given which present his theory of the case, but the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Dear suggested at trial she was not the source of the cocaine sold to the informant. However, the informant, the primary witness for the prosecution, testified that he purchased drugs from Dear and he positively identified her in court. There was no evidence submitted at trial by Dear to explain an alternate source for the cocaine. As such, the judge properly denied the request for the instruction. Further, another jury instruction sufficiently covered any question as to both whether Dear was the source of the cocaine involved and whether Dear intentionally and consciously sold the cocaine to the informant. |
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