Newberry v. State


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Docket Number: 2007-KA-00875-COA
Linked Case(s): 2007-KA-00875-SCT2007-KA-00875-COA2007-CT-00875-SCT
Oral Argument: 09-30-2008
 

 

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Court of Appeals: Opinion Link
Opinion Date: 12-09-2008
Opinion Author: LEE, P.J.
Holding: Affirmed

Additional Case Information: Topic: Sale of cocaine - Peremptory challenges - Other bad acts - Closing argument - Hearsay - M.R.E. 801©
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Chandler, Griffis, Barnes, Ishee, Roberts, and Carlton, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 05-16-2007
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: CONVICTED OF THE SALE OF COCAINE AND SENTENCED AS A HABITUAL OFFENDER TO SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE AND TO PAY A $1,000 FINE
District Attorney: John W. Champion
Case Number: 2006-703CD

Note: Audio Only

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: ASHANTE NEWBERRY




JOHN M. COLETTE



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE  

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Topic: Sale of cocaine - Peremptory challenges - Other bad acts - Closing argument - Hearsay - M.R.E. 801©

Summary of the Facts: Ashante Newberry was convicted of one count of sale of a controlled substance, cocaine. He was sentenced as a habitual offender to sixty years without eligibility for probation or parole. He appeals.

Summary of Opinion Analysis: Issue 1: Peremptory challenges Newberry argues that the State struck two minority jurors in violation of Batson, thus denying him a fair trial. With regard to the first juror, the reasons given by the State included the juror’s employment and demeanor. These have been deemed valid race-neutral reasons. With regard to the second juror, the State’s reasons were that she had only lived in DeSoto County for twenty-two months and that she had made no eye contact with the prosecutor. One of the reasons submitted by the State, lack of eye contact, has been deemed an appropriate race-neutral reason. Thus, there was no abuse of discretion on the part of the trial court in determining that the State’s two strikes on minority jurors were not the result of any purposeful discrimination. Issue 2: Other bad acts Newberry argues that the jury was allowed to hear evidence suggesting that the agent made subsequent undercover drug purchases from Newberry on two other occasions. It is a fundamental principle of law that a defendant cannot complain about evidence that he himself produced at trial. As the contact between Newberry and the agent subsequent to the date in question was elicited by Newberry, there was no error by the trial court in allowing the State to elaborate on the matter. Issue 3: Closing argument Newberry argues that the prosecutor made improper remarks during closing argument, thus denying him a fair trial. However, Newberry has waived the issue because he failed to object. Issue 4: Hearsay Newberry argues that the trial court abused its discretion by allowing hearsay into evidence. M.R.E. 801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Here, the testimony was not offered to prove that Newberry sold drugs to the agent but was offered to corroborate the agent’s testimony that he entered this particular house in order to conduct a drug buy.


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