Parker v. State
| Docket Number: | 2007-KA-00490-COA Linked Case(s): 2007-KA-00490-COA ; 2007-CT-00490-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-23-2008 Opinion Author: Ishee, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Sale of cocaine - Severance of counts - Continuance - Peremptory challenges - Mistrial - Cruel and unusual punishment Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Chandler, Griffis, Barnes, 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: 11-17-2006 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: CONVICTED OF COUNT I, SALE OF COCAINE, AND SENTENCE OF TWENTY YEARS, AND COUNT II, SALE OF COCAINE, AND SENTENCE OF FOURTEEN YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND A FINE OF $10,000 District Attorney: Forrest Allgood Case Number: 2006-0231-CR1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ATIBA PARKER |
LESLIE S. LEE,
CARRIE A. JOURDAN |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER | ||
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 cocaine - Severance of counts - Continuance - Peremptory challenges - Mistrial - Cruel and unusual punishment |
| Summary of the Facts: | Atiba Parker was convicted of two counts of the sale of cocaine and sentenced to twenty years on Count I and fourteen years on Count II. Parker appeals. |
| Summary of Opinion Analysis: | Issue 1: Severance of counts Parker argues that the court erred in refusing to sever Counts I and II of his indictment. To determine whether a multiple-count indictment is proper, the court considers whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. Here, the court noted that Counts I and II were separated by only one day, that the alleged crimes were the same, and that they involved substantially the same facts and witnesses. Thus, the court did not abuse its discretion in refusing to sever Counts I and II of the indictment. Issue 2: Continuance Parker argues that due to the fact that his counsel had completed a political campaign only a week prior to trial and was involved in a proceeding in court the day before his trial began, the court’s refusal to allow a continuance resulted in manifest injustice. At the time of his trial, Parker had been under indictment for six months. Discovery had been conducted, and subpoenas had been issued. His counsel was apparently experienced in handling drug-sale cases. Thus, there was no manifest injustice. Issue 3: Peremptory challenges Parker argues that the court erred in refusing to grant one of his counsel’s peremptory challenges. Very little voir dire was conducted with respect to the juror in question. However, the record indicates that both parties made use of knowledge that had been gleaned from a previous voir dire proceeding earlier in the week that examined the same venire, and over which the same circuit judge presided. The defense attorney, when questioned by the circuit judge, first represented to the court that the reason the juror was not struck during the previous proceeding was due to the fact that she ran out of challenges. The circuit judge disputed the truthfulness of the representation by defense counsel, and defense counsel responded that she was merely “kidding.” Given this situation, the judge did not err in finding that the reasons proffered by the defense attorney were merely pretextual. Issue 4: Mistrial Parker argues that the court erred in denying his motion for a mistrial after the prosecutor mentioned previous narcotics charges against Parker when questioning a witness. The judge instructed the jury to disregard the improper question, and all jurors indicated that they could follow the instruction to disregard. There is no evidence to indicate that the jurors failed to heed the circuit judge’s instruction. Issue 5: Cruel and unusual punishment Parker argues that his consecutive sentences of twenty years and fourteen years, totaling thirty-four years, constitute cruel and unusual punishment. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Parker’s sentence is within the limits permitted by statute in this state. |
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