source: Caselaw Access Project

author: SMITH, PRESIDING JUSTICE,

license: Public Domain

text:
    James V. WHITE a/k/a James Vonell White v. STATE of Mississippi.
    No. 2000-KA-01034-SCT.
    Supreme Court of Mississippi.
    April 10, 2003.

      Robert M. Ryan, Thomas M. Fortner, Jackson, Larry Neal McMurtry, Carthage, Charles R. Saltzman, for appellant.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
   ON MOTION FOR REHEARING

SMITH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. The motion for rehearing is granted. The previous opinions of this Court are withdrawn, and this opinion is substituted therefor.

¶ 2. James V. White appeals to this Court from the Circuit Court of Hinds County where he was convicted of Count II, possession of more than one ounce of marijuana with the intent to distribute, but found not guilty of Count I, sale of more than one ounce of marijuana. White raises three issues. First, he challenges the validity of the search of his apartment. Second, he contends that the trial court improperly denied his request for a limiting instruction as to statements regarding his prior bad acts. Finally, he contends that the trial court erred in refusing to give lesser-included offense instructions to the jury. We note the issue of telephonic search warrants as an issue of first impression, and we reject such search warrants. This is a subject for the Legislature as such searches are primarily creatures of statute. However, we adopt the good faith exception recognized in United, States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and find the officers acted reasonably. Finding no reversible error, we affirm the judgment of the trial court.

FACTS

¶ 3. Jeremy Stevens and Brandon Wig-ley were suspected of dealing marijuana. On January 28, 1998, the Warren County Sheriffs Department set up a “sting” operation in which undercover officer Tim Williams attempted to buy $40 of marijuana from Stevens. Stevens offered to find some marijuana for Williams if he would front him $40. Stevens was given $40 to make the buy.

¶ 4. Wigley picked up Stevens, and after an unsuccessful trip to Delta, Louisiana, the pair headed to Hinds County. The Hinds County Sheriff was called, and arrangements were made for Hinds County officials to assist the Warren County investigators in the undercover operation. Stevens and Wigley arrived in Clinton and proceeded to White’s apartment where they bought marijuana. Later Wigley’s car was pulled over, and the two were arrested at the Hinds/Warren County line.

¶ 5. Both the White residence and Wig-ley’s car were placed under surveillance after the buy took place. The officers watching White’s apartment grew concerned that he might be tipped off as a result of Stevens’s and Wigley’s arrests. Detective Jeff Crevitt testified that some friends of Jeremy’s at Jeremy’s trailer were “expecting Stevens and Wigley to return to Warren County.” Hinds County Judge Chet Henley was contacted by Officer Larry lies by telephone, and an “oral/telephonic search warrant” was procured for the White residence. A search of the apartment yielded marijuana, pagers, cell phones, bank statements, a Crown Royal bag, a gun and the $40 given to Stevens to make the buy. White was taken into custody.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUITS OF A SEARCH CONDUCTED BY LAW OFFICERS PURSUANT TO A TELEPHONIC SEARCH WARRANT AS SAID SEARCH WAS THE SAME AS A WARRANT-LESS SEARCH AND VIOLATED THE RELEVANT PROVISIONS OF THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

¶ 6. White contends that the trial court erred in denying his motion in limine to exclude the fruits of what he alleges was an illegal search. It is true that the officers did not have a paper warrant when they searched White’s apartment. They had, however, received approval of the search from a county judge resulting from a phone call by one of the officers to the judge.

¶ 7. While not statutorily provided for in Mississippi, telephonic search warrants could possibly act as a buffer against war-rantless searches which often undermine Fourth Amendment protections. In the trial court’s ruling as to the reasonableness of the search, the judge stated his belief that this Court would prefer “a finding of probable cause by a neutral and detached magistrate telephonically” in a situation where the only other alternative would be a warrantless search. While this may be true, there are other problems with this procedure which warrants a detailed examination and discussion by this Court. If exigent circumstances existed so as to preclude obtaining a proper search warrant, as long as the officers were in good faith in their request and followed other procedural safeguards, evidence found as a result of the issuance of a “telephonic search warrant” would be admissible at trial. However, nothing under current Mississippi law provides for this type of search warrant.

¶ 8. White argues that to uphold the “telephonic search warrant” would be a violation of the Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Though Rule 41 of the Federal Rules of Criminal Procedure sets out procedures to obtain a “telephonic search warrant,” we have no such rule, and our state constitution says nothing about such warrants. White also submits that in the absence of a specific statute, telephonic search warrants are contrary to the applicable law of Mississippi and that the search of his apartment should be treated as a warrantless search.

¶ 9. It is for this Court as the final interpreter of Mississippi’s Constitution to determine the legality of this type of search. Penick v. State, 440 So.2d 547, 551 (Miss.1983). This Court finds that the search was a warrantless search, as Mississippi has yet to recognize the viability of telephonic warrants. In Boyd v. State, 206 Miss. 573, 40 So.2d 303 (1949), we reversed a conviction based on the illegality of a warrant. There the officer had signed the affidavit at his office, and a judge in another county signed off on the warrant. The officer never appeared before the judge, and thus the warrant was illegally obtained. We note that the process of appearing before the judge is important in Mississippi. The current status of our law requires the affiant’s and the affidavit’s presence before the issuing magistrate before a search warrant may properly issue. See Miss.Code Ann. § 41-29-157(a)(2) (2001). The form of an affidavit for a search warrant also indicates the presence of the affiant at issuance. See Miss.Code Ann. § 99-25-15 (2000). Thus, by requiring a sworn affidavit before issuance of a warrant, we insure the affidavit is free from facts which might be discovered later and included in a subsequently filed affidavit to support the finding of probable cause. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

¶ 10. In the case sub judice, no recording was made of the phone call in which this search warrant was authorized, and no paper copy of the search warrant existed at the time of the search. There does exist a document made under oath in this record which resembles a search warrant affidavit, executed by the narcotics officer the day after this search. Also in the record is a warrant bearing the judge’s signature which also was executed the day afterwards.

¶ 11. The several states that have accepted telephonic warrants require specific procedures most of which were not met here. The Federal Rules of Criminal Procedure allow for such warrants, and map out a procedure complying with constitutional mandates. See Fed.R.Crim.P. 41. Such a process should certainly be allowed considering the changing times and advancements in technology. Further, more than one-third of the States have expressly adopted such warrants by statute, court rule or case law. See generally Ala.R.Crim. P. 3.8(b); Alaska Stat. §§ 12.35.010 and 12.35.015 (1991); Ariz. Rev.Stat. § 13-3914 (1999); Cal.Penal Code § 1526 (1998); Idaho Code § 19-4404 (1994); Ind.Code § 35-33-5-8 (1998); Iowa Code § 321J.10 (1998); § 462A.14D (2000) (However, these two code sections allow for telephonic warrants in cases where an officer is demanding blood or urine specimens from those suspected of driving or operating a boat while under the influence. Iowa does not authorize telephonic search warrants in general cases. See Iowa Code § 808.3 (1998)); Kan. Stat. Ann. § 22-2502 (1995); La.Code Crim. Proc. Ann. art 162.1 (1999); Mich. Comp. Laws Ann. § 780.651 (1998); Minn. R.Crim. P. 36.08; State v. Andries, 297 N.W.2d 124 (Minn.1980); MontCode Ann. § 46-5-221 (1991); Neb.Rev.Stat. §§ 29-814.03 & 29-814.05 (2001); Nev.Rev.Stat. 179.045(2) (1997); N.J. Rules of Court 3:5-3; N.Y.Crim. Pro. Law §§ 690.35 & 690.36 (1998); N.C. Gen. Stat Ann. § 15A-244, 245 (2001) (See Criminal Code Commission Commentary); N.D. R.Crim. P. 41(c)(2); Or.Rev.Stat. § 133.545(5) (1999); S.D. Codified Laws § 23a-35-5 (2001); Utah Code Ann. § 77-23-204(2) (1998); Wash. Sup.Ct. Crim. R. 2.3(c); Wis. Stat. Ann. § 968.12(3) (1998).

¶ 12. Nonetheless, that is not the current state of the law in Mississippi. We note that in our sister states telephonic search warrants are primarily a creature of statute. Where they have been accepted in the ordinary course of police investigation, certain specific safeguards exist in these jurisdictions to insure authenticity and proper issuance upon the finding of probable cause. Typical of these safeguards are the requirements: (l) that the entire telephone conversation be recorded; (2) that the officer seeking the warrant is placed under oath by the impartial magistrate while the officer relates the facts supporting a finding of probable cause; and (3) that a paper copy is prepared and provided to the premises owner-either by means of facsimile machine or by requiring the magistrate to read aloud word-for-word the contents of the search warrant he or she has authorized for copying by the officer executing the warrant. See generally ABA Criminal Justice Section, Guidelines for the Issuance of Search Warrants 73-76 (1990). Telephonic search warrants are constitutionally infirm absent the existence of procedural safeguards and compliance with them. See United States v. Richardson, 943 F.2d 547, 549 (5th Cir.1991). Thus, we find that the search here was a warrantless search.

¶ 13. We decline to accept telephonic search warrants as valid. We hold that it is for the Legislature to create a statutory procedure for telephonic search warrants providing a constitutionally sound method to procure such a search warrant to properly issue using existing procedure. Here, we conclude that the telephonic search warrant is merely one action of the officer to be examined by this Court as to whether the officers acted reasonably under the circumstances then existing.

¶ 14. Nonetheless, while the search was a warrantless search, it is possible that a warrantless search can be found reasonable. The United States Supreme Court has found that the Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Mississippi has yet to determine whether such a “good faith” exception applies under its own law. In Leon, the Court held:

[W]here the officer’s conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct ■unless it is to make him less willing to do his duty.

Id. at 919-20, 104 S.Ct. 3405 (quoting Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (White, J., dissenting)).

¶ 15. The proper application of the good faith exception to the Fourth Amendment exclusionary rule was reiterated by the Fifth Circuit:

The [U.S. Supreme] Court has stated that the exclusionary rule should not be applied to suppress evidence if the evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant. However, this good faith exception does not apply if: (1) in issuing the warrant the magistrate is misled by information in the affidavit that the affiant knows is false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial role; (3) the warrant is based on an affidavit so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or, (4) the warrant is so facially deficient in failing to particularize the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid.

United States v. Russell, 960 F.2d 421, 423 (5th Cir.1992) (citations omitted) (applying good faith exception where warrant was procedurally defective); see United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (adopting good faith exception to Fourth Amendment exclusionary rule).

¶ 16. In the present case, the officers had obtained warrants via telephone from another judge on previous occasions, leading them to mistakenly believe that this procedure was valid. As we have stated above, it is not. However, since the officers in this case did not have the benefit of this opinion, we find that they acted in good faith in obtaining their procedurally defective warrant. Cf. State v. Spivey, 675 So.2d 1335, 1339 (Ala.Crim.App.1994) (applying good faith exception where judge telephonically expanded scope of warrant).

¶ 17. Because we find in reviewing the record that the police officers believed in good faith that their telephonic warrant was valid, we find that the good faith exception to the exclusionary rule is applicable in this case. None of the enumerated-above restrictions on its application is present on the facts before us.

¶ 18. We note that a majority of this Court obliquely avoided an opportunity to adopt this exception sixteen years ago. Stringer v. State, 491 So.2d 837, 840 (Miss.1986). In a concurring opinion joined by two other justices, Justice Robertson criticized the majority for not specifically addressing Leon, and argued that this Court was not obligated to follow Leon by either the federal Constitution or our state constitution. Id. at 841, 846-50 (Robertson, J., concurring). While it remains true that we are not obliged to adopt the good faith exception, we find that the legal and policy arguments favoring its adoption (as enunciated in Leon) are persuasive. Moreover, the majority’s refusal to rely on Leon in Stringer is not a precedential force against our adopting Leon today, since the Stringer Court had an alternative ground available by which to affirm the trial court’s admission of evidence. No such alternative is available in the present case. Further, by merely alluding to Leon without so much as naming it or its holding, the Stringer majority clearly chose not to close the door on Leon, as Justice Robertson’s concurrence urged it to do.

¶ 19. We find that the conclusions these officers made in the field with limited time and information to be reasonable under the circumstances. The officers were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure. We conclude that the officers reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably. Therefore, we find that Leon is applicable.

¶ 20. Today, we adopt the Leon good faith exception to warrantless searches and further find that it applies to the case at bar. The officer stated that a district attorney had informed them in police procedures training that such warrants were permissible under appropriate circumstances. Further, the officer stated that he had obtained such a warrant on one or two prior occasions. Beyond that, the oral statement was given under oath to a neutral magistrate. More importantly, the following morning, the officer filled out a written warrant and record of the telephone conversation and presented it to the authorizing judge. Thus, a follow up procedure utilizing some, though admittedly not all, of the generally recognized safeguards was used here. Instead of immediately entering the apartment and conducting a warrantless search, these officers “did their duty” by pursuing a more careful, prudent course. Thus, the officers had a reasonable good faith belief that they were executing a valid warrant, and the exclusionary rule should not operate in this case.

¶ 21. The Leon Court did enumerate four circumstances under which any officer should know better than to proceed on a warrant, no matter what the magistrate tells him:

Suppression therefore remains an appropriate remedy if [1] the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. The exception we recognize today will also not apply in cases where [2] the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on [3] a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Finally, depending on the circumstances of the particular case, [4] a warrant may be so facially deficient— i.e., in failing to particularize the place to be searched or the things to be seized— that the executing officers cannot reasonably presume it to be valid.

468 U.S. at 923, 104 S.Ct. 3405 (citations omitted & boldfaced numerals added). None of these exceptions goes to a purely formal issue like whether the warrant was issued on paper or via telephone, fax, or email. The exclusionary rule does not achieve its purpose when evidence is barred, and criminals go free, merely “because the form of the warrant was improper in some respect.” Id. at 915-17, 104 S.Ct. 3405. Only when the exclusionary rule can have some meaningful effect is it to be applied:

Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.

Id. at 918, 104 S.Ct. 3405.

¶ 22. In a companion case to Leon, the Court even more emphatically held that a technical deficiency should not trigger the exclusionary rule: “we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested.” Massachusetts v. Sheppard, 468 U.S. 981, 989-90, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Court went on to state:

An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. “[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.”

Id. at 990, 104 S.Ct. 3424 (quoting Illinois v. Gates, 462 U.S. 213, 263, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

¶ 23. Noting the deference allowed to the trial court, and the situation presented below, we find that the search was reasonable under the Leon good faith exception. The trial court, even in the absence of a state statute regarding telephonic search warrants, properly upheld the search as a reasonable warrantless search. Thus, the trial court is affirmed.

II. WHETHER THE TRIAL COURT ERRED IN DENYING A MOTION IN LIMINE REGARDING PRIOR BAD ACTS OF DEFENDANT AND IN DENYING THE DEFENSE A CAUTIONARY JURY INSTRUCTION IN THAT REGARD.

¶ 24. The admissibility of evidence related to prior acts is governed, partially, by Rule 404(b) of the Mississippi Rules of Evidence. The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged. Lancaster v. State, 472 So.2d 363, 367-68 (Miss.1985); Davis v. State, 377 So.2d 1076 (Miss.1979).

¶ 25. There are exceptions, however. Evidence of a prior offense is admissible if offered, not to show the accused’s criminal tendencies, but to prove identity, knowledge, intent, common criminal scheme or plan, or absence of mistake. Robinson v. State, 497 So.2d 440, 442 (Miss.1986). We have held that evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404(b) and is properly admissible if it withstands scrutiny under M.R.E. 403 and is accompanied by a proper limiting instruction. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999); Smith v. State, 656 So.2d 95, 100 (Miss.1995); Holland v. State, 656 So.2d 1192, 1196 (Miss.1995).

¶26. The ultimate resolution of this issue depends on the purpose for which the evidence was offered. White’s previous misdemeanor conviction for possession of marijuana and Stevens’s and Wigley’s accounts of previous sales of marijuana by White are not admissible “to show that he acted in conformity therewith.” M.R.E. 404(b). The State contends that the statements in the officer’s report were offered “to establish whether the defendant had the requisite intent to distribute or sell marijuana.” The suggestion is that if he intended to distribute before, he intended to distribute this time. The distinction is that while the prior act is not accepted as evidence of the entire crime, it is accepted as evidence of a constituent element of the crime. In prior opinions, we have followed the general trend and held that previous involvement with drugs can be admitted on the issue of intent to distribute. See Swington v. State, 742 So.2d at 1111; Smith v. State, 656 So.2d at 100; Jowers v. State, 593 So.2d 46, 47 (Miss.1992). Given the difficulty of proving subjective intent, we see no reason to categorically exclude evidence of prior sales. The trial court did not err in denying White’s motion in limine regarding the exclusion of statements discussing prior bad acts.

¶ 27. Even when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the “ultimate filter” of M.R.E. 403. Jenkins v. State, 507 So.2d 89, 93 (Miss.1987). Furthermore, the jury must be informed as to the limited purpose for which they are allowed to consider the other-crimes evidence. This cannot be accomplished if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” In Smith, the defendant argued that it was error for the trial court not to grant a cautionary instruction, sua sponte. We agreed and held that “wherever 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to M.R.E. 403 balancing analysis and a limiting instruction.” 656 So.2d at 100. See also Bounds v. State, 688 So.2d 1362, 1371-72 (Miss.1997).

¶ 28. In the case at bar, WTiite argues that the trial court erred in denying his request for an instruction as to the limited purposes for which the other-crimes evidence could be considered. While it is true that the trial court denied the defense’s proffered limiting instruction, he did not fail to give one. Court instruction C-6 clearly states:

The Court instructs the jury that, as to Count 2, evidence of alleged sales of marijuana, either on the date in question or on previous occasions, are offered in an effort to show motive, opportunity, intent, plan, and/or preparation regarding the defendant James WTiite. In other words, if you find beyond a reasonable doubt that the defendant possessed marijuana on the date alleged, then you may consider any evidence of alleged marijuana sales in determining whether the defendant possessed the marijuana with the intent to distribute or sell it, giving such evidence whatever weight, worth, and credibility, if any you think it deserves for that purpose.
Further, if you find the defendant guilty of the sale alleged in Count 1, you may consider that sale as possible evidence of guilty knowledge by the defendant of the nature and presence of any marijuana that he is charged with possessing in count 2.
You are not, however, under any circumstances, to consider any evidence of alleged prior marijuana sales in reaching a verdict as to Count 1, or for any other purpose not specifically authorized by this instruction.

(emphasis added).

¶ 29. The instruction requested by defense (D-9) states:

Ladies and gentlemen of the jury you have heard evidence concerning the defendant’s alleged involvement in drug related activities. The Court instructs you that the evidence was offered in an effort to show motive, opportunity, intent, and preparation, regarding the defendant James White. You may give this testimony such weight and credibility as you deem proper under the circumstances. However, you can not and must not consider this testimony in any way regarding whether or not James White is guilty or not guilty of the charge for which he is presently on trial.

The instruction given by the court was very similar to that submitted by the defense, and perfectly adequate under the dictates of this Court’s case law. Thus, there was no error in admitting the evidence of prior bad acts, and the jury was properly instructed as to the limits on their consideration of such acts. This allegation of error is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING LESSER-INCLUDED OFFENSE INSTRUCTIONS.

¶ 30. A defendant is entitled to have jury instructions given which present his theory of the case. Smith v. State, 802 So.2d 82, 88 (Miss.2001) (collecting authorities). This principle of law is not boundless, as 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. Id. Jury instructions should be given only when evidence in the case being tried supports them. Walker v. State, 740 So.2d 873, 888 (Miss.1999). This Court has found that a lesser-included offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesser-included offense. Pleasant v. State, 701 So.2d 799, 804 (Miss.1997). White was found guilty of possession of more than one ounce of marijuana with the intent to distribute. He alleges error in that the jury was not given an instruction on the lesser-included offense of simple possession. We find that there is no foundation in the evidence which would mandate such an instruction.

¶ 31. In order to prove possession, the State must prove that White had dominion and control over the marijuana found in his apartment. Jackson v. State, 689 So.2d 760, 767 (Miss.1997); Berry v. State, 652 So.2d 745, 748 (Miss.1995); Campbell v. State, 566 So.2d 475, 477 (Miss.1990). White admitted that he had purchased approximately two ounces of marijuana at his apartment on the night of his arrest and that he shared some with his friends. We find that this conclusively shows dominion and control. Thus, the possession portion of the offense is clearly met.

¶ 32. The more difficult question is whether based upon the evidence presented a reasonable jury could have found White guilty of possession, as opposed to possession with intent to distribute. White’s assertion at trial was that he did not intend to distribute the marijuana within his possession, rather he intended only to share a “smoke sack” with two of his friends. This is similar to the argument recently presented to and dismissed by this Court in Meek v. State, 806 So.2d 236 (Miss.2001). In Meek, the defendant argued that “his actions did not constitute a transfer because he did not intend to place the contraband in commerce nor intend to distribute the substance for economic gain.” Id. at 239. This Court has equated the general terms “transfer” and “deliver.” Evans v. State, 460 So.2d 824, 828 (Miss.1984). In Meek, we noted that distributing “includes transactions which are sales as well as transactions which may not be considered sales.” Meek, 806 So.2d at 239-40; Rogers v. State, 599 So.2d 930, 934 (Miss.1992). The intent of the delivery and transfer of narcotics statute is “to thwart the exchange or transfer of the substance whether accompanied by consideration or not.” Id.; Wilkins v. State, 273 So.2d 177 (Miss.1973).

¶ 33. This Court has held that it is not necessary for the transferor to make a profit or that there be consideration for the transaction to constitute a transfer or distribution under the statute. Rogers v. State, 599 So.2d 930 (Miss.1992); Turner v. State, 573 So.2d 1340 (Miss.1990); Minor v. State, 482 So.2d 1107 (Miss.1986); Boone v. State, 291 So.2d 182, 184 (Miss.1974). Further, as we stated in Meek:

A transfer is a change of possession from one person to another. See Commonwealth v. McCue, 338 Pa.Super. 117, 487 A.2d 880, 883 (1985). Also, a transfer is any act by which the holder of an object delivers it to another with the intent of passing whatever rights he has in the latter. See United States v. Nutter, 13 M.J. 803, 803-04 (A.F.C.M.R. 1981)... .We find that the only intent necessary is an intent to relinquish possession and control. The intent of the recipient is immaterial. All that is required is that Meek, the transferor, have knowledge of the character and presence of the controlled substance and that he intentionally transfer it to another with the intent to part with possession and control.

Meek v. State, 806 So.2d at 240. Here, the evidence put on by White on his own behalf clearly meets the definition of possession with intent to distribute. We find that White was not entitled to a jury instruction on lesser-ineluded offenses; and therefore, the trial judge did not err in denying his request. This issue is similarly without merit.

CONCLUSION

¶ 34. This Court cautions that today’s finding of a good faith Leon exception in this particular case and finding that the officers acted reasonably is no recognition of the validity of telephonic search warrants. To the contrary, we reject such a notion. The subject of telephonic search warrants is for the Legislature to address. We are sending a clear message that such warrants are not valid, such that from this day on, no officer or judge will be able to claim ignorance of the clearly-stated law in this respect. In this particular instance before us, however, where the officers and the judge did not have the benefit of this opinion’s guidance, we affirm the trial court’s determination that the officers demonstrated their good faith belief that they were adhering to the letter of the Fourth Amendment.

¶ 35. In conclusion, we admonish all law enforcement officers and prosecutors to understand that our adoption today of the Leon “good faith” exception should not be interpreted, in any way, as an opportunity for them to be less diligent or less thorough in following the mandates of the United States Constitution, the Mississippi Constitution, or case law interpretations thereof, regarding search and seizure. Here, the officers’ use of a telephonic search warrant merely aids and reenforces the reasonableness of their actions in this case.

¶ 36. In adopting the Leon, good faith exception we note what the Supreme Court stated:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause... .The affidavit related the results of an extensive investigation and, as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.

468 U.S. at 926, 104 S.Ct. 3405.

¶ 37. We find no error in admitting evidence of prior bad acts, nor do we find error in the denial of a lesser-included offense instruction. We, therefore, affirm the trial court’s judgment.

¶ 38. CONVICTION OF POSSESSION OF MARIJUANA IN AN AMOUNT OF MORE THAN ONE (1) OUNCE WITH INTENT TO DISTRIBUTE AND SENTENCE OF NINE (9) YEARS, SIX (6) YEARS SUPERVISED PROBATION WITH NINE (9) YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL RECEIVE CREDIT FOR TIME SERVED AND SHALL REIMBURSE HINDS COUNTY FOR ATTORNEY FEES AT THE RATE OF $35 PER MONTH TO BEGIN 60 DAYS AFTER RELEASE.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ„ CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., NOT PARTICIPATING.


author: KING, P.J.,

text:
    Howard MOONEYHAM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00376-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2002.
    Rehearing Denied Oct. 29, 2002.
    Certiorari Denied Feb. 27, 2003.

      J. Edward Rainer, Brandon, attorney for appellant.
    Office of the Attorney General by Charles W. Maris Jr., Jackson, attorney for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   KING, P.J.,

for the Court:

¶ 1. Howard Mooneyham was found guilty in the Circuit Court of Rankin County, Mississippi of the possession of more than thirty grams of methamphetamine and the sale of methamphetamine. He was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections on the possession charge and a term of fifteen years in the custody of the Mississippi Department of Corrections on the sale of methamphetamine. The sentences imposed were to run consecutively. Aggrieved by his conviction, Mooneyham has appealed and raised the following issues which we quote verbatim:

I. The trial court erred in failing to grant a continuance and admitting the testimony of Officer Roy Dampier and Officer Edward Benton as their status as witnesses was not disclosed to defendant until less than three days before trial.
II. The trial court erred in receiving into evidence the photographs marked as State’s exhibits S-l, S-2 and S-4.
III. The trial court erred in failing to grant defendant’s motion to suppress all evidence gleaned from the execution of the search warrant as the warrant must fail for want of probable cause based on the insufficiency of the underlying facts and circumstances on which the warrant was based.
IV. The trial court erred in failing to grant a mistrial based on the prejudicial comments made by Officer Edward Benton in the presence of the jury.
V. The defendant’s Sixth Amendment right to confront a witness against him was violated when defendant was not allowed to confront the expert that did the actual analysis of the substance found in his home.
VI. The trial court erred in failing to give the accomplice cautionary instructions marked D-10 and D-ll.
VTI. The trial court erred in allowing the prosecutor to comment during closing argument about any fictional “business” that was being operated at defendant’s home and the presence of a park across the street from defendant’s home.
VIII. The length of the sentence in this case ensures that defendant will spend the rest of his natural life in prison and is therefore a life sentence which amounts to cruel and unusual punishment.

FACTS

¶ 2. On May 12, 2000, Officer Edward Benton of the Pearl Police Department and a special contract agent with the Mississippi Bureau of Narcotics assisted Officer Roy Dampier (Pearl Police Department) in an “undercover buy” from Marcie Bowling. Bowling was subsequently arrested for selling methamphetamine to the officers. After which, Bowling agreed to make a “controlled buy” of more methamphetamine from her supplier, Howard Mooneyham.

¶ 3. In preparation for the “controlled buy,” Bowling was taken to the Florence Police Department and searched to make sure that she did not have any narcotics or money on her at that time. Officer Benton then put a body wire on Bowling and gave her five one-hundred dollar bills (money from state funds) to purchase the narcotics. Officer Benton rode with Bowling to a pay phone where she paged Mooneyham. He called back and the transaction was arranged. Officer Benton lay in the car as Bowling approached Mooneyham’s residence. Other officers were watching Moo-neyham’s house. Bowling exited the car and approached Mooneyham who was sitting on his front porch swing. Bowling laid the “marked money” beside her. Mooneyham picked up the money and gave her a bag, which contained a substance later determined to be methamphetamine. Bowling returned to the car and gave the bag to Officer Benton, who transported it to the crime lab the following day.

¶ 4. After Bowling purchased the substance, the assisting officers placed Moo-neyham under arrest for the sale of a controlled substance. Mooneyham was advised of his Miranda rights and searched. In Mooneyham’s pocket, Officer Benton found the “marked money” which was later confirmed to be the state funds given to Bowling for the buy (the money was compared with copies made prior to the buy).

5. After Mooneyham refused to allow the officers to search his house, Officers Edward Benton and Timothy Culpepper obtained a search warrant to search Moo-neyham’s house. The officers discovered additional amounts of a white substance thought to be methamphetamine in the attic of Mooneyham’s house.

¶ 6. Prior to trial on February 8, 2001, there was a suppression hearing where Mooneyham’s attorney requested that any written or oral statements given by Moo-neyham and any physical evidence be excluded as being obtained in violation of his constitutional rights. After hearing the evidence presented, the trial court denied this motion. Mooneyham was found guilty of the possession of more than thirty grams of methamphetamine and guilty of the sale of methamphetamine. He was sentenced to serve consecutive terms of ten and fifteen years in the custody of the Mississippi Department of Corrections.

ISSUES AND ANALYSIS

STANDARD OF REVIEW

¶ 7. The applicable standard of review regarding the admissibility of evidence is as follows:

Admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.

Hayes v. State, 803 So.2d 473 (¶ 4) (Miss.Ct.App.2001).

I.

Did the trial court err in failing to grant a continuance and admitting the testimony of Officer Roy Dampier and Officer Edward Benton as their status as witnesses was not disclosed to defendant until less than three days before trial?

¶ 8. Mooneyham contends that the trial court erred in denying his motion for a continuance based upon the State’s failure to submit its list of witnesses until three days prior to trial. Mooneyham’s attorney claims he did not have enough time to interview the State’s witnesses. Mooneyham asserts that the State violated Uniform Circuit and County Court Rule 9.04(1) by failing to provide the list in a timely manner.

¶ 9. The decision to grant or deny a continuance is left to the sound discretion of the trial court, and this Court shall not reverse for the denial of a continuance unless it appears that manifest injustice resulted from the denial. Buckley v. State, 772 So.2d 1059(¶ 2) (Miss.2000).

¶ 10. A review of the transcript reveals that the State had provided offense reports to Mooneyham’s attorney but does not specifically indicate that a witness list was provided at the same time as the reports. The trial judge stated:

THE COURT: Today is February 8th. It appears to the court that, although Mr. Rainer didn’t have the benefit of the discovery back in June, it appears to the court that the defendant, I guess, fired his attorney on the day of the plea offer, which I don’t think should be held against the State. It appears to me the State produced discovery in a timely manner. It appears the State did try to work with Mr. Rainer as far back as January 24th in trying to ascertain additional discovery for him. So I’m going to deny that motion. I don’t see any prejudice in the case against the defendant. Mr. Sumrall, his initial attorney, had the discovery since June.
THE COURT: ... I think there is just as much a burden on the defense attorneys to try to come and get the discovery as it is for the prosecutors to give the discovery. So I’m going to overrule your motion ...

Mooneyham also claims that the testimony of Officers Roy Dampier and Edward Benton should not have been admitted because their status as witnesses was not disclosed until three days before trial.

¶ 11. The State maintains that because it provided the offense reports made by the officers, that this was sufficient notice of the substance of the officers’ testimony. The trial judge determined that the information was provided in accordance with the discovery rule, but also allowed Moo-neyham’s attorney time to interview the officers. Although Mooneyham’s attorney interviewed the officers, he stated that he wanted to make the court aware that he was not agreeing that this interview would cure any error that he may assign later. In response, the court stated the following:

THE COURT: I want the record to be clear that Mr. Rainer objects to going forward in this matter because of discovery surprise concerning the statement by Mr. Mooneyham that it was, quote, his money, when he was arrested. I think under Box, I have made sufficient provisions for Mr. Rainer to talk to the two witnesses who would be called to testify to the short statement. Therefore, I am not going to continue the trial....

While the State may have violated the discovery rules, the trial court took corrective action and determined that the information provided by the officers was not of such grievous harm that it would prejudice Mooneyham’s defense. Williams v. State, 784 So.2d 230 (¶7) (Miss.Ct.App.2000). Having reviewed the testimony, we agree with the trial court on this matter.

II.

Did the trial court err in receiving into evidence the photographs marked as State’s exhibits S-l, S-2 and S-4?

¶ 12. Mooneyham contends that the trial court erred by allowing photographs marked, as State’s exhibits S-l, S-2 and S-4, in evidence. Mooneyham’s attorney objected to the photographs and stated that the photographs were not “made known” to him until approximately fifteen minutes before trial. The trial judge allowed Mooneyham’s attorney time to review the photos. S-l is a picture of the open attic. S-2 is a picture of the front of Mooneyham’s residence. S-4 is a picture of insulation in the attic with a bag of white substance located inside. These pictures were marked for identification purposes and S-l and S-2 were admitted in evidence.

¶ 18. While Mooneyham’s attorney maintains that he was given sufficient time to look at the photographs, he was not given time to prepare an adequate defense to the photographs. According to Moo-neyham, a continuance was still in order due to the undisclosed evidence. Mooney-ham has not suggested to this Court any defense which was hampered by the lack of a continuance. Walker v. State, 671 So.2d 581, 592 (Miss.1995).

¶ 14. Mooneyham has not shown injury by allowing these photographs to be entered in evidence. Therefore, we find no error regarding this issue which would warrant a reversal.

III.

Did the trial court err in failing to grant defendant’s motion to suppress all evidence gleaned from the execution of the search warrant as the warrant must fail for want of probable cause based on the insufficiency of the underlying facts and circumstances on which the warrant was based?

¶ 15. Mooneyham contends that the trial court erred in denying his motion to suppress all evidence obtained through the search warrant. He maintains that the warrant was not valid due to lack of probable cause based on the insufficiency of the underlying facts and circumstances portion of the warrant.

¶ 16. In determining whether evidence should be suppressed, a trial court’s findings of fact are not disturbed on appeal absent a finding that the “trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.” Taylor v. State, 733 So.2d 251 (¶ 18) (Miss.1999).

¶ 17. The trial judge determined that: The man of average caution looked at the total circumstances surrounding this particular warrant issuance, that it would find that probable cause existed. If you look at the underlying facts and circumstances — I indicated earlier, I have been involved in search warrant cases before the United States Supreme Court. I certainly would have written more in the underlying facts and circumstances. But I’m not out there in the field. These police officers are held to the same standard as the lawyers and legal scholars who operate within the system. If you look at the underlying facts and circumstances, the agent tells the judge what’s going on. He’s right up front with the judge. He tells the judge that at 104 Briar Hill Road in Florence, they purchased three grams of alleged crystal methamphetamine. And this is unusual. They tell the judge who they purchased it from, Marcie Bowling. She’s going to be the Cl in the next case. They arrested Marcie Bowling. And while talking to her, she cooperated with officers and allowed audio equipment to be placed on her person. And she went to a pay phone at the Amoco and called Howard Mooneyham, who said he would sell her two eight balls of crystal meth. After the phone call was made, Mooneyham was observed. Then the proof in the case reveals that surveillance agents observed Mooneyham going out to an out building next to the house. Marcie Bowling left Amoco, went to 120 Pearl Avenue, Richland, Mississippi, and purchased approximately six grams of alleged methamphetamine from the owner of the residence, Howard Mooneyham, for $500. Once the transaction took place, officers secured the scene, asked for consent to search. It was denied, so then the officers applied for the warrant. Any person of average caution would think, or I think, have to assume that narcotics were being kept at that premises. So I find that this warrant was issued based upon probable cause....

¶ 18. The trial court determined that a consideration of the underlying facts and circumstances, showed there was probable cause. This finding is not inconsistent with the evidence. Roberson v. State, 595 So.2d 1310, 1317 (Miss.1992).

IY.

Did the trial court err in failing to grant a mistrial based on the prejudicial comments made by Officer Edward Benton in the presence of the jury?

¶ 19. Mooneyham contends that the trial court erred by failing to grant a mistrial based on prejudicial comments made by Officer Edward Benton during trial. Mooneyham claims that because Officer Benton was not testifying as, nor was qualified to be an expert, his testimony regarding the substance found at Mooney-ham’s residence was impermissible under M.R.E. 701 and URCCC 3.12. Mooney-ham maintains that Officer Benton made several references to the substance obtained before the substance was admitted in evidence. Officer Benton referred to the substance found as “crystal meth,” “narcotics” or a “controlled substance.”

¶ 20. The testimony at trial reveals the following:

MR. RAINER: Your Honor, once again, I’m sorry, but he keeps to [sic] referring to finding a controlled substance that’s not in evidence at this point. It’s prejudicial to the defendant. And I request the court to allow me to make a motion regarding this.
THE COURT: All right, make your objection Mr. Rainer.
MR. RAINER: Your Honor, I made my objection. I just move the Court for a mistrial. It’s highly prejudicial to my client for the officer to keep referring to the substance. He can say, I received a substance, or I found a substance.
THE COURT: I don’t see any prejudice. But Officer Benton, if you would, refer to anything else you refer to as a substance that was seized. Because generally that’s the way the testimony goes. I seized a substance. Some of them say it appeared to me to be narcotics, but most people say, I seized a substance and transported it to the Crime Lab for testing. Police officers can’t testify to things being a controlled substance, only the criminalist from the Crime Lab can. So I’m not going to grant a mistrial, of course, unless the State doesn’t have a Crime Lab analyst, and then I would certainly grant a mistrial. I’m going to overrule the objection.
THE COURT: You may continue. Let me instruct the jury. Ladies and gentlemen, the detective in his testimony has referred to a substance that he sees as being a controlled substance. Police officers can’t testify to things — they can testify to things that appear to them to be a controlled substance. But only a scientist can testify that a certain substance is, in fact, a controlled drug. So I’d ask you to disregard Detective Benton’s testimony regarding any of the substances that he found as being controlled because he can’t testify to that. Can each of you on your oath tell me that you will disregard his testimony? I have an affirmative nod from each of the jurors. You may continue.

¶ 21. The applicable standard of review of a trial court’s denial of a mistrial is abuse of discretion. Pearson v. State, 790 So.2d 879(116) (Miss.Ct.App.2001). Whether to grant or deny a mistrial is within the sound discretion of the trial judge. Id. Because the trial judge took appropriate corrective action, we find no abuse of discretion on this issue.

V.

Whether the defendant’s Sixth Amendment right to confront a witness against him was violated when defendant was not allowed to confront the expert that did the actual analysis of the substance found in his home.

¶ 22. Mooneyham contends that his Sixth Amendment right to confront the person who actually performed the crime lab tests was violated. He asserts that Monica Artis, the quality assurance manager for the Mississippi Crime Lab, was allowed to testify regarding the chain of custody and the results of the lab tests that she neither conducted nor supervised.

¶ 23. In this matter, Ms. Artis was recognized by the court as an expert forensic scientist in substance identification. Ms. Artis stated that she did not conduct nor supervise the performance of the lab tests, but that she is the supervisor of the person who conducted the tests.

¶ 24. The transcript reveals the following:

MR. RAINER: If it. please the court, your Honor, this witness has not testified that she received the evidence from Officer Benton when he delivered it to her. I don’t know — and she hasn’t testified who received it. She hasn’t testified that she tested the substances. Therefore, there’s [sic] two problems. There’s a chain of custody problem, and there’s the requirement that the person, the scientist that does the test, testify to having done the test to insure the integrity of the test and to insure that there hasn’t been any tampering with it. The witness testified that the analyst that receives it should be the first person to open it. She obviously was not the analyst that received it. She wasn’t the first person that opened it. So she doesn’t have any basis upon which to say that the evidence wasn’t tampered with. There is a question of the integrity of the evidence. And there is a question of whether or not it could have been tampered with. This witness can’t say and hasn’t said that it hasn’t been tampered with.

¶ 25. The court questioned Ms. Artis regarding her role and involvement in this case as follows:

Q. Did you oversee the results or did you oversee the test?
A. What my role in this situation is, is after the analyst has conducted their analysis, all of the documentation that is generated from the analysis is given to me. I have to verify the results. And it is my responsibility to look at all the data and see if I would come to the same conclusion as the person that analyzed it.
Q. You did that in this particular case? A. Right.

¶ 26. After this argument was presented to the court, the State cited to Hemphill v. State, 566 So.2d 207, 208 (Miss.1990), which says, “[T]he test for the continuous possession [i.e., ‘chain of custody1] of evidence is whether or not there is any indication or reasonable inference of probable tampering with the evidence or substitution of the evidence.” “In such matters, the presumption of regularity supports the official acts of public officers,” and the burden to produce evidence of a broken chain of custody (i.e., tampering) is on the defendant. Id.

¶ 27. The State also cited to Gray v. State, 728 So.2d 36 (¶¶ 83-85) (Miss.1998), which allowed DNA supervisors who qualified as experts to testify regarding test results conducted by others in the lab. The court in the present matter indicated that the chain of custody appeared to be complete. The court determined the following:

THE COURT: Okay, DNA area has cleared this up in that supervisory personnel from the FBI lab and the Relia Gene lab come and testify concerning the results of technicians who ran the tests. The supervisors actually never touched the substance. They don’t run the tests. People in the lab do. What you do is, in my opinion, so far, the chain of custody is intact in this matter because the agents have tested — just because the agents — the agents have testified under oath that the substance they saw on this witness stand were the same or similar condition to that that was seized during the drug raid itself, to me, completes the chain of custody. That there’s no evidence of tampering, then I guess you could stand up in front of the jury and allege that the Crime Lab people have tampered with this evidence. But I don’t see how you can prove it. It’s been settled to me for a while that you don’t have to go through all of these procedures regarding evidence checked into the Crime Lab. The Supreme Court has talked about this several times, and they’ve said the procedures of the Crime Lab have been accepted. Evidence is checked in by evidence check-in people, for the lack of a better term. It’s placed in a secured vault. And the technicians come and get an exhibit, or somebody working under her would come get an exhibit.

While M.R.E. 803(6) requires that the custodian of records of the Mississippi Crime Lab may introduce lab reports, except where defendant objects on the ground that his Sixth Amendment right to confront the person who prepared the test is being violated, Ellis v. State, 661 So.2d 177, 182 (Miss.1995), we find that the trial court did not violate Mooneyham’s Sixth Amendment right to confront the expert who performed the actual analysis on the substance based on the testimony provided above. Ms. Artis testified that she had to verify the results of the analysis. Therefore, she was capable of testifying to the test results and the chain of custody. Gray, 728 So.2d 36 at (¶ 85).

VI.

Did the trial court err in failing to give the accomplice cautionary instructions marked D-10 and D-ll?

¶ 28. Mooneyham contends that the trial court should have granted the cautionary instructions marked as D-10 and D-ll. Mooneyham maintains that Bowling was a co-conspirator and that the instructions should have been given pursuant to Derden v. State, 522 So.2d 752, 754 (Miss.1988), which states that “as a general rule a trial judge should not hesitate to grant the cautionary instruction when the State is relying upon the testimony of co-conspirators.”

¶ 29. An accomplice for these purposes is a person who is implicated in the commission of the crime. Burke v. State, 576 So.2d 1289, 1242 (Miss.1991). In this instance, there has been no evidence which establishes that Bowling was a co-conspirator, co-defendant, or an accomplice. Bowling was actually working with law enforcement officials to apprehend a criminal. Therefore, we find that the trial court did not abuse its discretion and find this issue to be without merit.

VII.

Did the trial court err in allowing the prosecutor to comment during closing argument about any fictional “business” that was being operated at defendant’s home and the presence of a park across the street from defendant’s home?

¶ 30. Mooneyham contends that the trial court erred by allowing the prosecutor to claim during closing argument that Mooneyham operated a “business” at his home. He maintains that there was no evidence presented which established that he was operating a business from his home. The prosecutor made the following comment:

We now know that Howard Mooneyham, the defendant, was operating a business over on Pearl Avenue across from West-side Park in Richland.

Mooneyham’s attorney objected to this statement because there was no evidence presented at trial which showed that Moo-neyham conducted any business at his home. The trial court noted that both parties were to keep their arguments within the record as clearly as possible, and also stated that “there’s a wide leeway in final argument for both sides.”

¶ 31. Mooneyham contends that the comment was prejudicial in that it would suggest to the jury that he had been engaged in a long line of continuous criminal activity. It is well settled that counsel is allowed considerable latitude in the argument of cases, and is limited not only to the facts presented in evidence, but also to deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts. Carroll v. State, 755 So.2d 483(¶ 7) (Miss.Ct.App.1999). Further, “where the argument does not result in ‘unjust prejudice against the accused as to result in a decision influenced by the prejudice so created,’ we will find it harmless.” Id.

¶ 32. In the second part of this issue regarding the mention of the park across the street from his home, Mooneyham did not raise an objection on this ground at trial. Where it is clear from the record that no objection was made to such testimony, the trial court cannot be put in error for not excluding such testimony. Hutchinson v. State, 391 So.2d 637, 639 (Miss.1980).

yin.

Whether the length of the sentence in this case ensures that defendant will spend the rest of his natural life in prison and is therefore a life sentence which amounts to cruel and unusual punishment.

¶ 33. Mooneyham contends that his sentence amounts to cruel and unusual punishment. He was sentenced to serve a term of ten years and fifteen years, the sentences to run consecutively. Mooney-ham asserts that at the time of sentencing he was fifty-seven years of age and would not be released until he is at least eighty-two years old. Based on an actuarial table presented by Mooneyham’s attorney, the trial court noted that the full range of life expectancy of a white male in the United States at the present time is from seventy-two to seventy-five years old. Mooneyham suggests that his sentences amount to a life sentence which is not authorized by statute under the crime charged.

¶ 34. Mooneyham cites no authority as a basis for this contention. For sentence determination, “the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term [of years] reasonably expected to be less than life.” Handford v. State, 736 So.2d 1069(¶ 8) (Miss.Ct.App.1999). “The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.” Id. However, where the defendant is convicted of multiple offenses, this should not be taken to suggest that (1) he may not be subjected to full and appropriate punishment or (2) that his sentences may not be run consecutively. Robert v. State, 756 So.2d 806(¶ 14) (Miss.Ct.App.1999).

¶ 35. Mooneyham was not given the maximum penalty allowable for the crimes charged nor was he given a life sentence. A trial judge’s decision on sentencing will generally not be disturbed on appeal as long as the sentence is within the range allowed by statute. Luckett v. State, 797 So.2d 339 (¶ 30) (Miss.Ct.App.2001). “Sentencing is purely a matter of trial court discretion so long as the sentence imposed lies within the statutory limits.” Id. Therefore, we find no merit to this issue.

¶ 36. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I — POSSESSION OF MORE THAN THIRTY GRAMS OF METHAMPHETAMINE AND SENTENCE OF TEN YEARS AND COUNT II — SALE OF METHAMPHETAMINE AND A SENTENCE OF FIFTEEN YEARS TO BE SERVED CONSECUTIVELY TO SENTENCE IN COUNT I ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ„ CONCUR.

      .Uniform Circuit and County Court Rule 9.04(1) provides: I. If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.
      If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
      1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
      2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
      3.The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.
      The court shall follow the same procedure for violation of discovery by the defense.
      Discovery material shall not be filed with the clerk unless authorized by the court.
      Willful violation by an attorney of an applicable discovery rule or an order issued pursuant thereto may subject the attorney to appropriate sanctions by the court.

      . Mississippi Rules of Evidence 701 provides Opinion Testimony by Lay Witnesses: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.

      . Uniform Rules of Circuit and County Court 3.12 states: Mistrials: Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party's attorneys, or someone acting at the behest of the party or the party's attorney, resulting in substantial and irreparable prejudice to the movant’s case.
      Upon motion of a party or its own motion, the court may declare a mistrial if:
      1. The trial cannot proceed in conformity with law;
      2. It appears there is no reasonable probability of the juiy’s agreement upon a verdict.

      . Instruction D-10: The Court instructs you that Marcie Bowling has admitted to participation in the crime in which she claims Howard Mooneyham was also a participant. For this reason, you are instructed to regard her testimony with great suspicion and distrust, and to consider it with caution.

      . Instruction D-ll: The Court charges you that Marcie Bowling has admitted to the participation in the crimes in which she claims Howard Mooneyham was also a participant. If you believe that such testimony is reasonable and is neither improbable, self-contradictory or substantially impeached, then it is your duty to take such testimony into consideration in determining your verdict, and give it such weight, faith and credit as you believe it deserves; however, for the reason that Marcie Bowling has admitted to her participation in the crimes, you are instructed to regard all of her testimony with great suspicion and distrust, and consider it with caution.