John Gale v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-KA-00735-COA

JOHN GALE A/K/A NOOKIE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/04/2016
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 09/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

FAIR, J., FOR THE COURT:

¶1. John Gale was convicted of the sale of less than two grams of methamphetamine to

a confidential informant and sentenced to eight years’ imprisonment. The jury acquitted Gale

of two other drug sale counts relating to a morphine pill and a Xanax (alprazolam) pill he was

alleged to have sold at the same time. On appeal, Gale contends that the jury should have

received a cautionary instruction on the testimony of confidential informants, and that the

verdict was against the overwhelming weight of the evidence. We find no error and affirm.

DISCUSSION
1. Weight of the Evidence

¶2. Though presented as Gale’s second issue, we will address this contention first to avoid

repetition. Gale contends that his conviction was against the overwhelming weight of the

evidence.

¶3. A new trial based on the weight of the evidence should be granted “only in

exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v.

State, 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citation omitted). “[T]he evidence must be

viewed in the light most favorable to the verdict[.]” Jenkins v. State, 131 So. 3d 544, 551

(¶23) (Miss. 2013). And because the motion for a new trial is entrusted to the circuit judge,

who had a firsthand view of the trial, “reversal is warranted only if the trial court abused its

discretion in denying [the] motion for a new trial.” Waits v. State, 119 So. 3d 1024, 1028

(¶13) (Miss. 2013).

¶4. Here, the State’s evidence consisted largely of the testimony of a confidential

informant, but it was also corroborated by the informant’s wife and by video and audio

recordings made by a hidden camera, which was disguised as a button on the informant’s

shirt. Prior to the buy, investigators from the sheriff’s department met the informant and his

wife. The informant and his wife were searched (the informant more thoroughly than the

wife, as no female officer was available), as well as their vehicle, and then the investigators

gave the informant a certain amount of cash,1 equipped him with the recording equipment,

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It was variously testified to be $120 or $140.

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and sent him off to purchase drugs from Gale.

¶5. The informant went to a gas station where he used its phone to call Gale and arrange

the meeting. The video recording shows the informant meeting Gale on a deserted road and

getting into Gale’s vehicle. The audio is difficult to discern, but the two appear to discuss

a price, and Gale places a small baggie on the seat of his vehicle. The informant places

money on the seat next to the baggie and then picks up the baggie. Gale then quickly picks

up the money. The baggie’s appearance in the video is consistent with the one entered into

evidence, which was determined to have held a little less than one gram of

methamphetamine.

¶6. The informant was thoroughly cross-examined, and he admitted that he was paid $100

for his role in the drug buy. He also admitted he was facing felony charges at the time of the

trial, though he had not been at the time of the buy. He denied that he had been offered or

expected any leniency on those charges as a result of his testimony.

¶7. Gale bases his argument as to the weight of evidence on the video, particularly the

informant’s detour to the convenience store. The informant spoke for some time to the clerk,

who he testified he knew. During that time, an older woman appears in the store, and she

places a handbag on the counter near the informant, which she opens. The woman says

something that is largely unintelligible, though she seemed to say that she has “chocolates.”

Gale contends on appeal (without citation to the record) that “chocolates” is street slang for

amphetamines. According to Gale, the video established that the informant got the

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amphetamine from the woman in the store. He contends that the subsequent transaction

(with Gale) was actually just a sale of the pills (for which Gale was acquitted).

¶8. We see no merit to this argument. What exactly occurred during the encounter with

the woman in the convenience store is unclear from the video. The informant testified

without equivocation that he purchased the amphetamine from Gale. The video appears to

corroborate this. The credibility of the informant and the question of reasonable doubt

stemming from the detour to the convenience store and the less-than-perfect searches prior

to the sale were argued to the jury and apparently rejected, at least as to the

methamphetamine. Our supreme court has “repeatedly held that in a criminal prosecution

the jury may accept the testimony of some witnesses and reject that of others, and that they

may accept in part and reject in part the evidence on behalf of the [S]tate or on behalf of the

accused. In other words, the credibility of witnesses is not for the reviewing court.”

Mangum v. State, 762 So. 2d 337, 346 (¶35) (Miss. 2000) (citation omitted). The jury is

likewise “entrusted to interpret evidence that is capable of more than one reasonable

interpretation.” Winn v. State, 127 So. 3d 289, 292 (¶11) (Miss. Ct. App. 2013) (citation

omitted).

¶9. After reviewing the record, we cannot say that Gale’s conviction is against the

overwhelming weight of the evidence.

2. Jury Instruction

¶10. Gale offered instruction D-7, which would have stated:

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The Court instructs the jury that the law looks with suspicion and distrust on
the testimony of an informant, and requires the jury to weigh that testimony
with great care and suspicion. You should weigh the testimony from an
informant, and passing on what weight, if any, you should give this testimony,
you should weigh it with great care and caution, and look upon it with distrust
and suspicion.

¶11. In his arguments on appeal, Gale essentially concedes that this issue is controlled by

Webber v. State, 108 So. 3d 930, 931-32 (¶7) (Miss. 2013), where the Mississippi Supreme

Court held that such an instruction was properly refused if the details of the informant’s pay

arrangement are disclosed to the jury and the informant is subject to cross-examination.

Webber has been reaffirmed by the supreme court in Corrothers v. State, 148 So. 3d 278,

302-03 (¶55) (Miss. 2014), and repeatedly relied upon by this Court. See Thomas v. State,

195 So. 3d 843, 849 (¶16) (Miss. Ct. App. 2016); Beal v. State, 134 So. 3d 383, 386-87

(¶¶14-15) (Miss. Ct. App. 2014); Miller v. State, 144 So. 3d 199, 203 (¶17) (Miss. Ct. App.

2014); Wallace v. State, 139 So. 3d 75, 77-78 (¶8) (Miss. Ct. App. 2013).

¶12. Gale cannot distinguish his case from Webber; his argument on appeal is essentially

that Webber was erroneously decided. But this Court, sitting as an intermediate appellate

court, lacks the authority to overrule decisions of the Mississippi Supreme Court. Henry v.

State, 40 So. 3d 621, 629 (¶34) (Miss. Ct. App. 2010).

¶13. The details of the informant’s pay arrangement and the surrounding circumstances

were disclosed to the jury. The informant was thoroughly cross-examined, and Gale was

permitted to argue that the jury should not find his testimony credible. The jury was properly

instructed that it was the arbiter of the credibility of witnesses. Thus, the issue of the

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informant’s credibility was squarely put to the jury, and that was adequate under Mississippi

law. Webber, 108 So. 3d at 931-32 (¶7).

¶14. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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