IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-01343-SCT

MATHEW JONES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/16/1997

TRIAL JUDGE: HON. MIKE SMITH

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: CHARLES E. MILLER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY: DUNN O. LAMPTON

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 08/12/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 09/02/1999

BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.

PRATHER, CHIEF JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Mathew Jones was tried and convicted in the Lincoln County Circuit Court for Count I, delivery of

cocaine and, Count II, possession of cocaine. He was subsequently sentenced as an habitual criminal to

sixty years in prison on Count I and six years in prison on Count II. Jones appeals, and raises the following

issues for consideration by this Court:

A. Whether the evidence is insufficient to support the conviction pursuant to the indictment

and relevant law, such that the lower court erred in not granting a directed verdict pursuant

to the Mississippi Rules of Procedure?

B. Whether the trial court committed reversible error by permitting the prosecutor to elicit

testimony of a separate and distinct crime, depriving Mathew Jones of due process under

the federal and state Constitutions and denying Jones a fundamentally fair trial?

C. Whether the confidential informant, Andrea Jones, was a reliable witness and that in
violation of appellant's basic rights said informant's testimony was admitted?

D. Whether the lower court judge erred in its failure to recuse and remove itself from this

case based on bias?

E. Whether the lower court judge erred in admitting evidence from an illegal search warrant

and wrongfully admitted the audiotape and illegal substance into evidence?

F. Whether the lower court acted improperly by sentencing appellant to a mandatory sixty-six

years in the custody of the Mississippi Department of Corrections?

¶2. This Court finds that the issues raised by Jones are without merit. Accordingly, the

judgment of the trial court is affirmed.

STATEMENT OF THE FACTS

¶3. The informant in this case, Andrea Jones (hereinafter "the informant"), testified that

he and Mathew Jones (hereinafter "Jones") cut and wrapped crack cocaine at Jones'

home on June 8, 1997. Jones gave the informant a large quantity of cocaine, with

instructions to sell it. The informant, against whom other charges were pending(1),

contacted his attorney. The attorney contacted the authorities. As a result, at 10:00

p.m., on June 10, 1997, the informant met with Officers Crieg Oster (a veteran Unit

Commander for the Southwest Narcotics Enforcement Unit and member of the

Brookhaven Police Department) and Gary Vanderslice (a member of the Lincoln

County Sheriff's Department and the Southwest Narcotics Enforcement Unit).

¶4. At that meeting, the informant gave Oster and Vanderslice approximately 14.39

grams of crack cocaine, comprised of forty-five rocks that had been individually

sealed. The informant stated that he had received the cocaine from Jones.

¶5. The informant testified that he had not disturbed the contents of the package, from

the time he received it from Jones, until he gave it to the authorities. He had, however,

removed the package from a foil wrapper and placed it in a plastic bag, because the

foil was tearing.

¶6. The informant was searched, equipped with a body transmitter and cassette

recorder, and given $900 in official funds. At approximately 11:05 p.m., the informant

left the officers' presence on foot, while the officers maintained audio surveillance. The

informant was to give Mathew Jones $900 for the package of cocaine.

¶7. At approximately 11:11 p.m., the informant arrived at Jones' home. Officers

Vanderslice and Oster then heard the informant talking with Jones for approximately

twenty-eight minutes; the officers recognized both voices. The officers also heard the

voices of an unidentified male and female. The informant testified that these voices
belonged to Robert "Little Robert" Allen, Jr., and Annette Richardson Jones.(2)

¶8. Jones asked "You sold it all?" -- referring to the rocks of cocaine. The informant

asked, "So you don't know when you're going to have no more?" -- to find out when

Jones would have more cocaine. Jones indicated that "it was too dark to go get it from

back in his yard." Jones also stated that, when he bought from someone else, he lost

money. Jones further stated that he once received a $100 bill (presumably for crack

cocaine), and that he immediately changed it, in case it was "marked". In addition,

Jones indicated that he would have given the informant $200, if the informant had

brought $1,000 for the total package.

¶9. Agent Vanderslice listened contemporaneously to the entire conversation between

the informant and Jones; Agent Oster heard most of the conversation, but was also

engaged in conversation with Captain Bobby Bell, a veteran of the Brookhaven Police

Department(3). Captain Bell testified that he heard portions of the conversation between

the informant and Jones, which indicated that cocaine could be found in Jones'

home.(4)

¶10. The informant returned to the officers. Several officers went to Jones' residence,

where they arrived at 11:39 that evening. The occupants of the residence (including

Jones and his wife) were detained, while a search warrant was obtained.

¶11. The search warrant was executed at approximately 1:30 a.m., June 11, 1997. The

officers discovered $800 of the official funds, which had been given to the informant

earlier that evening. The agents also seized: one napkin with plastic wrap that contained

cocaine residue (which was found in a flower pot in Jones' bedroom); one rifle; one

Uniden Bearcat Scanner; one shotgun; three boxes of sandwich bags; four butane

lighters; and, two boxes of razor blades.(5) Jones was then arrested.

¶12. After the house was secure, Vanderslice met the informant and retrieved the body

transmitter and recorder from the informant. The informant testified that he had not

touched the tape. In addition, the informant gave Agent Vanderslice $100 of the

official funds, which had been issued previously that evening. The tape-recorded

conversation between the informant and Jones indicated that the $100 was payment

from Jones for selling the drugs.

¶13. The informant denied that he borrowed money from or owed money to Jones.

However, three of Jones' friends (two of whom admitted to having previously used

illegal drugs) testified that, in late May or early June,1997, they saw Jones give the

informant money at the informant's request.

¶14. At least three witnesses testified that the informant was not a truthful person. For

example, Officer Arlustra Henderson, the Brookhaven Chief of Police, testified that the
informant was not truthful in an interview on a previous case.

¶15. The informant hoped that, by cooperating with the authorities, he would receive a

reduced sentence on a pending drug charge. However, the officers did not mention or

promise a reduced sentence, and "[n]o deal was made." The informant also knew that

he had to give the police someone else's name, in order to stay out of prison.

LEGAL ANALYSIS

A. Whether the evidence is insufficient to support the conviction pursuant

to the indictment and relevant law, such that the lower court erred in not

granting a directed verdict pursuant to the Mississippi Rules of Procedure?

¶16. Jones first argues that he should have been granted a directed verdict.

Requests for a directed verdict and motions JNOV implicate the sufficiency of the

evidence. The standard of review for the legal sufficiency of the evidence is wellsettled:

[W]e must, with respect to each element of the offense, consider all of the

evidence--not just the evidence which supports the case for the prosecution--in

the light most favorable to the verdict. The credible evidence which is consistent

with the guilt must be accepted as true. The prosecution must be given the benefit

of all favorable inferences that may reasonably be drawn from the evidence.

Matters regarding the weight and credibility to be accorded the evidence are to be

resolved by the jury. We may reverse only where, with respect to one or more of

the elements of the offense charged, the evidence so considered is such that

reasonable and fair-minded jurors could only find the accused not guilty.

Gleeton v. State, 716 So. 2d 1083, 1087 (Miss. 1998) (citations omitted).

¶17. Jones argues that this case is based solely on the testimony of the confidential

informant and circumstantial evidence. Given the eye-witness testimony and the

audiotape, Jones' argument that this is a circumstantial evidence case is clearly

specious. It is true, however, that the primary evidence on the delivery charge in this

case came from the informant.(6) It is also true that the informant's credibility was

attacked.

¶18. Jones argues that the informant's testimony amounted to uncorroborated

statements of an accomplice.

This Court has long held that the testimony of an accomplice must be viewed with

"great caution and suspicion. Where it is uncorroborated, it must also be

reasonable, not improbable, self-contradictory or substantially impeached." Jones
v. State, 368 So.2d 1265, 1267 (Miss.1979) (and numerous cases cited therein);

See also Derden v. State, 522 So.2d 752, 754 (Miss.1988); Winters v. State, 449

So.2d 766, 771 (Miss.1984); Parker v. State, 378 So.2d 662, 663 (Miss.1980). If

the uncorroborated accomplice testimony does not suffer from these infirmities,

such testimony may be found to adequately support a conviction. See, e.g.,

Oates v. State, 421 So.2d 1025, 1031 (Miss.1982); Catchings v. State, 394

So.2d 869, 870 (Miss.1981); Jones v. State, 381 So.2d 983, 988 (Miss.1980).

The trial court, in its discretion, may grant a cautionary jury instruction concerning

accomplice testimony. This discretion is not absolute however, and may be

abused if no cautionary instruction was given, and (1) the witness was, in fact, an

accomplice, and, (2) the testimony was not corroborated. Derden, 522 So.2d at

754.

Strahan v. State, 729 So. 2d 800, 805 (Miss. 1998) (quoting Johns v. State, 592

So.2d 86, 88-89 (Miss.1991)).

¶19. The record reflects that the trial judge refused defense counsel's proposed

cautionary instruction, and ruled that there was "no evidence that [the informant] was

an accomplice in the possession or the delivery." Indeed, there is nothing in the record

to indicate that the informant was charged as an accomplice in this case.

¶20. Assuming, arguendo, that the informant could be considered an accomplice, his

testimony was corroborated (a) by the large packet of cocaine given to the authorities,

and (b) by the tape, which indicates that Jones paid the informant for selling the large

packet of cocaine. "'[T]he uncorroborated testimony of an accomplice may be

sufficient to convict an accused. Where there is slight corroborative evidence, the

accomplice's testimony is likewise sufficient to sustain the verdict.'" Ballenger v.

State, 667 So. 2d 1242, 1253 (Miss. 1995) (quoting Mason v. State, 429 So. 2d 569,

571 (Miss. 1983)). Thus, given this authority, the corroborative evidence in this case is

sufficient to support the conviction.

¶21. Jones also argues that the State failed to dispute the alibi evidence in this case,

which was given by Darlene Graham, Jones' sister-in-law. Basically, Jones is arguing

that his witnesses were more convincing than the State's witnesses. However, as stated

earlier, "[t]he prosecution must be given the benefit of all favorable inferences that may

reasonably be drawn from the evidence. Matters regarding the weight and credibility to

be accorded the evidence are to be resolved by the jury." Collier v. State, 711 So. 2d

458, 461(Miss. 1998). Therefore, Jones' argument on this point is without merit.

B. Whether the trial court committed reversible error by permitting the

prosecutor to elicit testimony of a separate and distinct crime, depriving

Mathew Jones of due process under the federal and state Constitutions
and denying Jones a fundamentally fair trial?

¶22. Jones also argues that error occurred when the informant was allowed to testify

that "[the informant] and Mathew Jones possessed and packaged cocaine on a

separate date alleged in indictment. The trial court's failure to sustain the objection to

the prior act, allowing evidence of commission of another crime, was error." This

assertion of error is not supported by the record. Therefore, Jones' argument is

without merit.

C. Whether the confidential informant, Andrea Jones, was a reliable

witness and that in violation of appellant's basic rights said informant's

testimony was admitted?

¶23. Jones further argues that the informant's testimony was unreliable and that the trial

court erred by admitting it. Jones cites no authority for this argument. "'The appellant

bears the burden on appeal, and we will entertain no claims for which no supporting

authority has been cited.'" Cavett v. State, 717 So. 2d 722, 724 (Miss. 1998) (quoting

Beckwith v. State, 707 So.2d 547, 597 (Miss.1997)).

¶24. Even if this argument were not procedurally barred, it is without merit. Jones

basically claims that Officer Arlustra Henderson, the Brookhaven Chief of Police, was

not allowed to testify regarding remarks made by the informant, which were relevant to

the informant's credibility.

¶25. In fact, defense counsel did question Chief Henderson, and the following

exchange occurred:

Q. Now, do you know [the informant]?

A. I do.

Q. And do you know the reputation as far as [the informant] for truth and

veracity?

A. I had dealing with [the informant] on one occasion concerning a felony.

Q. And as far as him being truthful?

A. He wasn't truthful to me on that case that I had the opportunity to interview him on.

Thus, Jones' argument (that Henderson's testimony on this point was erroneously

excluded) appears to be contradicted by the record.

¶26. Furthermore, "an assignment of error regarding exclusion of evidence may not be

based on a ruling that admits or excludes evidence unless a substantial right of the
party is affected . . . ". Harris v. State, 731 So. 2d 1125, 1131 (Miss. 1999) (citing

Cooper v. State, 628 So. 2d 1371, 1374 (Miss. 1993)). See also M.R.E. 103 (a)

("Error may not be predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected . . . "). Jones has not demonstrated any

effect on a substantial right.

¶27. In addition, Jones argues that all the informant's testimony should have been

excluded as unreliable. As stated earlier, there were attacks on the informant's

credibility and motive for testifying. All of this was presented to the jury for

consideration. "'The relevancy and admissibility of evidence are largely within the

discretion of the trial court and reversal may be had only where that discretion has

been abused.'" Johnson v. State, 655 So. 2d 37, 42 (Miss. 1995) (quoting Roberson

v. State, 595 So.2d 1310, 1315 (Miss.1992)). The informant was the primary witness

against Jones on the delivery charge. His testimony was corroborated by the package

of cocaine and the audiotape. Thus, as discussed earlier, the admission of the

informant's testimony was not an abuse of discretion. For these reasons, this

assignment of error is without merit.

D. Whether the lower court judge erred in its failure to recuse and remove

itself from this case based on bias?

¶28. Jones next argues that the trial judge should have recused in this case, due to

tension between the trial judge and the defense attorney. Jones contends the

following:(7)

[The circuit judge's] actions at trial did not exhibit the fairness and impartiality

required by law. The lower court judge improperly refused to hear defendant's

motions, excluded testimony that should have been admitted. He allowed the

prosecution to amend indictment, immediately prior to trial limited appellant's time

in giving the opening statement and rudely ordered appellant's attorney to shut up

in open court the circuit judge's behavior toward defense counsel was antagonistic

throughout the trial.

¶29. Jones does not cite to the record on any of these assertions. An example of how

the trial judge "improperly refused to hear defendant's motions" could not be found.

Furthermore, to the extent that Jones has raised specific evidentiary rulings, those

instances have been addressed.

¶30. Jones also argues that the trial judge demonstrated bias by allowing the

amendment of the indictment. According to recent caselaw, the amendment of the

indictment was proper. See Burrell v. State, 726 So. 2d 160, 162 (Miss. 1998). See

also Uniform Circuit and County Court Rule 7.09 (which provides, in pertinent part,

that "[a]ll indictments may be amended as to form but not as to the substance of the
offense charged. Indictments may also be amended to charge the defendant as an

habitual offender . . .").

¶31. In addition, the record reflects that the trial judge limited both sides to ten minutes

on opening arguments -- not just the defense. The record also reflects that no

contemporaneous objection was made to this limitation of oral arguments. As such,

consideration of this issue is precluded. See Russell v. State, 670 So. 2d 816, 826

(Miss. 1995) ("This Court will not address errors on appeal where the defendant failed

to raise a contemporaneous objection at trial."). Furthermore, the length of opening

arguments is clearly a matter within the trial judge's discretion. See generally Walker

v. State, 671 So. 2d 581, 608 (Miss. 1995) ("'Generally the amount of time granted for

closing argument rests within the sound discretion of the trial judge.'") (quoting Willie

v. State, 585 So. 2d 660, 675 (Miss. 1991)). See also Conner v. State, 684 So. 2d

608, 614 (Miss. 1996) (trial judge does not abuse discretion, where defendant "fails to

suggest how a lengthier argument might have changed the outcome of the case.").

¶32. The record reflects that the trial judge did, in fact, instruct the defense attorney to

"shut up", but it was outside of the presence of the jury, and after defense counsel's

repeated objection to the same issue. Admittedly, the use of the phrase "shut up" is

impolite and is poor courtroom decorum. However,

. . . this Court has acknowledged that the actions of a trial judge can be bad

enough to prejudice the jury. See Waldrop v. State, 506 So.2d 273, 276

(Miss.1987) (trial judge understandably "lost his cool" in front of jury). However,

the disputed interactions in the case sub judice were limited to arguments held

outside the presence of the jury. Therefore, [the appellant's] argument that the trial

judge's demeanor resulted in an unfair trial is without merit.

Cavett, 717 So. 2d at 725.

¶33. In support of this argument, Jones cites Davis v. Neshoba County Gen. Hosp.,

611 So. 2d 904 (Miss. 1992). That case sets forth the proper standard for reviewing

the denial of a motion to recuse. The question to be asked is, whether, a reasonable

person, with knowledge of all the circumstances, would harbor doubts about the

judge's impartiality. Davis, 611 So. 2d at 905. "Keeping in mind the maxim that a

presumption of impartiality exists, this Court reviews a judge's refusal to recuse himor herself via application of a manifest-error standard." Id. Jones has produced no

evidence to rebut the presumption of impartiality, or to demonstrate manifest error on

the part of the trial judge. Therefore, this issue is without merit.

E. Whether the lower court judge erred in admitting evidence from an

illegal search warrant and wrongfully admitted the audiotape and illegal
substance into evidence?

¶34. Jones next argues that the chain of custody was incomplete for the large package

of crack cocaine admitted in this case. Jones further argues that the audiotape was not

properly authenticated, prior to being admitted in this case. His arguments are primarily

based on his contention that the testimony of the informant should be wholly

disregarded as unreliable. The admissibility of the informant's testimony has already

been addressed.

¶35. Neither the transcript from the suppression hearing nor the actual exhibits are

included in the record on appeal. However, the record reflects that both these items

were admitted over defense counsel's objection.

¶36. With regard to the chain of custody on the cocaine, Jones' basic argument is that

no one saw him give the cocaine to the informant. Therefore, Jones contends that no

one can prove that the cocaine did not come from the informant, or, that the informant

did not tamper with the cocaine.

This Court has held that the test of whether there has been a proper showing of

the chain of possession of evidence is whether there is any indication or

reasonable inference of probable tampering with the evidence or substitution of

the evidence. Gibson v. State, 503 So.2d 230, 234 (Miss.1987); Barnette v.

State, 478 So.2d 800, 804 (Miss.1985); Lambert v. State, 462 So.2d 308, 312

(Miss.1984); Morris v. State, 436 So.2d 1381, 1388 (Miss.1983); Harrison v.

State, 307 So.2d 557, 561 (Miss.1975); Nix v. State, 276 So.2d 652, 653

(Miss.1973); Grady v. State, 274 So.2d 141, 143 (Miss.1973).

The State produced the witnesses to sufficiently satisfy the chain of custody.

However, "the burden to produce evidence of a broken chain of custody (i.e.,

tampering) is on the defendant." Hemphill v. State, 566 So.2d 207, 208

(Miss.1990) (citing Nix, 276 So.2d at 653) (emphasis added). Additionally, "[m]

atters regarding the chain of custody of evidence are largely left to the discretion

of the trial judge, and 'unless this judicial discretion has been so abused as to be

prejudicial to the defendant, this Court will not reverse the ruling of the trial court.'

" Doby v. State, 532 So.2d 584, 588 (Miss.1988) (quoting Morris, 436 So.2d at

1388).

White v. State, 722 So. 2d 1242, 1244-45 (Miss. 1998).

¶37. The informant testified that he removed the foil from around the package and

placed its contents in a plastic bag. However, the informant testified that he did not

tamper with the contents of the bag (forty-five rocks cocaine).
¶38. Furthermore, the defendant was recorded asking the informant if all the drugs

were sold. The defendant also paid the informant for selling the drugs. Therefore, any

argument with regard to the chain of custody of the drugs would appear to be

specious. Thus, Jones has failed to meet his burden of proving that tampering

occurred, such that the trial judge abused his discretion in admitting the cocaine.

¶39. Jones also argues that the audiotape that was admitted in this case was not

properly authenticated. Basically, Jones contends that the failure to properly identify

the voices on the tape renders the tape inadmissible. This argument is contradictory to

the record. The informant identified the four people on the tape: himself, Jones, Jones'

wife, and Robert "Little Robert" Allen. In addition, both officers Oster and

Vanderslice identified the voices of the informant and the appellant. For this reason,

Jones' argument on this point is specious.

As [a] condition precedent to admissibility, the recording must be proven

authentic pursuant to Miss. R. Evid. 901. Rule 901 is satisfied if evidence is

introduced which is "sufficient to support a finding that the matter in question is

what its proponent claims."

* * *

Whether the evidence presented satisfies . . . [Rule] 901 of the Mississippi Rules

of Evidence is a matter left to the discretion of the trial judge. Miss. R. Evid.

104(a). His decision will be upheld unless it can be shown that he abused his

discretion. Stromas, 618 So.2d at 119 (citing Butler, 592 So.2d at 986).

Ragin v. State, 724 So. 2d 901, 903 (Miss. 1998). Based on the testimony of the

informant and the investigating officers, there was sufficient evidence to show that the

recording was what the State claimed it to be. For this reason, the trial judge did not

abuse his discretion in admitting the audiotape.

F. Whether the lower court acted improperly by sentencing appellant to a

mandatory sixty-six years in the custody of the Mississippi Department of

Corrections?

¶40. Jones' final argument is that the trial judge erred by sentencing him as an habitual

offender, with enhanced punishment, to sixty years in prison on Count I and six years

in prison on Count II. The record reflects that Jones was sentenced to thirty years on

Count I and three years on Count II (pursuant to the sentences outlined in Miss Code

Ann. § 41-29-139). Those sentences were then doubled (pursuant to Miss. Code Ann

§ 41-29-147, which allows for such enhancement for repeat offenders). Finally, as an

habitual offender under Miss. Code Ann. § 99-19-81, Jones is ineligible for parole.

That is, Jones' total sentence is sixty-six years in prison, without parole. Jones argues
that this sentence is cruel and unusual punishment, and is in violation of the Eighth

Amendment.

¶41. Traditionally, "[t]his Court has found that sentencing, 'is within the discretion of

the trial court, and this Court will not review the sentence, if it is within the limits

prescribed by statute.'" Berry v. State, 722 So. 2d 706, 707 (Miss. 1998) (quoting

Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)).

As a general rule, a sentence will not disturbed on appeal so long as it does not

exceed the maximum term allowed by statute. Wallace v. State, 607 So.2d 1184,

1188 (Miss.1992); Fleming v. State, 604 So.2d 280, 302 (Miss.1992); Reed v.

State, 536 So.2d 1336, 1339 (Miss.1988); Corley v. State, 536 So.2d 1314, 1319

(Miss.1988). However, where a sentence is "grossly disproportionate" to the

crime committed, the sentence is subject to attack on the grounds that it violates

the Eighth Amendment prohibition of cruel and unusual punishment. Wallace,

607 So.2d at 1188; Fleming, 604 So.2d at 302.

In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the

U.S. Supreme Court articulated a three-prong test for evaluating proportionality.

The elements include:

(1) The gravity of the offense and the harshness of the penalty;

(2) Comparison of the sentence with sentences imposed on other criminals in the

same jurisdiction; and

(3) Comparison of sentences imposed in other jurisdictions for commission of the

same crime with the sentence imposed in this case.

Solem, 463 U.S. at 292, 103 S.Ct. at 3011.

Stromas v. State, 618 So. 2d 116, 122-23 (Miss. 1993).

¶42. Jones was convicted of delivering a large quantity of cocaine (forty-five rocks)

and of possession of a small amount of residue. There is nothing in the record

regarding the other two factors of the Solem test. Nonetheless, given the gravity of

Jones' crimes alone, the sentence is not considered grossly disproportionate. See

Stromas, 618 So. 2d at 123 ("Declaring a sentence violative of the Eighth Amendment

to the U.S. Constitution carries a heavy burden and only in rare cases should this

Court make such a finding.")

¶43. In support of his argument, Jones cites Davis v. State, in which this Court

considered the mandatory sixty-year sentence of a young mother, who was convicted

of selling two rocks of cocaine within 1,500 feet of a church building. See Davis v.
State, 724 So. 2d 342, 343-46 (Miss. 1998). This Court remanded the case for

reconsideration of the sentence, and noted that: (a) there was little in the record to

explain the sentence; (b) the defendant was not being tried as an habitual offender; (c)

the trial judge gave no explanation for imposing the maximum sentence; and, (d) the

trial judge did not have the benefit of a pre-sentencing investigation. Id. at 345 ("Even

as to those circumstances for which the statutes provide mandatory sentences, the

punishment must be weighed against the prohibition imposed in the Eighth Amendment

to the United States Constitution against cruel and unusual punishment.").

¶44. The case sub judice is easily distinguished from Davis. Jones was convicted of

delivery of a large quantity of cocaine (forty-five rocks), and he received a separate

sentencing hearing. In addition, Jones was charged as an habitual offender, and the trial

judge was well aware of Jones' criminal history. For these reasons, the sentence was

proper. See Stromas, 618 So.2d at 123 (where defendant was convicted of selling a

small amount of cocaine received sixty-year sentence as a repeat offender, this Court

held that the sentence was not "grossly disproportionate.").

CONCLUSION

¶45. The issues raised by Jones are without merit. Therefore, the judgment of the trial

court is affirmed.

¶46. COUNT I: CONVICTION OF POSSESSION OF UNLAWFUL

DELIVERY OF COCAINE AND SENTENCED TO SERVE A TERM OF

SIXTY (60) YEARS IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS AFFIRMED.

COUNT II: CONVICTION OF POSSESSION OF COCAINE AND

SENTENCED TO SERVE A TERM OF SIX (6) YEARS IN THE CUSTODY

OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

APPELLANT SENTENCED AS AN HABITUAL OFFENDER UNDER MISS.

CODE ANN. § 99-19-81 WITH ENHANCED PUNISHMENT UNDER MISS.

CODE ANN. § 41-29-147, FIFTEEN (15) YEARS AND PAY COURT COSTS.

SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH, MILLS, WALLER AND

COBB, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.

1. The informant was under a suspended sentence for a burglary charge. In addition,

the informant had been arrested for distribution of cocaine but had not been
sentenced. The informant knew that cocaine distribution violated his probation on the

burglary charge. Prior to the trial sub judice, the informant pled guilty to the

distribution of cocaine charge, and his sentence was suspended.

2. Annette Richardson was Jones' girlfriend at the time of the transaction, but they

were married prior to trial.

3. Bell had known the informant for several years, and had no reason to believe that the

informant was lying.

4. However, the word "cocaine" was never mentioned in the entire conversation

between the informant and Jones. The informant admitted that he was familiar with the

terminology of the cocaine trade, and testified that "two peoples are dealing with drugs

or whatever, you don't say the word 'cocaine'. We've got nicknames for those words,

different words for cocaine or sales and cocaine."

5. Agent Oster testified that "rocks" of crack cocaine were usually cut with razor

blades from "cookies" of cocaine that had been "cooked" from powdered cocaine.

Cocaine is generally packaged in sandwich bags that have been heat sealed with a

butane lighter. There was no evidence that the razor blades, sandwich bags, or lighters

found in Jones' kitchen had been used in connection with cocaine. No cocaine residue

was found in the oven, on the kitchen table, or on the cooking utensils.

6. Jones does not attack the sufficiency of the evidence on the possession conviction

(that is, where the police entered Jones' home, and found the cocaine residue in the

bedroom where Jones was sleeping).

7. Jones also cites a litany of injustices alleged to have been committed by the trial

judge against the defense counsel in other cases. Those issues are not in the record

sub judice, and will not be addressed.