IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 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 W HICH APPEALED: W I NSTON 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 gram s of

m e tham phetam ine to

a conf i dential inf

o r m a n t and sentenced to eight y e a rs’ i m prisonm ent. T he jury acquitted Gale of two other drug sale counts relating to a m orphine pill a nd a Xanax (alprazolam ) pill he was alleged to have sold at the sam e t im e. O n appeal, Gale contend s t h a t t he jury s hould have received a cautionary instruction on the testim ony of conf idential inf

orm ant s , a n d that the verdict was against the overwhelm ing weight of the evidence. W e f ind no error and af

f irm

. DISCUSSION1. Weight of the Evidence

¶2. Though p resented as Gale’s second i ssue, we will address this contention f irst t o avoid repetition. Gale c ontends that h i s conviction w as a gainst the overwhelm ing weight of the evidence. ¶3. A new t rial based on t he weight o f t h e e v i d e n c e s h o u l d b e g r anted “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 om itted). “[ T]he evidence m ust be viewed in the light m ost f avorable to the verdict[ .]” Je n k i n s v
. S t ate , 131 So. 3d 544, 551 (¶23) (Miss. 2013). And because the m otion f or a new trial is entrusted to the circuit judge, who had a f

irsthand view of the trial, “reversal is warranted only i f the trial court abused its discretion in deny ing [ the] m o tion f or a n e w trial.” W

aits v
. State , 119 S o. 3d 1024, 1028 (¶13) (Miss. 2013). ¶4. Here, the State’s evidence c o n s i s t e d l a r g e l y o f t h e t estim ony of a conf idential inf orm ant, b ut it was also corroborated by the i nf orm ant’s wif

e and by v i d e o and audio recordings m ade by a hidden cam era, which was disguised as a button o n t h e i nf orm ant’s shirt. Prior to t he buy , investigators f rom the sherif

f ’s departm ent m et the inf orm ant and his wif e . T h e i n f

o rm ant and h i s w if

e were searched (the inf

orm ant m ore t horoughly than the wif e, as no f em ale of f icer was available), as well a s their vehicle, a nd then t he investigators gave the inf

orm ant a certain am ount of cash, 1 equipped h im with the recording equipm ent,

1 It w as v ario u sly testif

ied to b e $ 1 2 0 o r $ 1 4 0

.

2and sent him of f to purchase drugs f

rom Gale. ¶5. The inf

orm ant went to a gas station where he used its p hone t o c all Gale and arrange the m eeting. The video recording shows the inf o rm ant m eeting Gale on a deserted road and getting into Gale’s vehicle. The audio is dif f icult to discern, but the two appear to discuss

a price, and G a l e places a s m all baggie on the seat of his vehicle. T he inf orm ant places

m oney on the seat next to the baggie and t hen picks up t he baggie. Gale then quickly picks
up the m o ney . T he baggie’s appearance in the video i s consistent with the one entered into evidence, w hich w as determ ined to have held a little less tha n o n e g r am of

m etham phetam ine. ¶6. The i nf

orm ant was thoroughly cross-exam i ned, and h e adm itted t hat h e was paid $100 f or his r ole in the d

rug buy

. He also adm itted he was f acing f elony charges at t he t im e of the trial, t hough he had not been at the tim e of the buy . He denied that he had been of f ered or expected any

leniency on those charges as a result of his testim ony . ¶7. Gale bases his argum ent as to the weight of evidence on the video, p articularly the inf orm ant’s detour to the convenience store. The inf orm ant spoke f

o r som e tim e t o the clerk, who he testif

ied he knew. During that tim e, a n o lder wom an appears in t h e s t o r e , a nd she places a handbag on the counter near the inf orm ant, which she opens. The wom an say s

som ething that is largely unintelligible, though she seem ed to say that s h e h as “chocolates.” Gale contends on appeal (without citation to the record) t hat “chocolates” is street slang f or

am phetam ines. Ac c ording to Gale, the video established that t he inf orm ant got the

3am

phetam ine f

rom the wom an i n t h e s tore. He contends that the subsequent transaction (with Gale) was actually

just a sale of

the pills (f

or which Gale was acquitted). ¶8. W e see no m erit to this argum ent. W hat exactly occurred during the encounter w ith the w oma n i n t h e c onvenience store is unclear f rom t he v ideo. The inf

orm a nt testif

ied without equivocation that h e purchased t he am phetam ine f

rom Gale. The video appears to corroborate this. The credibil ity of the inf orm ant a nd the question of reasonable doubt
stem m ing f

rom the detour to the c onvenience s tore a nd the l ess-than-perf ect searches prior
to the sale were argued to the jury a n d apparently rejected, at least a s to the

m etham phetam ine. Our suprem e court has “repe a t e d ly held t hat in a crim inal prosecution the jury m ay accept t he testim ony of som e w itnesses and reject that o f o thers, and that they

m ay accept in part and reject in part the evidence on behalf of the [ S]tate or on behalf of the accused. In other w ords, the c r e d i b i lity of witnesses is not f or the reviewing court.” Mangum v. State , 762 So. 2 d 337, 346 (¶35) (Miss. 2000) (citati o n o mi tted). The jury is likewise “entrusted to i nterpret evidence t h a t is c apable of m o re than one r easonable interpretation.” W

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

om itted). ¶9. Af ter reviewing the record, w e c a n n o t s a y t h a t G a l e ’ s conviction is against the overwhelm ing weight of

the evidence. 2. Jury Instruction ¶10. Gale of

f e red instruction D-7, which would have stated:

4The Court instructs the jury that the law looks with suspicion and distrust on the testim ony of an inf

orm ant, and requires t he jury to wei gh that testim ony with great c are and suspicion. You should weigh t he testim ony f r om an inf orm ant, and passing on what weight, if any , y ou should give this testim o ny , y ou should weigh it with great care and c aution, and look upon it with distrust and suspicion. ¶11. In his a rgum e nts on appeal, Gale essentially concedes that t his issue is controlled by
W ebber v. State , 108 S o. 3d 930, 931-32 (¶7) (Miss. 2013), where the Mississippi Suprem e Court held that such an instruction was properly r ef used i f the details o f t he inf orm ant’s pay arrangem e nt are disclosed t o the jury and the inf orm ant is subj e ct to cross-exam ination.
W ebb e r has been reaf

f i rm ed b y the suprem e c ourt 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. A p p . 2 0 1 6 ) ; Beal v. State , 134 So. 3d 383, 386-87 (¶¶14-15) (Miss. Ct. A pp. 2014); Miller v. State , 1 44 So. 3 d 199, 203 (¶17) (Miss. Ct. App. 2014); W allace v. State , 139 So. 3d 75, 77-78 (¶8) (Miss. Ct. App. 2013). ¶12. Gale cannot distinguish his case f rom W ebber ; h is argum e nt on a

p peal is essentially

t hat W ebber was e rroneously decided. But this Court, sitting as an i nterm ediat e a p p e l l a t e court, lacks the authority to overrule decisions of the Mississippi Suprem e Court. Henry v. State , 40 So. 3d 621, 629 (¶34) (Miss. Ct. App. 2010). ¶13. The det a i l s of the inf orm ant’s pay arrangem ent and the surrounding circum stances

were disclosed to the j u r y . The inf orm ant was thoroughly cross-exam ined, and Gale was perm itted to argue that the j ury should not f ind his testim ony credible. The jury was properly instructed that i t was the arbiter of the credibility of witnesses. Thus, the issue of the
5inf

orm ant’s credibility was squarely put to the jury , and that was adequate under Mississippi law. W e bber , 108 So. 3d at 931-32 (¶7). ¶14. AFFIRMED. LEE, C.J., IRVING AND GR I F F I S , P.JJ., BARNES, I SHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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