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IN THE COURT OF APPEALS 05/07/96 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00165 COA CHARLES GILBERT APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. GARY EVANS COURT FROM WHICH APPEALED: CIRCUIT COURT OF LEFLORE COUNTY ATTORNEY FOR APPELLANT: DAVID M. HOLLY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: CHARLES SWAYZE, LEFLORE COUNTY PROSECUTING ATTORNEY NATURE OF THE CASE: CRIMINAL:SALE OF COCAINE TRIAL COURT DISPOSITION: CONVICTED OF THE SALE OF COCAINE AND SENTENCED TO TWENTY-FIVE YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS

BEFORE THOMAS, P.J., KING, AND PAYNE, JJ. PAYNE, J. FOR THE COURT: Charles Gilbert sold a twenty-dollar rock of cocaine to Officer Michael Stamps, of the Greenwood Police Department on the night of March 9, 1993. Officer Terry Stanford took control of the drugs purchased by Officer Stamps, sealed the evidence in bags, and took the bags to the crime lab. The name of the suspect was listed on the evidence submission form as "FNU Grant." Officer Stanford testified that the evidence bag labeled as "FNU Grant" identified the cocaine purchased from Charles Gilbert. Officer Stamps also testified at trial and made an in-court identification of Gilbert. Officer Stamps testified that the origin of "FNU Grant" as the identification of Gilbert came from a confidential informant, Jerome Jones. Jerome Jones testified that he accompanied Officer Stamps to buy drugs. Jones testified that Gilbert was the first of the sellers, explaining that he was unsure of Gilbert's name at the time and he believed that others had been calling Gilbert by the name of "Grant." Jerome Jones also made a positive in-court identification of Gilbert. Gilbert called Jessie Leflore as his first witness. Leflore was then also under an indictment for the sale of cocaine to Officer Stamps on the night in question. While on the stand, Leflore identified himself and his address and then after an objection by Leflore's attorney, Leflore invoked his Fifth Amendment right against self-incrimination. The trial court allowed Leflore to be excused. Counsel for Gilbert argued at trial that he should be allowed to ask questions of Leflore, thereby requiring Leflore to invoke his Fifth Amendment right to each question. The trial court again confirmed with Leflore's counsel that Leflore would invoke his right against self-incrimination and not testify beyond his name and address, and the trial court stated on the record that such a procedure would be useless and a waste of time. DISCUSSION Gilbert appeals arguing: THE TRIAL COURT ERRED IN ALLOWING WITNESSES FOR THE STATE TO TESTIFY THAT ONE OF THREE SUSPECTS IDENTIFIED THE DEFENDANT, THEN ALLOWING THE WITNESS (SUSPECT) TO INVOKE HIS FIFTH AMENDMENT PRIVILEGE, AS TO ALL FUTURE QUESTIONS, PRIOR TO THE QUESTIONS BEING ASKED, EFFECTIVELY DENIED THE DEFENDANT THE RIGHT TO CONFRONT A WITNESS PRESENTED AGAINST HIM. Gilbert argues that he was denied the right to confront a witness presented and used against him. Gilbert argues that the State was allowed to use Jessie Leflore's identification of Gilbert as part of its case against Gilbert. This was accomplished through the testimony of Officer Terry Sanford and Officer Michael Stamps who both testified that the way in which they learned Gilbert's real name was through Jessie Leflore. Gilbert argues that the State was allowed, through Officer Stamps and Officer Sanford, to present testimony of a witness who was adverse to Gilbert. "The right of a criminal defendant to confront and cross-examine the witnesses presented against him is secured under both the United States and Mississippi Constitutions." Williamson v. State, 512 So. 2d 868, 873 (Miss 1987) (citing U.S. Const. amend. VI; Miss. Cons. art. III,

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