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IN THE COURT OF APPEALS 7/15/97 OF THE STATE OF MISSISSIPPI

NO. 94-KA-01196 COA

LEROY MAGEE A/K/A LEROY MAGEE, JR. 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. JAMES E. THOMAS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: WOODROW W. PRINGLE, III ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: MARK WARD NATURE OF THE CASE: CRIMINAL--TRANSFER OF A CONTROLLED SUBSTANCE, ROCK COCAINE, AS A HABITUAL OFFENDER TRIAL COURT DISPOSITION: JUDGMENT OF APPELLANT'S GUILT OF THE TRANSFER OF A CONTROLLED SUBSTANCE AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION AS A HABITUAL OFFENDER MOTION FOR REHEARING FILED:7/22/97 CERTIORARI FILED: 10/6/97 MANDATE ISSUED: 12/11/97 BEFORE BRIDGES, C.J., COLEMAN AND PAYNE, JJ. COLEMAN, J., FOR THE COURT: Pursuant to the jury's verdict of guilty, the Circuit Court of Harrison County entered its final judgment of Leroy Magee, Jr.'s guilt of the transfer of a controlled substance, in which final judgment, the trial judge sentenced him to serve thirty years in the custody of the Mississippi Department of Corrections under Section 99-19-81 of the Mississippi Code of 1972, as amended, said sentence being without hope of parole or probation. The trial judge denied Magee the hope of parole or probation because it also determined that he had been previously convicted at least twice of felonies upon charges separately brought and arising out of separate incidents at different times, pursuant to which Magee had been sentenced to separate terms of one year or more in the state penitentiary in each case. Leroy Magee has appealed in forma pauperis from the trial court's final judgment of his guilt of the transfer of a controlled substance to present two issues for this Court's review and resolution. However, we affirm. I. Facts On July 18, 1993, Greg Conerly, a Gulfport police officer bought a twenty-dollar "rock" of crack cocaine from a male whom he later identified from a "mug" shot as Magee. Conerly had encountered Magee as Magee stepped out into the street in the Gaston Point area of town as Conerly drove a 1988 black Toyota pickup truck down that street. Conerly stopped his truck and motioned for Magee to come over to his truck. Magee obliged Conerly's request and then got in Conerly's pickup. Conerly began driving his pickup, the two exchanged greetings, and Magee asked Conerly what he wanted. Conerly replied that he wanted "a twenty cent piece." Magee's response was to "pull out a piece of rock cocaine" and hand it to Conerly, and Conerly then gave Magee twenty dollars of the City of Gulfport's monetary funds. Conerly then drove around the block and "dropped [Magee] back at

where [he] actually picked him up." Conerly was wearing a "body wire" that allowed his colleagues on the Gulfport Police Department, Sergeant Jeff Michel and another officer, who were parked in an alleyway approximately three blocks from the locale of the transaction, to monitor Conerly's conversation with this particular purveyor of crack cocaine. After he had completed his purchase of the crack cocaine, Conerly described the seller and the clothing he was wearing, which description the body wire transmitted to Sergeant Michel. Conerly described Magee as "a black male, approximately 6 foot in height, weighing 170 pounds, black hair, brown eyes, had a gold chain, red hat, green striped shirt, long green-striped shorts, red and black sneakers." Sergeant Michel then drove to the area in which Conerly had purchased the rock, where he immediately spotted a man who matched Conerly's description. Michel recognized Magee as soon as he spotted him because he had encountered Magee two days earlier in front of Cohea's Lounge, an establishment located four or five blocks west of where Conerly met Magee. Michel and other officers were performing "street level interdiction" the night that he met Magee for the first time at Cohea's Lounge. When he had first met Magee in front of Cohea's Lounge, Michel was dressed in his police uniform. Magee had told Michel his name on that occasion. Magee had violated no law the night that Michel saw him in front of Cohea's Lounge. After Conerly made his buy, he returned to the Gulfport police station where he identified Magee as the man who had sold him the rock as they rode in his pick-up earlier that same afternoon from a "mug" shot taken in 1990 when Magee had been arrested on several charges of burglary. One week later, on July 25, 1993, Conerly again purchased a rock from Magee; but to avoid blowing Conerly's cover, who continued to make street-level, undercover buys of controlled substances until August 27, Magee was not arrested until that same date, August 27, 1993, on an affidavit which had been executed two days earlier on August 25, 1993. II. Trial A Harrison County grand jury subsequently indicted Magee on the charge of transferring a controlled substance in violation of

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