                        IN THE COURT OF APPEALS 12/03/96
                                             OF THE
                                  STATE OF MISSISSIPPI
                                      NO. 93-KA-00946 COA

                                    CONSOLIDATED WITH

                                      NO. 93-KA-01020 COA



DICK PARKER A/K/A WILLIE D. PARKER

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




SOUTHWICK, J., CONCURRING:



I agree with the opinion of the Court on Issues I, II and III, I write separately to voice my
disagreement with one of the issues discussed in the majority opinion. That issue deals with whether
or not the trial court erred in holding that there was sufficient proof that the offense was committed
within 1,500 feet of a school.

Proof was offered in two forms. One was through use of a map by a testifying officer. There is some
testimony that the map came from the Bruce City Clerk, but whether it was a public record is never
stated. Rule 901(7) allows maps to be introduced into evidence as proof of what is on them, if the
map is authenticated as a public record. Whether this was a public record or not is academic, since
the map was never introduced into evidence and does not appear of record on appeal. Thus the map
is not evidence. The opinion of the officer who examined the map is inadmissible, since at best he was
giving opinion testimony as a lay witness. Under Rule of Evidence 701, such testimony is admissible
only if based on personal observation. The officer made no personal observations, but merely tried his
best to decipher a secondary source, the unadmitted map. Neither Rule 901 nor Rule 701 is a basis to
allow that testimony. If a map had been properly authenticated and admitted, it would have been
credible evidence. The opposing party could then attempt to dispute its interpretation. None of that
happened.

What we are left with is the trial judge’s taking judicial notice that the offense had, in fact, taken
place within 1,500 feet of the school. As the majority discusses, judicial notice may be taken of a fact
that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned." M.R.E. 201. The facts should in some fashion be
subject to review. The majority analogized this situation to that approved in the comment to Rule
201, namely, that judicial notice could be taken that a local department store was on a particular
street. I disagree. The comment example is quintessentially a matter "generally known within the
territorial jurisdiction" and "capable of accurate and ready determination."

What has been judicially noticed here is an "eyeball measurement." Perceptions of distance or weight
or other measurements are inherently inexact. Lay opinion as to eyeball measurements are at least
subject to cross-examination. The perceiver’s powers of observation and even memory are
immediately called into question, a question that cannot be answered from a cold appellate record. I
will take judicial notice that different and equally honest eyewitnesses to a crime may describe a
suspect with widely varying estimates of height and weight. Quite confident providers of directions
can describe the distance to a desired destination or landmark along the way as being a mile, when in
fact it is two, or vice versa.

Although I would always find rough estimates of distance to be inherently unreliable, I will
acknowledge that some distances are so obvious as to be subject to judicial notice. That would occur
only if there were benchmarks for our review. In other words, Rule 201 permits judicial notice when
there is some context for the opinion that permits its accuracy to be determined. For example, were
there evidence in the record that the site of the sale and the school were directly across the street
from each other, I would accept judicial notice that city streets are considerably less than 1500 feet
wide. No such evidence appears here. Instead, all we have is one person’s opinion, no different than
lay opinion testimony even if by a judge. Under Rule 201 this distance is not a matter that we can
hold on this record was either generally known or subject to accurate and ready determination from
reliable sources.

Although I am not in agreement with the majority’s analysis of judicial notice, the analysis does not
affect the sentencing of Parker in this case. Parker was sentenced to thirty years imprisonment. For
sale of cocaine, Parker could be sentenced to a maximum of thirty years imprisonment. Miss. Code
Ann. § 41-29-139(b)(1) (1972). However, since Parker was a habitual offender, he had to be
sentenced to the maximum, and in addition the sentence was to be without probation or parole. Id. §
99-19-81. That is exactly the sentence he received. The case does not have to be sent back for
resentencing. Consequently, I concur in the result.

FRAISER, C.J., COLEMAN, AND MCMILLIN, JJ., JOIN THIS SEPARATE OPINION.
