                         IN THE COURT OF APPEALS
8/12/97


                                  OF THE


                           STATE OF MISSISSIPPI




                            NO. 95-KA-01264 COA




WILLIAM TRIPLETT A/K/A WILLIAM JAMES

TRIPPLETT, A/K/A WILLIE TRIPPLETT 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. BETTY W. SANDERS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DONNA J. HODGES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: W. GLEN WATTS
DISTRICT ATTORNEY: FRANK CARLTON

NATURE OF THE CASE: POSSESSION WITH INTENT TO TRANSFER COCAINE

TRIAL COURT DISPOSITION: POSSESSION OF COCAINE W/I: SENTENCED TO 10 YRS;
ORDERED TO PAY $1,000.00 FINE

MOTION FOR REHEARING FILED: 8/20/97

CERTIORARI FILED: 10/16/97

MANDATE ISSUED: 12/30/97




BEFORE THOMAS, P.J., HERRING, AND SOUTHWICK, JJ.

THOMAS, P.J., FOR THE COURT:


Willie Triplett appeals his conviction of possession of cocaine with the intent to transfer, raising the
following issues as error:

I. WHETHER THE LOWER COURT ERRED IN FAILING TO REQUIRE THE STATE TO
IDENTIFY THE CONFIDENTIAL INFORMANT.


II. WHETHER THE LOWER COURT ERRED IN DENYING THE MOTION FOR A NEW
TRIAL.


III. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF
THE EVIDENCE.

As the standard for a new trial motion is whether the evidence was against the overwhelming weight
of the evidence, we will combine Triplett's second and third issues. Finding no error, we
affirm.FACTS

On September 23, 1994, Officer Dale Jones of the Indianola Police Department received some
information that drugs were being sold at 509 Porter Street, Indianola, Sunflower County,
Mississippi. Officer Jones set up a surveillance of the premises. He used binoculars to observe
numerous cars driving in front of the residence then stopping and exchanging money for what
appeared to be crack cocaine.

Jones testified that he had a confidential informant working with him. The informant was wired for
sound with a hidden body microphone. The informant approached William Triplett to purchase some
drugs. Over the body microphone, Officer Jones heard the informant ask for some drugs. During trial
when Officer Jones mentioned what was said by the informant, the defense made an objection to
hearsay. The circuit court sustained the objection. Officer Jones then testified only to what Triplett
and Holmes, his companion, said. Jones testified that they told the informant that "We got it, but
we're not going to sell to you." Jones stated that while watching through his binoculars, Triplett took
what looked like crack cocaine out of his pocket and showed it to the informant.

Officer Jones went to Judge Buchanan and with the above mentioned information obtained a search
warrant. After receiving the warrant, Officer Jones with Officer Fernando Harris and several officers
went to serve the search warrant. When Triplett saw the officers approaching, he started running.
While running, Triplett threw a napkin on the ground. Jones testified that Officer Harris, who was
pursuing Triplett, retrieved the napkin.

The napkin with three crack cocaine pieces was identified by Jones as being what Officer Harris gave
him after picking it up off the ground at 509 Porter Street.

Officer Fernando Harris was next to testify for the State. Harris testified that on September 23, 1994,
he and Officer Jones had surveyed the home of 509 Porter Street and observed several vehicles pull
up and hand money to Mr. Holmes, Triplett's co-defendant below. Later he and Officer Jones sent a
confidential informant to 509 Porter Street to attempt to purchase a controlled substance, and when
the buy did not happen, he and Officer Jones went to Judge Buchanan to get a search warrant. After
obtaining the search warrant, Officer Harris, along with other officers, went to serve the warrant.
Upon approaching the premises, Triplett ran away. While running, he threw a napkin down. Harris
picked it up and found what looked like crack cocaine.

William Triplett testified in his own behalf. He stated that on September 23, 1994, he and several
friends were over at Stanley Holmes's house playing basketball and cleaning up cars. Triplett stated
that when he saw the police coming to the house he ran because he had approximately $350.00 worth
of unpaid parking tickets. He testified that he did not throw anything on the ground and that he did
not sell any cocaine, nor did he use cocaine.

The jury returned a verdict of guilty of possession with the intent to deliver.

                                              ANALYSIS

                                                    I.

 WHETHER THE LOWER COURT ERRED IN FAILING TO REQUIRE THE STATE TO
              IDENTIFY THE CONFIDENTIAL INFORMANT.

During the trial, testimony was heard about a confidential informant who approached Triplett and
asked to purchase cocaine. Triplett sought the identity of this confidential informant prior to and
during the trial. The State refused to identify the informant, and the lower court did not compel the
release of this information. Triplett argues that because the confidential informant did more than
provide information to the police, but actually took part in the police activity and had exculpatory
information, the State was compelled to identify the informant. Triplett complains that the refusal to
do so, and the lower court's failure to compel such identification, was in contravention of Mississippi
case law and rules of procedure.

Triplett cites Mississippi Uniform Circuit and County Court Rule 9.04, Discovery, which provides in
pertinent part:

A. Subject to the exceptions of subsection "B", below, the prosecution must disclose to each
defendant or to defendant's attorney, and permit the defendant or defendant's attorney to inspect,
copy, test, and photograph upon written request and without the necessity of court order the following
which is in the possession, custody, or control of the State, the existence of which is known or by the
exercise of due diligence may become known to the prosecution:


....


6. Any exculpatory material concerning the defendant.


B. The court may limit or deny disclosure authorized by subsection "A" if it finds that there is a
substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or
unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any
usefulness of the disclosure to the defense attorneys.


The following is not subject to disclosure:


....


2. Informants. Disclosure of an informant's identity shall not be required unless the confidential
informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe
the constitutional rights of the accused or unless the informant was or depicts himself/herself as an
eyewitness to the event or events constituting the charge against the defendant.

URCCC 9.04 (A)(6), (B)(2).

Triplett argues that Rule 9.04(B)(2) above compelled the State to identify the informant because the
informant took part in the police activity and since the evidence produced indicated the defendant
refused to sell cocaine to the informant after being asked to do so, thus the confidential informant
held evidence that was exculpatory under Rule 9.04(A)(6).

The State argues that the informant was not a necessary witness since the informant was not a
witness to the factual scenario constituting the basis of the charge against Triplett. Officer Jones and
Harris both testified to observing what they took to be drug trafficking occurring in front of 509
Porter Street. Officer Jones testified to seeing both money and cocaine being exchanged with the aid
of binoculars. Both Officers Harris and Jones testified to seeing Triplett throw down a napkin with
crack cocaine wrapped inside. Both Harris and Jones were present with a search warrant when
Triplett ran away, throwing the cocaine to the ground.

In Esparanza v. State, 595 So. 2d 418, 424 (Miss. 1992), the Mississippi Supreme Court stated that:
The state need not disclose an informant's identity unless the informant will be a witness at trial or
was an eyewitness to the offense, or if failure to disclose would violate a constitutional right of the
defendant. . . .

In this case, the confidential informant did not witness the offense charged and did not serve as a
witness in the proceeding. The informant merely provided data that established probable case to
support a search warrant. Under Mississippi law, that degree of connection with the crime charged
constitutes too tenuous a link to justify disclosing the informant.

Id. (citations omitted).

Generally, the State may not be compelled to divulge the name of a confidential informant; however,
this privilege will give way to the rights of the accused where the informant's identity is relevant and
helpful to the defense or is essential for a fair determination of the State's case against the accused.
The disclosure of the identity of one who is merely an informer and not a participant nor a material
witness is not generally required. See Esparanza, 595 So. 2d at 424; Bradley v. State, 562 So. 2d
1276, 1279 (Miss. 1990); Rose v. State, 556 So. 2d 728, 733 (Miss. 1990); Read v. State, 430 So. 2d
832, 836 (Miss. 1983).

In Triplett's circumstances the informant was a mere "tipster" who only had peripheral knowledge of
the crime and was not an active participant in the criminal act and/or a material witness on the issue
of guilt or innocence. The record shows the informant was not an active participant in the criminal
transaction and clearly had no part in setting it up. She asked for, but did not receive, the drugs and
took no part in the issuance of the search warrant, which lead to the charges against Triplett. Also,
Triplett argues that since the confidential informant asked for but was not sold drugs this information
was relevant and exculpatory. This may be so; however, this information was before the jury. Officer
Jones, during his testimony, let the jury know that the confidential informant asked for the drugs but
was not sold any. Triplett has not let this Court know what other exculpatory information the
confidential informant could have brought forth, and this Court is not about to speculate.

Based on this record, we cannot say that the trial court erroneously exercised its discretion. The
testimony provided by Officers Jones and Harris does not suggest that the confidential informant had
any knowledge which would be necessary for Triplett to receive a fair trial.II.

          WHETHER THE LOWER COURT ERRED IN DENYING THE MOTION

                                        FOR A NEW TRIAL.


                                                   III.

WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE
                           EVIDENCE.

Triplett states that he was indicted for possession with intent to distribute, not for any actual
distribution of cocaine. He argues that proof of possession with intent to distribute should not be
based solely on surmise or suspicion. Stringfield v. State, 588 So. 2d 438, 440 (Miss. 1991). Triplett
states that intent to deliver drugs can be proven in two ways. First, when the defendant possesses
drugs, the quantity and nature of which exceeds personal use, intent can be proven. Murray v. State,
642 So. 2d 921, 923 (Miss. 1994); Esparaza, 595 So. 2d at 427. Triplett argues that, if the testimony
of the officers is to be believed, he possessed only three rocks of cocaine.

Triplett contends that the only evidence which tied him to any distribution of cocaine is the testimony
of Officer Jones. Officer Jones testified that while on surveillance he could see rocks of cocaine being
passed to persons in vehicles. However, Officer Jones could not identify any of these vehicles, nor
could he identify how much money was being passed. Also, he testified that the vehicles came to the
front of the house. Triplett argues that this would have placed the vehicles between Officer Jones and
himself, thus, there is no way he could have possibly seen cocaine rocks from his vantage point.

A motion for a new trial challenges the weight of the evidence rather than its sufficiency. Butler v.
State, 544 So. 2d 816, 819 (Miss. 1989). New trial decisions rest in the sound discretion of the trial
court, and the motion should not be granted except to prevent an unconscionable injustice. Jones v.
State, 635 So. 2d 884, 887 (Miss. 1994); McClain v. State, 625 So. 2d 774, 781 (Miss. 1993). On
review, we accept as true all evidence favorable to the State, and the State is given the benefit of all
reasonable inferences that may reasonably be drawn from the evidence. Id.; Griffin v. State, 607 So.
2d 1197, 1201 (Miss. 1992). The Court will reverse such a ruling only for an abuse of discretion.
McClain, 625 So. 2d at 781.

Both Officers Jones and Harris testified to seeing Triplett involved in cocaine trafficking in front of
509 Porter Street. Jones testified to actually seeing money and cocaine exchanging hands with the
help of a pair of binoculars. Officer Jones also testified to seeing Triplett showing cocaine to the
informant. While Jones did not testify about a sale of cocaine that was consummated between Triplett
and the informant or any other particular person, he did testify to seeing Triplett show cocaine to the
informant as well as pass cocaine into cars in exchange for money more than once.

With testimony such as this, the jury obviously resolved the fact questions in favor of the State. In
light of the fact that the jurors were in the best position to judge the demeanor and credibility of the
witnesses and defendant firsthand, and an appellate court is allowed only the cold record, this Court
is not able to determine that "reasonable and fair-minded jurors" could not have found Triplett guilty
without evidence to the contrary. The trial judge was not in error when he denied Triplett's motion
for new trial.

THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF POSSESSION
OF COCAINE WITH THE INTENT TO TRANSFER AND SENTENCE OF TEN YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.


BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
