Bush v. State

• Decision Date: 28 August 1991
• Docket Number: No. 90-KA-0247,90-KA-0247
• Citation: 585 So.2d 1262
• Parties: Randy BUSH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1262

585 So.2d 1262

Randy BUSH v. STATE of Mississippi.

No. 90-KA-0247.

Supreme Court of Mississippi.

Aug. 28, 1991.

Mose Lee Sudduth, Jr., Columbus, for appellant.

Mike C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the Court:

In its February 1989 term, the Lowndes County Grand Jury returned an indictment against Randy Bush charging that he did unlawfully, wilfully and feloniously, knowingly and intentionally sell a controlled substance, to-wit: cocaine, to Thomas Whaley, for and in consideration of $25.00. Bush was tried and found guilty as charged. He was sentenced to fifteen years and was ordered to pay a fine of $20,000.00. Bush appeals.

FACTS

Thomas Whaley was arrested by the Mississippi Bureau of Narcotics on November 28, 1988, for the sale of marijuana and possession of cocaine. As a result, he agreed to help the Bureau by making drug buys from others in the community. In return, the Bureau told Whaley that the D.A. would be told that Whaley had cooperated with the Bureau.

Whaley talked to Bureau agents about making buys from certain people, one of whom was Randy Bush. Whaley had known Bush for eight or nine years. On December 4, 1988, the agents asked Whaley to call Bush.

Whaley asked Bush over the phone if he had any cocaine for sale, and Bush said he had a quarter of a gram left. Bush told Whaley he could come and get it. The call was placed from the Narcotics Office. Agents Bobby Grimes, Craig Taylor, Joey Brackin, and Danny Starks were present. The conversation was taped.

Whaley was wired with a body mike and was given a twenty dollar bill and a five dollar bill. Agent Brackin said that Whaley did not mention the twenty-five dollar figure during his phone conversation with Bush. Whaley testified that twenty-five dollars was what was usually charged for a quarter of a gram.

Whaley arrived at Bush's trailer between 5:30 and 6:00 p.m. while the agents parked down the road and waited. Whaley went into the trailer and talked to Bush a few minutes before buying the quarter gram. The cocaine was in a corner of a plastic bag. Whaley asked Bush about getting some more. Bush made a phone call to someone and then told Whaley that he could not get any more that day. A tape recording was made of the transaction.

Whaley said that he did not make any threats or promises to Bush in order to get him to sell the cocaine. He said that he had not talked to Bush during the period between his arrest on November 28, 1988, and December 4, 1988, when Bush sold him the cocaine. Bush, on the other hand, claimed that Whaley came by his trailer before the 4th asking for some cocaine. Bush told Whaley that he did not fool with cocaine any more but Whaley just kept coming back. On the 4th, Bush gave Whaley the cocaine because he thought by doing so, Whaley would quit bothering him. Bush said that he received no money from Whaley for the cocaine.

Bush presented two witnesses who testified that Whaley had been at Bush's trailer several times prior to the 4th. David Bush, Randy's brother, said that he had seen Whaley at Randy's house five or six times with a week's period during the last week of November and the first week of December. Steve Wright testified that he saw Whaley at Randy's three times during the first week of December when Wright was spending the weekend with Billy Bush, another of Randy's brothers. He said that he remembered it because he had just heard that Whaley had busted some other guy he knew.

After purchasing the cocaine, Whaley met Agent Brackin down the road. Whaley delivered the cocaine to him. Agent Brackin placed the cocaine in a brown envelope to be delivered to the Mississippi Crime Lab. At trial, it was stipulated that the substance was cocaine.

I.

Bush first challenges the verdict on the basis that the overwhelming weight of the evidence proved that he was entrapped. When a challenge is made to the legal sufficiency of the evidence, our standard requires that we consider

all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Benson v. State, 551 So.2d 188, 192-193 (Miss.1989) [quoting McFee v. State, 511 So.2d 130, 133-134 (Miss.1987) ].

Entrapment is defined as "the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him in its commission and prosecuting him for the offense." Phillips v. State, 493 So.2d 350, 354 (Miss.1986) [quoting McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960) ]. If, however, the crime had already existed in the mind of the defendant and the request or inducement merely acted as an opportunity to commit what was in his mind, entrapment is no defense. King v. State, 530 So.2d 1356, 1359 (Miss.1988); Phillips, 493 So.2d at 354.

The defense of entrapment is affirmative and must be proven by the defendant. The burden of proof does not shift to the State to show the predisposition for committing the crime until the defendant has made out a prima facie case of entrapment. Ervin v. State, 431 So.2d 130, 134 (Miss.1983); Turner v. State, 415 So.2d 689, 693 (Miss.1982).

Most of the cases addressing the defense of entrapment deal with the question of whether the jury should have been instructed on entrapment. As we said in Moore v. State, 534 So.2d 557, 559 (Miss.1988), where the jury is instructed on entrapment and "[w]here the jury resolves the point against the defendant, he is generally out of luck on appeal."

The court in this case allowed the jury to be instructed on the defense of entrapment. Although Bush offered two witnesses who said that they had seen Whaley at Bush's trailer several times during the last week of November and the first week of December, Bush does not offer any witnesses who were present when Whaley supposedly talked to Bush. The jury clearly rejected Bush's defense of entrapment and chose to believe, instead, that Bush was predisposed to commit the crime. Viewing the evidence in the light most consistent with the verdict, we affirm on this issue.

II.

During Bush's trial, an assistant attorney general, John Holiman, assisted the District Attorney. Bush contends that it was error for Holiman to participate in the trial because he had not been authorized to do so in writing as required by Miss.Code Ann. Sec. 7-5-53. That section provides that:

The Attorney General shall, when required by the public service or when directed by the Governor, in writing, repair in person, or by any regular or specially designated assistant, to any county or district in the state and assist the district attorney there in the discharge of his duties and in any prosecution against a state officer, and shall have the same right as the district attorney to enter the grand jury room while the grand jury is in session and to perform such services with reference to the work of the grand jury as the district attorney is authorized by law to perform.

The words, "in writing" which immediately follow the phrase "when directed by the Governor," were added in 1988.

The statute allows the attorney general to assist district attorneys under two circumstances, when required by the public service or when directed by the Governor, in writing. Bush argues that the phrase "in writing" means that the attorney general can never assist the district attorney unless he has been authorized to do so in writing. However, common sense suggests that the words "in writing" refer only to a directive by the Governor and not when the attorney general's assistance is required by the public service. This argument is without merit.

III.

During voir dire, the potential jurors were asked by the court, "Do any of you know either counsel from any professional, business, or social relationship?" Juror Greg Belue did not respond to the question. During the hearing on Bush's motion for new trial, Belue testified that in May of 1985, while playing in organized softball, he saw Bush's attorney, Mose Sudduth, during a ballgame. Belue was playing second base during the game, and Sudduth slid into second base and clipped Belue in the leg. After the game, Sudduth came up to Belue to see if he was O.K. Since that time, Belue had not seen Sudduth. As a result of the collision at second base, Belue suffered torn ligaments and cartilage. He had to undergo surgery and wear a cast for twelve to fourteen weeks.

Bush contends that he was denied his right to use a peremptory challenge on Belue because Belue failed to indicate that he knew Sudduth. As support, he cites Odom v. State, 355 So.2d 1381 (Miss.1978).

Odom sets forth the criteria which should be considered by the trial judge when one of the grounds for a motion for a new trial is the fact that a juror failed to respond to a direct and unambiguous question which was asked by defense counsel during voir dire, thus depriving counsel the right to exercise a peremptory challenge intelligently. The court must determine if the question asked the juror was:

(1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be...