Henderson v. State

• Decision Date: 05 October 1978
• Citation: 576 S.W.2d 10
• Parties: James HENDERSON, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 10

576 S.W.2d 10

James HENDERSON, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Oct. 5, 1978.

Certiorari Denied by Supreme Court Dec. 8, 1978.

Edward Witt Chandler, Seattle, Wash., for appellant.

William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, A. H. Schoonover and Theodore Neumann, Asst. Dist. Attys. Gen., Trenton, for appellee.

OPINION

DWYER, Judge.

The appellant appeals his conviction for possessing L.S.D., a Schedule I drug, T.C.A. 52-1413(c)(9), with the intent to sell, with resulting punishment of confinement for not less than five nor more than seven years. This is appellant's second conviction for committing this offense, his first conviction having been reversed and remanded for a new trial by our Supreme Court in State v. Henderson, 554 S.W.2d 117 (Tenn.1977).

The appellant's assignments of error are these: (1) the trial court erred in refusing appellant's special request regarding entrapment; (2) there was no evidence in the present case to indicate that the substance sold by the appellant to the undercover agent was the Schedule I substance, lysergic acid diethylamide; and (3) the harsher jury imposed sentence upon retrial is constitutionally impermissible.

We will summarize the evidence as found from our review of this record. That uncontroverted evidence concisely reflects from the testimony of the State's witness, Ms. Pierce, that the appellant on November 18, 1974, was driving his automobile on Highway 79. At that time another automobile pulled in back of his and flashed its lights causing appellant to pull over and off the highway in front of the Silver Hook parking lot in Henry County. The driver of the automobile that caused appellant to pull off the road was one Billy Olds. In the car with Billy Olds was a Ms. Pierce, undercover agent employed by the Sheriff of Henry County to ferret out drug violators in that county. Olds at that time was told by the appellant he had some marijuana and wanted to know if Olds wished to buy any. Olds responded he did not have any money; that Ms. Pierce, his companion, might want to buy some. The two vehicles them moved to Uncle Lee's parking lot, located on Highway 79. At that time the appellant handed Ms. Pierce a bag of marijuana and Ms. Pierce paid the appellant $20. The appellant also advised Ms. Pierce he had some "blond acid" for sale at $2.50 a hit. Ms Pierce gave the appellant $5 for two hits of L.S.D. The contraband was turned in later by Ms. Pierce to the Sheriff of Henry County and this was forwarded to the toxicology laboratory at the University of Tennessee in Memphis where it was analyzed and the evidence showed that it was L.S.D. or lysergic acid diethylamide.

The appellant did not testify and offered no proof.

In appellant's first assignment of error he urges that the trial court erred in not charging some seventeen variations of instructions regarding the defense of entrapment. We think with the uncontradicted evidence as narrated reflecting that the agent simply asked the appellant if he had any drugs for sale, and being told by the appellant that he had some "blond acid" and sold her two hits for $2.50 apiece, there is not one scintilla of evidence...