Howard v. State

• Decision Date: 08 April 1987
• Docket Number: No. 56179,56179
• Citation: 507 So.2d 58
• Parties: Kenneth HOWARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 58

507 So.2d 58

Kenneth HOWARD v. STATE of Mississippi.

No. 56179.

Supreme Court of Mississippi.

April 8, 1987.

Rehearing Denied June 3, 1987.

Johnnie E. Walls, Jr., Walls & Irving, Greenville, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

HAWKINS, Presiding Justice, for the Court:

This is a criminal appeal from Hinds County wherein Kenneth Howard was convicted of bribery and sentenced to ten (10) years in Parchman. Howard was accused of offering a bribe to Officer Bob Campbell in return for Campbell's assistance in dropping pending charges against Howard. Howard was arrested shortly after he placed $10,000 in a location for Campbell to pick up. The alleged bribery and arrest took place on January 27, 1984.

Prior to the trial, the State sought and received a Motion in Limine excluding a taped conversation secretly recorded by the defendant on March 12, 1984, during a "stop and frisk." The jury found Howard guilty as charged.

On appeal, Howard asserts that the trial judge, in not allowing his tape to be played, deprived him of effectively showing his defense of entrapment. Howard also contends that the jury instructions were insufficient and the verdict of the jury was contrary to the overwhelming weight of the evidence. For the reasons set forth, we affirm.

FACTS

On January 3, 1984, Howard, his wife, Ronald Lee, Donald Lee and several other unknown persons were indicted on charges of conspiracy to possess marijuana with the intent to distribute same.

On January 27, 1984, at approximately 8:00 a.m., Officer Campbell and Officer Ricky Moon were having coffee at a restaurant and Campbell received a call from headquarters over Moon's walkie talkie. Campbell placed a call to the police station and talked to Officer Steve Rochester. Sgt. Rochester related that Kenny Howard was at the station and wanted to speak with him. Officer Campbell spoke with Howard, who requested to see him, and a meeting was arranged for 1:00 p.m. that day in Campbell's office. According to Howard, he came to the station at 8:00 a.m. because he had received word that Officer Campbell wanted to see him.

Campbell arrived at his office that afternoon where Howard was waiting for him in the hallway. Campbell testified that he went into the office, engaged in some conversation, and Howard stated he was there to talk about the case pending against him. Campbell indicated that if Howard informed on other drug dealers, he might receive some consideration. According to Campbell, Howard then began to talk about getting his case taken care of, and indicated that he would pay money to get the charge dismissed.

Campbell testified that Howard indicated that he would give him $10,000 that day (January 27) and on the following day a $20,000 payment would be given after his charges were dismissed. Another $30,000 payment would be made six months from that date, and from then on 50% of Howard's drug business would be paid to Campbell if Campbell could insure that the narcotics officers would not bother him and let him continue to operate. Howard told Campbell it would take him approximately 30 minutes to get the money, and Campbell agreed to accept Howard's offer.

After Howard left to get the money, Officer Campbell immediately alerted Officer Moon and Chief Black as to Howard's offer. When Howard returned with the money, officer Campbell was wearing a bugging device, with Officer Moon listening to the conversation in an adjoining office. Howard advised Campbell that he wanted a friend of his released from Parchman, and he wanted three traffic tickets taken care of, giving Campbell the tickets. The two men then discussed where the delivery of the money would take place. Howard told Campbell he would leave it under the wheel of his vehicle, and that when Campbell approached the car he would drive away and leave the money lying on the street. Campbell agreed to this, and the delivery took place as planned. Shortly thereafter, Campbell recovered a paper bag with $10,000 in it and Howard was apprehended. The delivery of the money was observed by Officer Moon and Chief Black.

Howard testified on his behalf that he went to the police station at 1:00 p.m. like Campbell had ordered him. Howard testified he told Campbell he was charged with a crime he had nothing to do with, and asked Campbell what did he want from him. According to Howard, Officer Campbell then decided that if Howard wanted the charges dropped, he would have to give him some money. Howard stated Campbell wanted $30,000, and to bring him $10,000 the next day. Howard admitted that he gave Campbell $10,000, but insisted that he was merely following Campbell's instructions.

On March 12, 1984, Howard and his friends were standing outside the Crystal Palace Pool Hall, a business formerly owned by Howard and then operated by his brother-in-law. In response to a complaint, police officers confronted the group and told them to get off the street. Officer Campbell conducted a "frisk" on several group members and warned Howard to stay off the street or he would be in trouble. During this time Howard surreptitiously recorded the confrontation by way of a micro-cassette in his jacket pocket.

At trial, Howard asserted the defense of entrapment, stating that as a result of police harassment, coercion, and police overzealousness, he was induced to pay Officer Campbell the $10,000. Howard now seeks to have the tape admitted as evidence of police harassment. The State, however, successfully had the tape excluded because the incidents on the tape took place one and a half months after the bribery. The trial judge excluded the tape on the grounds that it was too remote.

At the conclusion of the trial, Howard was found guilty and sentenced to 10 years in prison and fined $1,000. On appeal, Howard asserts the tape should not have been excluded, the jury instructions were insufficient to establish his defense of entrapment and the verdict was against the overwhelming weight of the evidence.

LAW

Before analyzing Howard's assignments of error, it may be helpful to review the Mississippi law concerning bribery and entrapment.

Howard was charged under MCA Sec. 97-11-11 (1972) which provides, in pertinent part:

"Every person who shall ... offer to any officer ... any money ... with intent to influence his ... action, or judgment on any question, matter, cause or proceeding which may be then pending ... shall, on conviction, be imprisoned in the penitentiary not more than ten years, or fined not more than $1,000, or both."

There appear to be only two cases where a defendant has been convicted under this statute for offering a bribe to a public officer. In the seminal decision of McLemore v. State, 241 Miss. 664, 125 So.2d 86 (1960), McLemore was convicted of offering a bribe to a district attorney, in return for which the district attorney would not introduce evidence in an arson case pending against the defendant's friend. This Court enumerated the elements of the offense: (1) offer of bribe; (2) to public officer; (3) with the intent to influence his action or judgment; (4) on any question, matter, cause or proceeding which may be then or thereafter pending subject to his action or judgment. 241 Miss. at 672, 125 So.2d 86.

The McLemore court stated further:

The condemned offense is the offer to bribe, not completed bribery. There need not be a mutual intent on the part of both the giver and the offeree or acceptor of the bribe. It is the offering of the bribe that constitutes the substantive crime under the statute. It is immaterial whether an attempt or offer to bribe is successful. Nor is any actual tender of the bribe necessary to perfect the offense.

241 Miss. at 673, 125 So.2d 86.

In McLemore, the defendant made a motion for directed verdict based upon the defense of entrapment. The trial overruled the motion; and this Court affirmed, stating:

The word "entrapment," as a defense, has come to mean 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. However, defendant cannot rely on the fact that an opportunity was intentionally given him to commit the crime which originated in the mind of the accused. The fact that an opportunity is furnished constitutes no defense.

241 Miss. at 675, 125 So.2d 86.

See also Phillips v. State, 493 So.2d 350, 354 (Miss.1986); Miller v. State, 234 So.2d 297, 301 (Miss.1970); Averitt v. State, 246 Miss. 49, 61, 149 So.2d 320 (1963).

Regarding entrapment as a defense to the crime of bribery, the McLemore court stated:

There is a very clear distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception. The state's evidence amply supports the conclusion that the criminal intent to make the offer to bribe originated in the mind of defendant, and Strickland simply furnished the opportunity and the means for McLemore to consumate that purpose.

241 Miss. at 675-76, 125 So.2d 86.

Since practically all of the "entrapment" cases in Mississippi deal with the sale of narcotics, a review of outside sources is necessary to understand the defense of entrapment in bribery cases. 69 A.L.R.2d 1397, Entrapment--Bribery or Offer to Bribe, provides at p. 1406:

For the defense of entrapment to be available the intent to commit the offense must have been lodged in the defendant by the government agent for...