Kemp v. State
| Decision Date | 06 January 1988 |
| Docket Number | No. 57141,57141 |
| Citation | 518 So.2d 656 |
| Parties | Tony KEMP, Ray S. Collins, Houston Collins and Jeffrey J. Curtis v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Carroll Rhodes, Hazlehurst, for appellants.
Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., and Kay B. Cobb, Jackson, for appellee.
EN BANC.
The appellants were convicted by the Circuit Court of Copiah County, Mississippi, of conspiracy to possess more than one (1) kilogram of marijuana with intent to distribute. Each appellant was fined $20,000.00 and sentenced to a term of six (6) years in the custody of the Mississippi Department of Corrections. Each appeals assigning as one of their errors that the trial court should have granted their motion for a directed verdict and for a peremptory instruction at the end of the State's case.
We reverse and discharge the appellants on the authority of Barnes v. State, 493 So.2d 313 (Miss.1986).
The facts in this case present the classic reverse sting operation carried on by the Mississippi Bureau of Narcotics in June of 1983 against Barnes. The same agents using the same vehicles carried out the exact same reverse sting in May of 1983 against the appellants here.
We repeat for the edification of narcotics officers throughout the State of Mississippi that the rule in Mississippi as laid out in Barnes, supra, is that a reverse sale or a reverse undercover operation as termed by the officers in that case and in this case embraces all the elements and requirements for the definition of entrapment. Entrapment in this case was established as a matter of law by the State's own proof and the defense is valid against a charge of conspiracy to possess marijuana. See Barnes v. State, 493 So.2d 313, 316 (Miss.1986).
REVERSED AND APPELLANTS DISCHARGED.
With deference, I respectfully dissent.
On May 16, 1983, Houston Collins spoke to an undercover agent of the Mississippi Bureau of Narcotics (MBN) at the C & T Liquor Store in Hazlehurst. According to Collins, the agent asked him if he knew anyone who would be interested in the purchase of two forty-pound bales of marijuana. Collins answered, When the agent said that he had to sell the whole thing, Collins stated, "Maybe I can tell you something tomorrow." The agent then asked, "Well, do you think you can come up with any money?" Collins responded, "I don't know; I'll have to talk to my partner," adding, "I believe I can come up with about $8,000 for forty pounds." This account is consistent with the agent's testimony that Collins agreed to make a purchase during the first fifteen seconds of their conversation.
On May 18, 1983, Collins, accompanied by Tony Kemp, and followed in another car by Jeffrey Curtis and Ray Collins, Houston's brother, met MBN agents at the T.G. & Y. parking lot in Hazlehurst. According to the agents, Kemp cut open a bale of marijuana, stored in an unmarked MBN van, commenting on the substance's quality. Upon request, Kemp then showed the agents a green bank bag, which contained $10,000, the agreed on price for one bale.
MBN agents asked to make the exchange at the Copiah Creek Water Park on Highway 28, a pre-arranged location where other law enforcement officers had hidden in anticipation of the transaction. Upon their arrival, Kemp and Curtis weighed the bale, stating that the marijuana was not Red Bud, a variety of the plant, but definitely was Columbian. As Houston Collins gave the agents the green bank bag, Kemp lifted the bale and Curtis opened the trunk; the officers, identifying themselves, then arrested the four appellants.
At trial, Kemp, Curtis and Ray Collins denied any participation in the crime, each claiming that he was unaware of the bale's contents. Yet, on cross-examination, Houston Collins stated,
In McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960), this Court defined entrapment as the See also, Howard v. State, 507 So.2d 58, 61 (Miss.1987), Tribbett v. State, 394 So.2d 878, 881 (Miss.1981), Jones v. State, 285 So.2d 152, 155 (Miss.1973). Similarly, Wharton's Criminal Law, Sec. 52 (4th ed. 1978) reads in part: "When a law enforcement officer or his agent induces a normally law-abiding person to commit a crime, so that evidence may be obtained for his prosecution, and, but for the inducement, the crime would not have been committed, the defense of entrapment is made out."
Law enforcement officers though do not entrap a defendant, when they merely provide an opportunity to violate the law. McCormick v. State, 279 So.2d 596, 597 (Miss.1973), Hogan v. State, 233 So.2d 786, 788 (Miss.1970), McLendon v. State, 247 Miss. 510, 512, 153 So.2d 711, 712 (1963). Rather, for entrapment, criminal intent simply must not originate in the mind of the accused, but elsewhere; or stated otherwise, the accused must not have been predisposed to commit the crime. Pace v. State, 407 So.2d 530, 532 (Miss.1981). See also, Ervin v. State, 431 So.2d 130, 134 (Miss.1983), Turner v. State, 415 So.2d 689, 693 (Miss.1982), Laughter v. State, 235 So.2d 468, 471 (Miss.1970), Miller v. State, 234 So.2d 297, 301 (Miss.1970). Indeed, where the intent to "commit the crime already existed in the mind of the accused, so that the indictment merely served to give him an opportunity to commit that to which he was already disposed, the entrapment defense does not lie." Phillips v. State, 493 So.2d 350, 354 (Miss.1986).
In the case at issue, the majority relies upon Barnes v. State, 493 So.2d 313 (Miss.1986), in support of its decision to reverse the appellants' convictions. The record in Barnes reflects that an informant contacted Oscar Bell, asking if he knew anyone, including Bell himself, who would be interested in the purchase of four bales of marijuana. The informant, acting on behalf of the MBN, had previously purchased Valium through Bell. According to Bell, he declined to purchase the marijuana. Yet, when the informant called a second time, Bell stated that he had mentioned the marijuana to an individual, and was awaiting a response. Bell had also told David Barnes. The next day, Barnes went to Bell's house, wanting to "look into it." Over the telephone, the informant and Barnes agreed to meet. At their first meeting, Barnes, accompanied by Bell and a third man, Michael Williams, inspected the marijuana; Williams told Barnes and Bell that the marijuana was of good quality. Later in the evening, they returned with a green bank bag, containing two bundles of money. Shortly thereafter, the police arrested the three, following an automobile chase. To say the least, Barnes is distinguishable from the case here in that delivery was never made. Barnes became frightened and left.
On these facts, the Court ruled that a " 'reverse sale' or 'reverse undercover operation' ... embraces the requirements and definition for 'entrapment'," especially noting "overwhelming evidence of the efforts at entrapment, including ownership of the marijuana ...." Id. at 316. Significantly, the Court cited no authority for the proposition that a reverse sale constituted entrapment as a matter of law.
Instead, the Court cited a series of cases involving narcotics supplied to the defendant by an informant or drug agent and subsequently sold or given by the defendant to a drug agent. These cases are wholly distinguishable from the facts at issue. For example, in Jones, 285 So.2d at 153, an informant asked the defendant to sell marijuana on the informant's behalf, since the informant was supposedly indebted to the purchaser, an undercover MBN agent, and feared that he would not receive payment. Properly, the Court reversed the conviction. In Torrence v. State, 380 So.2d 248, 249 (Miss.1980), the Court faced a similar factual situation and properly reversed the conviction.
Likewise, in Sylar v. State, 340 So.2d 10, 11 (Miss.1976), an undercover MBN agent asked the defendant to deliver a package of marijuana to another undercover MBN agent. When the defendant finally consented, he promptly delivered the proceeds paid by the supposed buyer to the supposed seller. Properly, the Court reversed the conviction.
In Epps v. State, 417 So.2d 543, 544 (Miss.1982), an informant asked the defendant to keep a quantity of cocaine until the informant's girlfriend came to retrieve it. The girlfriend and an undercover police officer later returned, and the defendant gave them the cocaine. Properly, the Court reversed the conviction.
In Daniels v. State, 422 So.2d 289, 291 (Miss.1982), an informant gave the defendant a bag of assorted pills, "that you could not be arrested for," as security for a two hundred dollar loan. When the informant repaid the defendant, the defendant returned the pills to the informant. Properly, the Court reversed the conviction.
Finally, in Tribbett, 394 So.2d at 879, an informant telephoned the defendant to arrange the purchase of marijuana. When the defendant arrived, an undercover MBN agent purchased nine bags of the substance. Properly, the Court upheld the conviction.
These cases bear no similarity to the factual scenario either in Barnes or in the case at issue. Most certainly, these cases do not outlaw a reverse sale of narcotics to individuals, who otherwise display a predisposition to commit the crime.
In Barnes, 493 So.2d at 315, quoting Tribbett, 394 So.2d at 882, the Court stated,
The usual entrapment case which arises under Mississippi law involves a confidential informant or...
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