Morgan v. State
| Decision Date | 12 June 1997 |
| Docket Number | No. 93-KA-00225-SCT,93-KA-00225-SCT |
| Citation | 703 So.2d 832 |
| Parties | Theron Ray MORGAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Alfred L. Felder, McComb, for appellant.
Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and PITTMAN and SMITH, JJ.
SMITH, Justice, for the Court:
Originally, this opinion was designated not for publication. Upon the Court's own motion the original opinion is withdrawn and this one substituted therefor.
Theron Ray Morgan was arrested on August 20, 1991, in a reverse sting operation carried out by the Mississippi Bureau of Narcotics. Morgan was arrested at his residence after his co-conspirator and an undercover agent delivered ten pounds of marijuana to Morgan as a result of a pre-arranged sale. Morgan was indicted for conspiracy to possess more than one kilogram of marijuana and for unlawful possession of more than one kilogram of marijuana. Following a jury trial, Morgan was convicted and sentenced to twenty years in the custody of the Department of Corrections and assessed a fine in the amount of $50,000.
Morgan now appeals his conviction from the Circuit Court of Pike County to this Court arguing that the trial court erroneously overruled his motion for a directed verdict and denied his request for an jury instruction on the entrapment defense. Morgan also argues that two instances of prosecutorial misconduct warrant a new trial.
STATEMENT OF FACTS
During August of 1991, the Mississippi Bureau of Narcotics (hereinafter "MBN") learned from a confidential informant that Luke Reid was seeking to purchase forty pounds of marijuana. Agents obtained marijuana from the MBN vault in Jackson, Mississippi to use in a reverse sale with Reid. MBN Agent Ronnie Frazier arranged a meeting between Reid and undercover MBN Agent Scott Biggers as a result of which Reid agreed to pay $40,000 for forty pounds of marijuana to be delivered by Biggers.
Through subsequent telephone conversations, Reid and Biggers agreed to meet near Bude, Mississippi under the Homochitto River Bridge. At approximately 2:40 p.m., Reid arrived at the bridge to meet Biggers. Biggers gave Reid 40 pounds of marijuana in exchange for $31,000 in cash and a check for $9,000 written by Jesse Andrews. After receiving the marijuana, Reid was arrested by MBN agents, agreed to cooperate and informed agents that two additional investors were involved in the deal. Jesse Andrews was arrested while he awaited delivery of his portion of the marijuana.
Reid also agreed to lead agents to Paul Pittman, the other investor in the drug transaction who was awaiting delivery of ten pounds of marijuana. Reid contacted Pittman and arranged a meeting to deliver the marijuana. Agent Biggers accompanied Reid to the Topisaw River Bridge in Pike County. Reid wore a body transmitter to allow surveillance agents to monitor the transaction. Pittman was at the bridge when Biggers and Reid arrived and Pittman, like Reid, was arrested after receiving the marijuana. Agent Biggers and Reid were also arrested to confuse Pittman.
During the transaction between Reid and Pittman, Reid told Pittman to "[t]ell your man Ray that a pound of that is yours." Agent Frazier testified that the name "Ray" was used three times, but that at that time agents did not know who "Ray" was. Pittman maintained that he was picking up the marijuana for someone else and agreed to cooperate with the agents and deliver the marijuana to "Ray." MBN Agent Kenny Cotton accompanied Pittman in making the delivery. After arriving at "Ray's" house, officers realized that the investor was Ray Morgan. Cotton and Pittman brought along an extra brick of marijuana to sell to Morgan in order to explain Agent Cotton's presence.
On August 20, 1991, Agent Cotton and Pittman drove in Pittman's car to Morgan's home where Morgan was waiting outside. Agent Cotton was equipped with a mini-cassette recorder. A transcript of the drug transaction was introduced into evidence at trial and revealed the following:
Morgan: I got a bunch of friends around back that don't need to know so run on in.
Cotton: Hey, check it out.
Morgan: Alright.
unknown: You got it.
Cotton: Okay, that's going to be, uh, what we deal for?
Morgan: What?
Cotton: Is that going to be what we're dealing for?
Morgan: What are you talking about?
Cotton: You know what I'm saying. Everything is straight, man, I'm just checking with you, you said you got people here.
Morgan: Yeah, well they cool, it's just they don't need to know my business.
Pittman: mumbling.
Morgan: What's wrong with your eye?
Pittman: mumbling.
Morgan: I hear you. Where's the scales at?
* * * * * *
Morgan: How much was we talking about, we must not have some kind of understanding here. I thought we were talking about ten, that's ten.
Cotton: That's why I'm here, right. What I'm saying, you want to do a better deal on this other.
Morgan: I don't know, looks pretty.
Cotton: It is, it's some good * * * man.
Morgan: Where's the cash?
Cotton: We trade cash for the dope right?
Morgan: Talk to me Moke.
Pittman: aka "Moke": I don't know, cash for the dope.
Morgan: Yeah, I know, who's got the cash.
Cotton: Well, my guy got the cash.
Morgan: Okay, well, that's what I'm asking.
* * * * * *
Morgan: I mean if I'm going to buy this much I need to at least see it.
Cotton: Yeah. Go ahead, cut it.
Morgan: You got a paper?
Cotton: Naw, I ain't got a paper.
* * * * * *
Cotton: The deal here is that I need to get rid of and I thought maybe you could help me on this. You provided what? nine-five.
Morgan: Yeah.
Cotton: Nine thousand five hundred.
Morgan: Nine thousand five hundred.
Cotton: For ten pounds.
Morgan: Right.
In addition to the tape, Pittman, Morgan, and Agent Cotton testified as to the events surrounding the transaction. Pittman testified that he was at Ray's house when they first discussed the deal with Reid. Pittman had no money, however, he knew that Morgan did. Morgan placed an order for ten pounds which according to Reid would cost $9, 500. On August 19, 1991, Morgan and Pittman went to the bank where bank records reveal Morgan withdrew $8,000. Pittman testified that Morgan gave him $9,500 which he later gave to Reid.
Morgan consistently maintained that he gave Pittman $8,000 to purchase a car, not marijuana. Pittman, however, denied that Morgan purchased his car. Rather, Pittman testified that after his arrest he asked Morgan for money to retain a lawyer. Pittman testified that Morgan gave him $1,000 in exchange for which Morgan required Pittman to surrender his car as collateral. On cross-examination Morgan conceded that the title to the automobile which he allegedly purchased was never transferred into his name.
At trial, Morgan attempted to raise an entrapment defense and claimed that the State could not show evidence of his predisposition to distribute or purchase marijuana. Morgan also argued that State involvement in the reverse sale was excessive. Morgan relied heavily on a pre-trial statement made by Pittman, memorialized in writing and on videotape, which completely exonerated Morgan. This statement was arranged by an investigator hired by Morgan's defense attorney, Alfred Felder, and took place at Morgan's home. Pittman testified that this statement was taken during a time when he believed that Morgan's attorney would also handle his case. After the statement was secured, Felder referred Pittman to another attorney, John Price. However, at trial Pittman testified that the statement was not true.
Following the trial, Morgan was convicted of conspiracy to possess more than one kilogram of marijuana and unlawful possession of more than one kilogram of marijuana. Morgan was sentenced to twenty years in the custody of the Mississippi Department of Corrections and assessed a fine in the amount of $50,000. Aggrieved, Morgan appeals to this Court.
DISCUSSION OF LAW
I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT.
Morgan argues that the trial court erroneously denied his motion for a directed verdict at the end of the State's case because the he established entrapment as a matter of law. Morgan argues that the conduct of law enforcement officials in carrying out the reverse sale operation was sufficient to establish entrapment as a matter of law. Morgan principally relies on this Court's decisions in Barnes v. State, 493 So.2d 313 (Miss.1986), and Kemp v. State, 518 So.2d 625 (Miss.1987).
In Hopson v. State, 625 So.2d 395 (Miss.1993), this Court set forth the standard of review for directed verdict motions as follows:
This Court has stated that all evidence, including that which does not support the State's case, must be considered in the light most favorable to the State as verdict winner. Burge v. State, 472 So.2d 392, 393 (Miss.1985). Furthermore, the State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). Heidel v. State, 587 So.2d 835, 838 (Miss.1991).
This Court recently reiterated Mississippi law on entrapment in Walls v. State, 672 So.2d 1227, 1230 (Miss.1996) as follows:
Entrapment has been 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 for the offense." The defense of entrapment is affirmative and must be proved by the defendant. If the defendant already possesses the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Before a defendant can raise the defense of entrapment, he or she is required to show evidence of government inducement to commit the criminal act and a...
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