Pace v. State

Citation407 So.2d 530
Decision Date25 November 1981
Docket NumberNo. 52805,52805
PartiesMarlon Joe PACE and Glendle Ray Sones v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Fielding L. Wright, James H. Heidelberg, Pascagoula, William P. Wessler, Donald F. Rose, Gulfport, for appellants.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.

SUGG, Justice, for the Court:

In the Circuit Court of Harrison County First Judicial District, Marlon Joe Pace and Glendle Ray Sones were convicted of burglary. Pace was sentenced to seven years imprisonment, the maximum term for burglary, under the habitual criminal statute, section 99-19-81 Mississippi Code Annotated (Supp.1981). Sones was sentenced to life imprisonment under the habitual criminal statute, section 99-19-83 Mississippi Code Annotated (Supp.1981). Both Sones and Pace appeal, assigning several errors which merit discussion.

After receiving a call from a confidential informant that the J. C. Rich Food Store in Gulfport was going to be burglarized, officers from the Gulfport Police Department and the Mississippi Highway Patrol made a stake-out of the business. With permission of the store owner, two officers were locked inside the store on the evening of Saturday, November 17, 1979. Nothing unusual occurred that night. The stake-out was repeated on the next night, November 18, 1979.

At approximately 8:15 p. m. the officers inside the store were notified by officers outside the building that two men were getting out of a Ford Pinto car. The officers then heard beating noises at the rear of the store. After the noise stopped, two men came into the store.

The officers identified themselves as police. At that point Sones said, "Mickey, its me, Glenn, don't shoot me, I don't have a gun." The men dropped a brace and bit and screwdriver, were placed under arrest, and handcuffed. Officer Mickey Ladner testified that, as they were leading Sones and Pace out of the building, Sones stated, "Mickey, we didn't even need tools in here, we had all the tools we needed in here." A matchbook with the telephone number of a waffle house restaurant written on it was found in the pocket of Sones. A police unit went to the waffle house and observed two women come out of the restaurant and get into the Pinto, drive past the grocery store, and stop about a block away, where it was intercepted by the police. One of the women in the car was recognized as a companion of Pace and Sones; the other identified herself as Sones' sister.

Sones testified at trial that he and Pace were approached about the burglary by a man named Jack Smith, whom they met for the first time about a week before the burglary. Sones testified that he and Pace initially refused any involvement in the burglary, but agreed to do it at the fourth meeting with Smith. Sones testified that Smith told them what was in the store and brought them tools to use in the burglary. According to Sones, Smith was to get a third of anything that they took. Sones testified that no one else knew about the burglary except Smith, Sones, and Pace.

Sones and Pace first assign as error the trial court's failure to acquit them of the burglary charge. The appellants contend that because they raised the affirmative defense of entrapment which the state did not rebut, they were entitled to an acquittal. We are of the opinion that Pace did not raise the entrapment defense because he never admitted participation in the burglary. Pace pled not guilty to the burglary charge but did not testify at trial. Sones testified and admitted his involvement in the burglary. We have held that when a defendant denies the act with which he is charged, he cannot claim that he was entrapped. McCormick v. State, 279 So.2d 596 (Miss.1973). Thus, the entrapment defense was not available for appellant Pace.

Sones, however, did admit his participation in the burglary and argued entrapment as a defense. We have held that, once the defense of entrapment is established by the evidence, the prosecution has the burden of proof on that issue. Tribbett v. State, 394 So.2d 878 (Miss.1981). We are of the opinion that the testimony of Sones was not sufficient to shift to the state the burden of proof on the entrapment issue.

Sones' entrapment defense rests on the assumption that Jack Smith, the man whom he alleged persuaded him to commit the burglary, was the confidential informant. However, no evidence reveals such a connection. The basis of the assumption lies in Sones' testimony that no one knew about the planned burglary except for himself, Pace and Smith. However, Sones could speak for himself only. It is possible that either Smith or Pace told some others about the planned burglary. Further it seems unlikely that the women who drove Sones and Pace to the grocery on the night of the burglary were unaware of the plans. We are of the opinion that the evidence presented by Sones simply did not show that Sones and Pace were entrapped by an officer of the state.

Another aspect of the entrapment defense was not sufficiently proven. For entrapment to be successfully raised, the defendant must not have been predisposed to commit the crime; the criminal intent must not have originated in the mind of the accused. Tribbett v. State, 394 So.2d 878 (Miss.1981). The government's first soliciting or merely providing an opportunity for commission of a crime is insufficient to establish entrapment. Id. In the present case the testimony of Sones reveals that Smith merely solicited Sones and Pace to commit a crime. The testimony indicated that it took only a suggestion, with little persuasion and no coercion, to interest Sones and Pace in the burglary. The lengthy criminal record and the extensive preparation that Sones and Pace made for the burglary indicate a predisposition to commit the crime sufficient to destroy a defense of entrapment even had Smith been shown to be the state's confidential informant.

Sones and Pace next complain of the trial court's refusal to allow them to question the state's witnesses about the confidential informant. The trial judge refused to allow any question which would tend to "either tie down the identity of the informant or the location of the informant."

There is no absolute rule requiring disclosure of an informer's identity. Recognition of the public interest and effective law enforcement has led to a privilege, although not absolute, of the prosecution to refuse disclosure of the identity of a confidential informer. Rovario v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1967). In Rovario, the United States Supreme Court stated:

Where the disclosure of the informer's identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. (353 U.S. at 60, 61, 77 S.Ct. at 628, 1 L.Ed.2d at 645).

In applying this principle, we have stated:

The proper rule regarding the circumstances under which the identity of the informer should be disclosed was stated in Young v. State, 245 So.2d 26 (Miss.1971):

Ordinarily, disclosure of the identity of an informer, who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court. Strode v. State, 231 So.2d 779 (Miss.1970). On the other hand, where the informer is an actual participant in the alleged crime, the accused is entitled to know who he is. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). ... (245 So.2d at 27).

(Mills v. State, 304 So.2d 651, 654 (Miss.1974)).

In our opinion, under the facts of the present case, disclosure of the informant's identity was not required. No evidence established that Smith was the informant. No evidence indicated that the informant was a material witness to the guilt or the innocence of Sones and Pace. Additionally, there was no evidence that the informant was an actual participant in the crime, nor any evidence that Jack Smith was present when the burglary was committed.

During the trial court's consideration of the objections to questions about the informant's identity, the prosecuting attorney stated unequivocally that there was no information available to the district attorney's office, the Gulfport Police Department, the Bureau of Narcotics, or the state investigators that would tend to show any entrapment. We are of the opinion that the trial judge properly exercised his discretion in denying Pace and Sones the right to question the state's witness concerning the identity of the informant.

In the next assignment of error, Sones and Pace contend that they were improperly adjudged to be habitual criminals because their prior convictions were not proved. B. C. Ruth, who was custodian of the records of Mississippi State Penitentiary at the time Sones and Pace were setting time on previous convictions, identified the original prison files of both Sones and Pace. He identified both Sones and Pace at the sentencing hearing as the persons serving the terms reflected in the files. 1 The original commitment papers issued by the circuit clerks of the counties where Sones and Pace were sentenced were introduced in evidence. The photographs from the files and summary sheets which listed the offenses, the sentences, and the dates the prisoners were received and discharged from the Penitentiary were introduced in evidence. The originals of the...

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  • Smith v. State
    • United States
    • Mississippi Supreme Court
    • December 10, 1998
    ...876, 879 (Miss. 1982), abstracts of court records duly certified by a justice court judge were held to be sufficient. In Pace v. State, 407 So.2d 530 (Miss.1981) original commitment papers were held to be sufficient to show a prior Miss.Code Ann. § 13-1-77 (1972) allows admission of public ......
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    ...to the charges without knowledge of the informant's identity. The law pertaining to this question is well settled. In Pace v. State, 407 So.2d 530, 533 (Miss.1981), the Court There is no absolute rule requiring disclosure of an informer's identity. Recognition of the public interest and eff......
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    ...876, 879 (Miss.1982), abstracts of court records duly certified by a justice court judge were held to be sufficient. In Pace v. State, 407 So.2d 530 (Miss.1981) original commitment papers were held to be sufficient to show a prior conviction. Miss.Code Ann. Sec. 13-1-77 (1972) allows admiss......
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