Sayre v. State, 57110

• Decision Date: 26 October 1988
• Docket Number: No. 57110,57110
• Parties: Elroy Earl SAYRE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 464

533 So.2d 464

Elroy Earl SAYRE v. STATE of Mississippi.

No. 57110.

Supreme Court of Mississippi.

Oct. 26, 1988.

George S. Shaddock, Johnston & Shaddock, Pascagoula, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Today's appeal is by one convicted of selling marijuana. A single question has been presented: did the Circuit Court err when it allowed the prosecution to produce against the accused evidence regarding the accused's uncharged, unconvicted trafficking in marijuana prior to this offense. Because the defendant had offered an entrapment defense, and thus placed his predisposition in issue, we find no error and affirm.

II.

Elroy Earl Sayre, 50 years old, had been living in Jackson County since 1957. On October 4, 1984, he sold 890 grams of marijuana to David Jackson, an agent for the Mississippi Bureau of Narcotics, for $1,800.

On the afternoon in question, Jackson went to the trailer where Sayre lived shortly after 2:00 p.m. Jackson and Sayre knew one another, and Jackson told Sayre he wanted to purchase two pounds of marijuana. Sayre replied he only had one pound and it would take a while to get the other pound.

The two left the trailer. Sayre got in his car (a grey-black Camaro) and Jackson followed in his car to the "Country Curb" Store. After the cars were parked, Sayre went to a telephone and, a few minutes following a telephone conversation, another car drove up beside Sayre. Jackson saw Sayre hand money to an individual in the other car. Sayre then returned and told Jackson to meet him at his (Sayre's) place on the river in 15 to 20 minutes.

Jackson went to the river trailer (after advising fellow officers by radio of the rendezvous) and met Sayre there. Sayre had some small scales and weighed the marijuana. They discussed making additional purchases, and if so, Sayre would cut the price some.

On cross-examination defense counsel asked Agent Jackson if he knew a man named Paul Slaughter, and Jackson said he did not know him, but he had heard of him. Jackson testified Slaughter was not a confidential informant for the Mississippi Bureau of Narcotics, and as far as he knew did not work for any other state or county agency. Jackson said Slaughter was not involved in any way in the marijuana purchase from Sayre. All of this was prelude to Sayre's defense that he was entrapped.

Sayre testified in his own behalf. He stated that the marijuana he sold to Jackson was furnished him by Slaughter. He further testified that Slaughter was a confidential informant, and that he knew this because when he was arraigned on another charge, Slaughter was named as an agent for the State. He "believed" Slaughter was employed by the State or the police department.

On cross-examination Sayre admitted he had sold marijuana and would deal with Slaughter. Over defense objections, Sayre acknowledged on cross-examination that he and Slaughter had begun dealing in marijuana in August of 1984, and that before that time he had engaged in selling marijuana. Again over objection, Sayre on cross-examination admitted to making sales of marijuana as far back as February, 1984. Sayre testified he could not remember the name of the man with whom he talked at the Country Curb Store. Sayre admitted he had no idea who Slaughter was a confidential informant for but based his belief on the fact the name was on another charge against him.

The defense called Mike Byrd, an employee of the Jackson County Sheriff's Department, who had previously been a policeman in Moss Point. Byrd testified he knew Slaughter, but that he knew nothing of Slaughter having anything to do with the sale to Sayre.

The Circuit Court held that Sayre was entitled to have the issue of entrapment submitted to the jury and granted instructions on the general law of entrapment. The defense requested no instruction, however, on the specific question of whether marijuana sold by Sayre to Jackson had been furnished him by some agent of the State.

After deliberation the jury on July 31, 1985, found Sayre guilty of sale of marijuana, whereupon the Circuit Court imposed a sentence of fifteen (15) years imprisonment. This appeal has followed.

III.

At trial the prosecuting attorney was over defense objection allowed extensive cross-examination of Defendant Sayre regarding his prior marijuana-related criminal activity. Sayre's objection was on relevancy grounds. His sole assignment of error is that the Circuit Court erred in permitting this cross-examination.

Even before the advent of Rule 401, Miss.R.Ev., ¹ evidence was admissible on relevancy grounds in a civil or criminal action only if it had a tendency to make the existence of a fact of consequence more probable or less probable than it would be without the evidence. Collins v. State, 513 So.2d 877, 878 (Miss.1987); Mississippi State Highway Commission v. Dixie Contractors, Inc., 375 So.2d 1202, 1205 (Miss.1970). Determination of what is a fact of consequence is a function of the issues in the case.

When an accused pleads entrapment, his predisposition to commit the crime charged becomes a fact of consequence. Hamilton v. State, 295 So.2d 739, 740 (Miss.1974). Whether he has committed other similar acts in the past is relevant within our evidence law; that is, such evidence has a tendency to show predisposition.

Prior to trial Sayre advised the Court and the prosecution of his entrapment defense. See Rule 4.09, App. A(11)(a)(4), Miss.Unif.Crim.R.Cir.Ct.Prac. Specifically, on July 29, 1985, two days before trial, Sayre filed a statement which, inter alia, stated that

Defendant does raise the defense of entrapment and intends to offer proof of same upon the trial of this case.

At no point prior to the complained of cross-examination had Sayre waived any right to claim so-called subjective entrapment, that is, to prove lack of predisposition to deal in marijuana or that any such predisposition was wholly the product of police procurement. In fact, the case went to the jury with entrapment instructions that required consideration of Sayre's predisposition and state of mind. See Instructions S-4 and D-2.

That Sayre ultimately failed in his entrapment defense hardly affects admissibility. At the time the prosecuting attorney was faced with deciding whether to cross-examine Sayre, the predisposition issue was alive and well. Sayre had not rested his case, and the Circuit Court would have erred had it thereafter denied him the right to offer evidence or lack of predisposition. The Circuit Court correctly held Sayre's prior marijuana-related criminal activity relevant and thus admissible.

The argument we are presented today is that, because Sayre never denied predisposition, the prosecution was precluded from proving it. This logic would empower an accused to pretermit much of the prosecution's proof by an admission or a failure to deny. We have rejected this tactic in cases with much higher stakes. See Evans v. State, 422 So.2d 737, 742-43 (Miss.1982) (capital murder defendant's guilty plea does not preclude the prosecution's proof of details of the crime at sentencing phase).

IV.

In the end, we affirm. We do so because the Circuit Court's action allowing receipt of the evidence of prior marijuana-related activity on the question of predisposition was within the authority afforded by our law of evidence, pre-January 1, 1988, variety.

AFFIRMED.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ANDERSON and ZUCCARO, JJ., concur.

GRIFFIN, J., concurs by separate written opinion.

HAWKINS, P.J., and SULLIVAN, J., dissent.

GRIFFIN, Justice, concurring:

I join Justice Robertson's opinion, fully agreeing that cross-examination of Sayre concerning his prior activities as a marijuana merchant was admissible. He had given notice that he intended to plead entrapment. This made his prior activities relevant.

I concur in Justice Hawkins' affirmance, but cannot agree that we have "objective" entrapment. One is either entrapped or he is not and to plead the same brings his life's activities into question.

Apparently, as I interpret Justice Hawkins' opinion, objective entrapment is a total defense. This would be contrary to my dissent in Kemp v. State, 518 So.2d 656 (Miss.1988). Justice Robertson apparently recognizes this when he quotes Judge Holmes in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), as follows:

... [F]or my part I think it is a less evil that some criminal should escape than that the government should play an ignoble part.

277 U.S. at 470, 48 S.Ct. at 575.

So, therefore, insofar as Justice Robertson's opinion may approve the majority opinion in Kemp as condemning inverse entrapment, I disagree. Inverse entrapment is not, per se, the playing of an ignoble part by the government.

HAWKINS, Presiding Justice, dissenting:

The usual entrapment case, as everyone knows, is an affirmative defense in which the accused, while freely admitting he committed the criminal act with which he is charged, attempts to persuade the jury that he is a nice fellow and had no intent whatever to commit the offense until badgered and hounded into doing so by persistent law enforcement officers. It then becomes a jury question what was in the defendant's head before the harrying by law enforcement officers. Was he a law-abiding citizen who neither engaged nor intended to engage in this sort of criminal activity, or was he not?

The record in this case was initially assigned to me. Upon doing research it became clear that our Court has created, beyond the hornbook type of entrapment urged in Federal and many other state courts, a special entrapment defense, and that some service would be rendered by distinctly clarifying and explaining our Court's holding. The evolution of our special type of entrapment in which the defendant would be entitled to an acquittal ...