Tanner v. State

• Decision Date: 22 August 1990
• Docket Number: No. 89-KA-0238,89-KA-0238
• Citation: 566 So.2d 1246
• Parties: Ricky TANNER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1246

566 So.2d 1246

Ricky TANNER v. STATE of Mississippi.

No. 89-KA-0238.

Supreme Court of Mississippi.

Aug. 22, 1990.

Rehearing Denied Sept. 26, 1990.

Donald P. Sigalas, Pascagoula, for appellant.

Mike C. Moore, Atty. Gen. and Wayne M. Snuggs, Asst. Atty. Gen., Jackson, for appellee.

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

ROBERTSON, Justice, for the Court:

I.

This is what some call a supply-and-buy sale of marijuana case. A paid confidential informant supplied marijuana to the defendant. The state's undercover narcotics agent then bought the marijuana from the defendant, whereupon the state mounted its prosecution. Under settled law the state may not do this. What makes this case of note is that the representatives of the state's prosecutorial interest have asked that we reconsider our law and greatly enlarge upon the means available to anti-drug enforcement officials. While we respect the request, we decline it.

II.

A.

On January 21, 1987, Maurine Footlack Carden, an undercover agent with the Mississippi Bureau of Narcotics (MBN), together with Tim Cooper, a confidential informant (CI) acting in cooperation with MBN, went to Ricky Tanner's home in the Hurley Community in Jackson County, Mississippi. This was at approximately 3:30 o'clock in the afternoon. Other agents provided Carden and Cooper surveillance and backup assistance, according to the usual custom and practice, but these agents were out of sight.

Tanner answered the door. Cooper greeted Tanner and introduced him to Carden--he called her "Allison." Carden said she wanted to buy a quarter pound of marijuana. Tanner agreed and said he would have to weigh it out. He then left the room, was gone four or five minutes and then returned and handed to Carden a bag containing a green and brown leafy substance which he represented to be--and which Carden believed to be--marijuana. Carden paid Tanner $275.00 and she and Cooper then left. Carden and Cooper met with the surveillance agents about fifteen minutes later and delivered the evidence to Agent David Jackson.

Tanner admitted that Cooper and a woman he thought named Allison came to his house on January 21, and he admitted that he "distributed" the marijuana, although Tanner says he handed it to Cooper, the CI, and that "Allison" handed the $275.00 to Cooper. Tanner insists, however, that the marijuana was Cooper's all along, that he, Tanner, was keeping it for Cooper, a gratuitous bailee, if you will. Tim Cooper had brought his "stash" to Tanner's house on the 18th of January because Cooper was going to Mobile and did not want it in the car. Tanner took the marijuana, the set of scales, and the plastic bags in the brown paper bag and hid them in his bedroom. "Well, I took the scales and the plastic bag and left them in the brown paper bag, and throwed them in the bottom and pulled the drawer out and put it in the drawer and covered it up with socks and underwear."

Three days later Cooper returned with "Allison", a/k/a Agent Carden, saying everything was "cool." Tanner says he handed the marijuana to Cooper who in turn handed it to Carden who in response handed Cooper $275.00 which he placed in his pocket.

B.

On October 16, 1987, the grand jury of Jackson County, Mississippi, returned an indictment charging that Ricky Tanner on January 21, 1987, had feloniously distributed 105.2 grams of marijuana to Maurine Footlack (Carden) for the sum of $275.00.

The case was originally scheduled for trial on November 1, 1988. On October 31, Tanner moved the Court for a continuance to afford him the opportunity to locate and secure the testimony of Tim Cooper, the CI. The Court granted the motion continuing the case until November 14, 1988. On November 1, Tanner had a subpoena issued for Cooper. Six days later, on November 7, Tanner had a second subpoena issued, this time for both Cooper and his wife, Ima Kay Cooper. Cooper was never found and did not appear at the trial, at the conclusion of which the jury found Tanner guilty of distribution of a controlled substance.

The Circuit Court sentenced Tanner to fifteen years imprisonment.

III.

A.

There can be no question but that the evidence is sufficient--indeed uncontradicted--that Tanner distributed marijuana, a controlled substance the distribution of which has been made unlawful. See, e.g., Doby v. State, 557 So.2d 533, 535-36 (Miss.1990); Temple v. State, 498 So.2d 379, 381 (Miss.1986); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982). The prosecution says Tanner distributed the marijuana to Carden, while Tanner says that he distributed it to Cooper who in turn gave it to Carden. The point is of no legal moment.

The question before us is whether notwithstanding these facts Tanner's conviction may stand. Without credible dispute the marijuana belonged to Cooper, who had left it with Tanner "for safekeeping." Tammy Jo Easley, Tanner's girlfriend, corroborated Tanner's testimony in this regard. Agent Carden admitted that, "I do not know where Ricky got it," and no other witness for the prosecution offered direct testimony regarding the source of the marijuana. The prosecution offered only hearsay evidence from unnamed CI's that Cooper had "about five pounds of marijuana at his residence for sale." In the face of this, Tanner urges that he is entitled to discharge.

It bears emphasis that, in the present state of the record, we must accept that Cooper supplied the marijuana to Tanner. The point was recently addressed in Gamble v. State, 543 So.2d 184, 185 (Miss.1989), where the Court said

Had the State rebutted the testimony of appellant [Tanner] by calling McKee [Cooper] or by some other credible evidence, the lower court properly would have declined to sustain the motion for directed verdict. However, where the evidence stands uncontradicted, undisputed, and unimpeached, even though the jury may not have believed the appellant, that testimony stands and makes out the defense. In cases such as this, prosecutors must have rebuttal evidence at hand to refute such testimony.

Gamble, 543 So.2d at 185. To like effect are Robinson v. State, 508 So.2d 1067, 1069 (Miss.1987); Daniels v. State, 422 So.2d 289, 291-92 (Miss.1982); Epps v. State, 417 So.2d 543, 545 (Miss.1982); Torrence v. State, 380 So.2d 248, 250 (Miss.1980); Sylar v. State, 340 So.2d 10 (Miss.1976).

B.

Entrapment is a defense to a criminal indictment, and not just in drug cases. We have articulated the core concept on many occasions.

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.

Avery v. State, 548 So.2d 385, 387 (Miss.1989); Moore v. State, 534 So.2d 557, 558 (Miss.1988); King v. State, 530 So.2d 1356, 1359 (Miss.1988); Howard v. State, 507 So.2d 58, 61 (Miss.1987); Phillips v. State, 493 So.2d 350, 354 (Miss.1986); McLemore v. State, 241 Miss. 664, 675, 125 So.2d 86, 91 (1960).

By way of distinction, a defendant is not entrapped--and enjoys no protection from prosecution--when he is already predisposed to commit the crime and when law enforcement officials merely furnish him the occasion or opportunity for doing so. See, e.g., Avery v. State, 548 So.2d at 387; King v. State, 530 So.2d at 1359; Howard v. State, 507 So.2d at 61; Ervin v. State, 431 So.2d 130, 134 (Miss.1983).

Entrapment is an affirmative defense. It concedes the factual component of the underlying charge--here distribution of marijuana.

Once the defendant makes out a prima facie case that he was entrapped, three consequences follow: First, the burden of production and proof shifts to the prosecution. Ervin v. State, 431 So.2d 130, 133-34 (Miss.1983); Tribbett v. State, 394 So.2d 878, 881 (Miss.1981); Alston v. State, 258 So.2d 436, 438 (Miss.1972). Second, predisposition becomes a fact of consequence and evidence thereof becomes relevant and, hence, always admissible. Rule 401, Miss.R.Ev.; Moore v. State, 534 So.2d at 558, 560; Sayre v. State, 533 So.2d 464, 466 (Miss.1988). Third, the accused becomes entitled to have the defense of entrapment submitted to the jury on proper instructions. Gamble v. State, 543 So.2d 184, 185 (Miss.1989); King v. State, 530 So.2d 1356, 1358, 1359 (Miss.1988).

Notwithstanding these basics, the prosecution urges--in a brief marked by perception and thoroughness--that our administration of the law of entrapment has been attended by confusion and inconsistency. Beyond this, the prosecution points out that courts of other jurisdictions have pursued paths we have pretermitted. This appears so, as for reasons grounded in public policy we have not yet sanctioned all prosecutorial practices permitted elsewhere. Specifically, we have rejected supply-and-buy, the practice at issue today.

In Moore we recognized that many cases which we had labeled entrapment--and discharged the defendant--were fundamentally cases of official misconduct. We held that

... the defendant must be discharged where state officials engage in conduct outrageous or shocking to common sensibilities, for we are not yet ready to hold that the end of reducing drug trafficking may be cured by any means.

Moore, 534 So.2d at 560 [emphasis added]. In Moore we observed

An indication of an excessive degree of involvement on behalf of the state might be the situation where the state was both supplier and purchaser of contraband.

Moore, 534 So.2d at 559.

This view is not new. We accepted it in State v. Jones, 285 So.2d 152 (Miss.1973). Jones followed the familiar supply-and-buy scenario. A paid confidential informant for the Mississippi Bureau of Narcotics provided marijuana to the defendant and importuned the defendant to make a sale for him. When the sale was made, the defendant found that his buyer had been an undercover narcotics agent. Using entrapment terminology, we held on these facts that the defendant must be...