White v. State, CR

• Decision Date: 06 March 1989
• Docket Number: No. CR,CR
• Citation: 298 Ark. 163,765 S.W.2d 949
• Parties: Dorsey McRae WHITE, Appellant, v. STATE of Arkansas, Appellee. 88-134.
• Court: Arkansas Supreme Court

Page 949

765 S.W.2d 949

298 Ark. 163

Dorsey McRae WHITE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-134.

Supreme Court of Arkansas.

March 6, 1989.

Ray Baxter, Benton, for appellant.

J. Denhammcclendon, Little Rock, for appellee.

HICKMAN, Justice.

Dorsey McRae White, a 68 year old widower and cattleman, was convicted of six counts of possession of marijuana with intent to deliver and one count of criminal use of an illegal weapon, a sawed-off shotgun. Finding no error, we affirm the convictions.

The most important question we consider is whether the appellant was entrapped into committing the drug offenses. The Hempstead County sheriff's office approached Vercina Lindsey, a black female, to cooperate in making a drug buy from Dorsey White. At the time, Ms. Lindsey had charges pending against her involving stolen credit cards and, according to her, she and the appellant had an ongoing sexual relationship. She agreed to cooperate with the sheriff's office. Thedford White, a black Texarkana police officer, was recruited to serve as an undercover officer and to pose as a friend of Ms. Lindsey.

Officer White made five separate purchases of marijuana from the appellant over a six week period. The first sale took place on October 2 and involved about 1.5 ounces of marijuana for $200.00; the second sale occurred on October 14 and involved 6.2 ounces for $425.00; the third sale on October 22, 7.7 ounces for $550.00; the fourth sale on November 3, 6.9 ounces for $550.00; and the final sale on November 12, 1.75 pounds for $1,900.00.

The appellant told the jury that Vercina said her "friend" (Officer White) was a preacher who needed marijuana for medicinal purposes but could not be seen buying it. He testified that when Officer White first came to his home to ask for marijuana, he told him, "that if he was in that shape, he was a preacher ... I would try to help him."

Officer White's and Ms. Lindsey's testimony was different. Ms. Lindsey said she merely told the appellant she had a friend who wanted some "dope." She also testified that the appellant had given her marijuana for her own use. She said, "he would take some out of [a bag] and put it in a paper towel. I asked him why don't you give me a little more, and he said no, it's for somebody else." (Italics supplied.) She also said that after Officer White made the first buy, the appellant called her and asked, "does your buddy need any more smoke, because I will get him some more."

Officer White testified he never told the appellant he was a preacher or why he wanted the drugs, and he never heard Ms. Lindsey offer any explanation to the appellant. When he told the appellant he wanted marijuana, the appellant told him he could supply him with whatever he needed.

In addition, another officer testified that the appellant's statement given after his arrest contained no explanation for the drug sales.

Was the appellant entrapped? The trial judge refused to rule as a matter of law that the appellant was entrapped. He gave the issue to the jury for a decision and he was right. Ark.Code Ann. § 5-2-209(b) (1987) defines entrapment as follows:

Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

While we primarily focus on the conduct of the officers, the defendant's conduct should not be disregarded. In Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), we said the following:

[A] defendant's conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question [of] whether the government agents only afforded the opportunity to commit the offenses with which he is charged.

Entrapment does not occur when government agents merely afford the opportunity to do that which a person already has a predisposition to do. See Jackson v. State, 12 Ark.App. 378, 677 S.W.2d 866 (1984). Entrapment as a matter of law is established only if there is no factual issue to be decided. Ordinarily, it is a question of fact. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

The appellant had the burden of proving he was entrapped. He had to convince the jury that he was telling the truth and that Vercina and Officer White were not. He was the only one to testify that he was persuaded by the "sick preacher" story. Officer White and Vercina Lindsey said no such story was told to the appellant. The jury chose to believe Officer White and Vercina Lindsey.

The argument that the interracial relationship between the appellant and Ms. Lindsey had a bearing on the jury's verdict ignores the state's evidence. The appellant made five separate sales to Officer White involving about three pounds of marijuana over a six week period. Undoubtedly, the jury was convinced that the appellant was not a naive cattleman but was a dealer in drugs who deserved serious punishment.

The appellant also complains about his conviction for possession of 1/7th of an ounce of marijuana with the intent to deliver. He argues the small amount is not enough to prove it was intended for a sale, citing Ark.Code Ann. § 5-64-401(d) (1987), which states that at least an ounce must be possessed to create a presumption of intent to deliver. Furthermore, he claims that if it had been intended for sale, he would have included it in the last sale to Officer White.

The jury could consider the fact that the appellant had sold drugs in deciding he also intended to sell the small amount. That fact combined with the appellant's testimony that the marijuana was not for his own use, and the testimony of officers that such quantities were sometimes sold in a form known as "dime bags," supports the jury's determination the marijuana was intended for sale.

Two arguments made by the appellant will not be considered because they were not preserved for appeal. The appellant claims repeated inflammatory remarks by witnesses and by the prosecuting attorney denied him a fair trial. Not one objection was made to the remarks about which the appellant complains. We will not consider an argument on appeal unless it is made below. See Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Ark.Code Ann. § 16-91-113(b)(3) (1987). Appellate counsel, who did not defend Dorsey White at trial, makes a passionate argument about the conduct of the prosecuting attorney, but we are not convinced that any one statement or the cumulative statements were so flagrantly prejudicial that the trial court should have intervened. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The same is true regarding the argument that the search warrant was defective. The search of the appellant's home resulted in the seizure of the 1/7th ounce of marijuana and the sawed-off shotgun. None of the arguments made on appeal were made to the trial court so we will not consider them.

Though the shotgun was not listed on the warrant, the trial judge ruled its seizure was proper, and we agree. The weapon is prohibited by law. Ark.Code Ann. § 5-73-104(a) (1987). The officer testified that discovery of the shotgun was inadvertent. An officer, who, in the course of otherwise lawful activity, observes the nature and location of things which he reasonably believes to be subject to seizure, may seize such things. A.R.Cr.P. Rule 14.4; see also Johnson v. State, 291 Ark. 260, 724 S.W.2d 160, cert. denied, 484 U.S. 830, 108 S.Ct. 101, 98 L.Ed.2d 61 (1987).

Essentially, the appellant lost his case to the jury. We find no properly preserved error that would warrant reversal.

AFFIRMED.

HOLT, C.J., and PURTLE and NEWBERN, JJ., dissent.

HOLT, Chief Justice, dissenting.

I do not agree with Justice Purtle that the appellant, Dorsey McRae White, was "entrapped" by law enforcement officials to commit six offenses relating to the sale of marijuana. The defendant was in the drug business and got caught. I do join him, however, in finding that the record is saturated with prejudicial remarks by the prosecutor which were not related to matters of evidence, but were injected into the trial for the obvious purpose of creating prejudice in the minds of the jury. In addition, I feel there is insufficient evidence to convict the defendant on the charge of possession with intent to deliver one-seventh ounce of marijuana since the record is devoid of any proof of intent to deliver.

As noted by Justice Purtle, the conduct of the prosecutor was sufficient to deny the appellant a fair trial. However, I limit my concern to the impact of the prosecutor's prejudicial remarks to the jury in regard to sentencing of the defendant.

Under our criminal justice system, we call upon the jury to make findings of guilt and to assess punishment in the same proceeding, Ark.Code Ann. § 5-4-103 (1987), unless there is an exception which calls for bifurcation. See e.g., Ark.Code Ann. § 5-4-602 (1987) (dealing with capital felony murder cases). In evaluating the remarks made by the prosecutor during the course of the trial, we should view his comments in light of what effect, if any, they may have had upon the jury's finding of guilt or innocence and also, what effect, if any, they may have had upon the assessment of punishment.

Since the evidence is overwhelming as to the appellant's overall guilt, except for the sale of one-seventh ounce of marijuana, the comments of the prosecutor, set out in detail in Justice Purtle's dissent, though prejudicial should not require us to reverse and remand this case for retrial. However, when I see that the jury assessed the maximum period of confinement on each count of possession of marijuana with intent to deliver, including the charge of possession of one-seventh of an ounce, it is...