Ealy v. State

757 So. 2d 1053, 2000 WL 291727
CourtCourt of Appeals of Mississippi
DecidedMarch 21, 2000
Docket98-KA-00612-COA
StatusPublished
Cited by4 cases

This text of 757 So. 2d 1053 (Ealy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ealy v. State, 757 So. 2d 1053, 2000 WL 291727 (Mich. Ct. App. 2000).

Opinion

757 So.2d 1053 (2000)

Troy EALY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 98-KA-00612-COA.

Court of Appeals of Mississippi.

March 21, 2000.

*1055 Edmund J. Phillips, Jr., Newton, P. Shawn Harris, Lake, Attorneys for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

EN BANC.

SOUTHWICK, P.J., for the Court:

¶ 1. Troy Ealy was convicted on two counts of sale of cocaine. His sole argument on appeal is that the court erred in not granting him a jury instruction on entrapment. We agree that the instruction should have been given. We reverse and remand for further proceedings.

FACTS

¶ 2. Mississippi Bureau of Narcotics Agent Mark Whatley testified that he and confidential informant Joe Dennis bought $40 worth of crack cocaine from Ealy on two separate occasions on the same day, July 24, 1997. Dennis, who had used cocaine with Ealy on previous occasions, went with Whatley to Ealy's house both times. On the first occasion, Dennis talked with Ealy at the front door and then brought him out to the car to meet Whatley. Ealy told Whatley to drive around the block. When Whatley and Dennis returned, Ealy gave Whatley two rocks of crack cocaine in exchange for $40. The second buy took place about an hour later when Whatley and Dennis returned. This time, Whatley gave Ealy $40 first, then Ealy disappeared and returned with two rocks of crack cocaine, which he wrapped in a napkin and gave to Whatley. Both times, Dennis wore a wire so the transactions could be monitored by two other state narcotics agents, Jimmy Nichols and Tony Shearer, who were waiting in a state vehicle down the street. In each case, according to Ealy's testimony, he kept a portion of the cocaine for his own use. Following each purchase, at a postbuy meeting, Whatley turned the cocaine over to Nichols for safekeeping. It was later tested at the state crime laboratory and determined to be crack cocaine.

¶ 3. At one point during the second transaction, Agents Nichols and Shearer pulled up at Ealy's house in their state car and spoke momentarily to Ealy, who later testified he knew Nichols to be a state narcotics agent. After the two agents left, Ealy resumed his transaction with Whatley.

¶ 4. The State acknowledged that sometime prior to these events, Agent Nichols had spoken to Ealy about helping with undercover purchases. Nichols testified that the discussion was preliminary and no agreement was made. On the other hand, Ealy testified that when he made the two sales to Whatley, he believed that he was acting as a confidential informant. He testified that when the informant Dennis approached Ealy at his house before the first sale, Dennis asked Ealy to help him out by making a drug buy for him. Dennis allegedly identified the buyer Whatley as an drug agent. Dennis denied this and testified that he had identified Whatley to Ealy as his nephew.

¶ 5. At the close of the evidence, Ealy submitted two jury instructions dealing with entrapment. The two instructions were as follows:

D-6: The Court instructs the Jury that should you find from the evidence that if the informant or government agent supplied the illegal drugs or the means to obtain illegal drugs to the defendant, then the defense of entrapment lies and you should find the defendant "Not Guilty."
D-7: The Court instructs the Jury that when a criminal design originated not with the accused, but is conceived in the mind of law enforcement officers, or persons acting under their advice or instructions, and the accused is by persuasion, deceitful representations, or inducement *1056 by officers or their agents, lured into the commission of a criminal act, the State is stopped from prosecution thereon.
If you find in this case that the criminal design originated not with the accused but was conceived in the mind of Law enforcement officers, or persons acting under their advice or instructions, and that the Defendant was, by persuasion, deceitful representations, or inducement by such officers or persons, lured into the commission of the criminal act of possessing or selling the illegal drug, you must find the defendant "Not Guilty."

After counsel presented argument, the court determined that both instructions should be denied.

DISCUSSION

¶ 6. Ealy contends that the denial of these two instructions was error because he presented sufficient evidence for the jury to consider the issue of entrapment. One authority that he cites permits lesser-included-offense instructions to be submitted to the jury only where there is an evidentiary basis for them in the record; that such instructions should be refused only where the evidence can only justify a conviction on the principal charge. Lee v. State, 469 So.2d 1225, 1230-31 (Miss.1985). The other precedent upheld the denial of a defense instruction on reasonable doubt because it unduly enhanced the testimony of the defendant and amounted to a comment on the weight of the testimony. Boone v. State, 291 So.2d 182, 186 (Miss.1974). These precedents do usefully focus us on the need for some evidence to support the instruction.

¶ 7. The supreme court has recognized that entrapment issues arise in two situations. Classic entrapment is when an innocent person with no prior criminal inclination is induced through persistent entreaties by undercover law enforcement agents to commit an offense. Jones v. State, 285 So.2d 152, 157 (Miss. 1973). Either a separate category, or just an extreme version of the classic case, is when law enforcement officers initially furnish and later purchase the contraband with which the accused commits the crime. When a supply-and-buy case is proven, the supreme court has found entrapment in part because of the overly intertwined involvement of the State in the entire transaction. Moore v. State, 534 So.2d 557, 559 (Miss.1988). Instruction D-6 was for such a case. There was no evidence to support that here. Thus D-6 was properly denied. D-7 is another matter.

¶ 8. The supreme court has explained when an entrapment instruction must be given:

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 lack of predisposition to engage in the criminal act prior to contact with government agents.

Hopson v. State, 625 So.2d 395, 399-400 (Miss.1993).

¶ 9. It is necessary for a defendant to show that the offense was induced by a government agent. He must also show that he was not "ready and willing" to commit such offenses whenever the occasion for doing so arose. Moore, 534 So.2d at 559. The presence of inducement and the absence of predisposition must both be shown.

¶ 10. Once the defendant makes out a prima facie case of entrapment, he *1057 becomes entitled to an instruction. Walls v. State, 672 So.2d 1227, 1230. The issue is not whether there was strong evidence to the contrary. It is whether there was some evidence upon which a reasonable juror could rely in support of the defense.

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Bluebook (online)
757 So. 2d 1053, 2000 WL 291727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ealy-v-state-missctapp-2000.