Pittman v. State

987 So. 2d 1010, 2007 WL 3257061
CourtCourt of Appeals of Mississippi
DecidedNovember 6, 2007
Docket2006-KA-00676-COA
StatusPublished

This text of 987 So. 2d 1010 (Pittman 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
Pittman v. State, 987 So. 2d 1010, 2007 WL 3257061 (Mich. Ct. App. 2007).

Opinion

987 So.2d 1010 (2007)

Andrea PITTMAN, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-KA-00676-COA.

Court of Appeals of Mississippi.

November 6, 2007.
Rehearing Denied February 19, 2008.

*1014 J.M. Ritchey, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

PROCEDURAL HISTORY

LEE, P.J., for the Court.

¶ 1. On March 17, 2006, a jury in the Madison County Circuit Court found Andrea Pittman guilty of one count of sale of cocaine and one count of possession of cocaine. On the sale of cocaine count, Pittman was sentenced to thirty years with fifteen years to serve in the custody of the Mississippi Department of Corrections and five years supervised probation. On the possession count, Pittman was sentenced to eight years with five years to serve in the custody of the MDOC, the last three years suspended and five years supervised probation. The sentence imposed in the possession count was to run consecutively to the sentence imposed in the sale of cocaine count. Pittman was also ordered to pay court costs in addition to a $5,000 fine.

¶ 2. Pittman then filed a motion for a new trial, which was denied. Pittman now appeals to this Court asserting numerous issues. As many of Pittman's issues are repetitive we have consolidated the issues as follows: (1) the State was unable to disprove her defense of entrapment; (2) the trial court erred in failing to grant certain jury instructions; (3) there was insufficient evidence to support both convictions; (4) the convictions were against the overwhelming weight of the evidence; (5) the trial court erred by not allowing her to introduce certain evidence; (6) the trial court erred in allowing into evidence a tape recording during rebuttal; and (7) she should have been allowed to assert her "procuring agent" defense. Finding no error, we affirm.

FACTS

¶ 3. This case concerns a drug buy in which a confidential informant, Jerry "Opie" Lee, working for the Madison County Sheriff's Department, contacted a deputy and informed him that he could make a buy from Andrea Pittman. At the time Lee and his girlfriend were living with Pittman, along with Pittman's mother, *1015 Maxine Klaas, and her daughters. Lee had overhead Pittman bragging about having a source from whom she purchased cocaine. Lee informed one of the narcotics agents, Tommy Jones, that Pittman offered to procure cocaine for him. Agent Jones informed Deputy Randy Tucker, who decided to go forward with the transaction.

¶ 4. On April 29, 2005, Lee met with Deputy Tucker and obtained $200 in cash to purchase cocaine from Pittman. During this meeting, Lee's car was searched and he was wired so the deputies could hear his conversation with Pittman. Lee, followed by the deputies, then proceeded to Pittman's place of employment. Lee spoke with Pittman, who informed him that she had to go to a house near Fortification Street in Jackson to buy the cocaine. Lee gave Pittman the money and instructed her to meet him in an hour in the parking lot of the Brookshire's grocery store in Ridgeland. Sometime later Lee called Pittman, who informed Lee that she had purchased two eight balls of cocaine and was on her way to the grocery store. Lee stated that Pittman asked him to buy her a Dr. Pepper because she had just done some cocaine and her throat was numb. Pittman arrived at the grocery store, got into Lee's car and handed him the cocaine. Pittman informed Lee that she got the cocaine "at cost" and did not make any profit off the sale. Pittman also asked Lee to leave some cocaine in her nightstand so she could have some later.

¶ 5. At this point the deputies moved in and placed Pittman under arrest. Pittman's vehicle was searched and a box was found containing cocaine and drug paraphernalia. Also, one of the twenty dollar bills, whose serial number was noted prior to the drug buy, given to Lee by Deputy Tucker, was recovered from Pittman's wallet.

DISCUSSION

I. DID PITTMAN ESTABLISH HER ENTRAPMENT DEFENSE?

¶ 6. Pittman's main issues on appeal concern whether she established her defense of entrapment. Pittman argues that she was entrapped because she was induced into committing a crime that she would not normally have committed and that the conduct by the sheriff's department was so egregious as to amount to entrapment as a matter of law. Pittman's brief identifies standard or classic entrapment as well as entrapment as a matter of law. Standard entrapment occurs "when an innocent person with no prior criminal inclination is induced through persistent entreaties by undercover law enforcement agents to commit an offense." Ealy v. State, 757 So.2d 1053, 1056(¶ 7) (Miss.Ct. App.2000). Once the defendant produces evidence that he or she was induced by a government agent to commit the criminal act and that he or she did not have a predisposition to commit the criminal act, the burden shifts to the prosecution to produce evidence of predisposition and the defendant is entitled to a jury instruction on entrapment. Walls v. State, 672 So.2d 1227, 1230 (Miss.1996). Entrapment as a matter of law occurs when the conduct by law enforcement is so offensive as to require the discharge of the defendant. Robert v. State, 756 So.2d 806, 809(¶ 12) (Miss.Ct.App.1999). A common example of entrapment as a matter of law is in a "supply and buy" scenario where law enforcement initially furnishes and later purchases the contraband with which the accused commits the crime. Ealy, 757 So.2d at 1056(¶ 7).

¶ 7. In regard to the standard entrapment claim, Pittman argues that the evidence shows she was not predisposed to *1016 commit the crime prior to the inducement by law enforcement. However, we find that the record reflects otherwise. Lee testified that Pittman bragged about getting paid by her boss to buy cocaine for him. Pittman knew where to find cocaine and admitted that she had been to the house off Fortification Street at least twice before. Pittman admitted that she had been to this house less than a month prior to her arrest in order to buy some marijuana. Pittman admitted that she asked Lee to set aside some cocaine for her after the sale. Deputy Tucker heard Pittman inform Lee that she had done cocaine prior to arriving at the grocery store parking lot. Although Pittman stated that Lee kept asking her to participate in the sale, there is no evidence that she was fearful or reluctant to participate on the day of the sale. Pittman is not excused from buying or selling cocaine simply because Lee asked her to do so. Id. at 1057(¶ 11); Tribbett v. State, 394 So.2d 878, 882 (Miss. 1981).

¶ 8. Whether a defendant is considered predisposed is a question of fact to be decided by the jury and this Court cannot challenge the jury's findings unless there is not substantial evidence to support them. Moore v. State, 534 So.2d 557, 559 (Miss.1988). "Where the jury resolves [this] point against the defendant, he is generally out of luck on appeal." Id. The jury received the entrapment defense jury instruction and was given an opportunity to determine whether Pittman was predisposed to commit the crime. In finding Pittman guilty, the jury clearly believed she was predisposed to commit both crimes.

¶ 9. In regard to the entrapment as a matter of law claim, Pittman argues that the conduct by law enforcement was outrageous and she should be discharged. Pittman has pointed this Court to nothing in the record which shows any outrageous conduct which would shock our common sensibilities.

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Related

Robert v. State
756 So. 2d 806 (Court of Appeals of Mississippi, 1999)
Livingston v. State
943 So. 2d 66 (Court of Appeals of Mississippi, 2006)
Jackson v. State
645 So. 2d 921 (Mississippi Supreme Court, 1994)
Bush v. State
895 So. 2d 836 (Mississippi Supreme Court, 2005)
Newsom v. State
629 So. 2d 611 (Mississippi Supreme Court, 1993)
Evans v. State
725 So. 2d 613 (Mississippi Supreme Court, 1997)
Tribbett v. State
394 So. 2d 878 (Mississippi Supreme Court, 1981)
Lyons v. State
766 So. 2d 38 (Court of Appeals of Mississippi, 2000)
Ealy v. State
757 So. 2d 1053 (Court of Appeals of Mississippi, 2000)
Harrell v. State
755 So. 2d 1 (Court of Appeals of Mississippi, 1999)
Clemons v. State
952 So. 2d 314 (Court of Appeals of Mississippi, 2007)
Morgan v. State
703 So. 2d 832 (Mississippi Supreme Court, 1997)
Boone v. State
291 So. 2d 182 (Mississippi Supreme Court, 1974)
Edwards v. State
878 So. 2d 1106 (Court of Appeals of Mississippi, 2004)
Moore v. State
534 So. 2d 557 (Mississippi Supreme Court, 1988)
McCoy v. State
820 So. 2d 25 (Court of Appeals of Mississippi, 2002)
Bell v. State
910 So. 2d 640 (Court of Appeals of Mississippi, 2005)
Walls v. State
672 So. 2d 1227 (Mississippi Supreme Court, 1996)

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Bluebook (online)
987 So. 2d 1010, 2007 WL 3257061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittman-v-state-missctapp-2007.