Alfred McCollum v. State of Mississippi ( 1997 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CT-00688-SCT
ALFRED McCOLLUM
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/21/1997
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: COVINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LESLIE D. ROUSSELL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: DEWITT L. FORTENBERRY
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 3/2/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 3/23/2000
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
¶1. Alfred McCollum was convicted of the sale of cocaine and sentenced to serve a term of nine years in
the custody of the Mississippi Department of Corrections. McCollum appealed, and his case was assigned
to the Court of Appeals, which affirmed his conviction. Because the trial court erred when it refused
McCollum's entrapment instruction, we reverse and remand for a new trial.
FACTS
¶2. On May 27, 1996, Wayne Muscio, an officer with the Collins, Mississippi Police Department was
working undercover posing as a drug purchaser. Muscio was working in conjunction with Sergeant Dan
McIntosh, also of the Collins Police Department, who had set up video and audio surveillance equipment in
Muscio's vehicle. Muscio arrived at a Chevron service station in Collins and parked near one of the
station's gas pumps. Shortly thereafter, McCollum arrived and parked his car near the same gas pump.
Muscio asked McCollum if he had a twenty. McCollum replied that he did and drove to a nearby
laundromat.
¶3. When the two arrived at the laundromat, Muscio stayed in his truck while McCollum got out of his car
and walked over to the truck. McCollum exchanged a rock of cocaine with Muscio for twenty dollars. The
exchange was recorded by the video camera hidden in Muscio's truck.
¶4. After Muscio and McCollum left the Chevron station, Muscio went to a prearranged spot to meet
Sergeant McIntosh, where he put the rock in a plastic bag and initialed and dated the bag. The bag was
subsequently delivered to the Mississippi Crime Lab which, after performing ultraviolet spectrophotometry
and mass spectrometry testing, determined the contents of the bag contained cocaine.
¶5. McCollum was subsequently indicted and tried for the sale of cocaine. The jury found McCollum guilty,
and his motions for new trial and judgment notwithstanding the verdict were denied. McCollum appealed,
and his case was assigned to the Court of Appeals which affirmed his conviction. McCollum v. State, No.
97-KA-00688-COA, 1999 WL 228122 (Miss. Ct. App. Apr. 2, 1999). McCollum then filed a Petition
for Writ of Certiorari which we granted.
ANALYSIS
¶6. McCollum argues that he was entitled to receive an instruction on entrapment. In support of his position
McCollum cites King v. State, 530 So. 2d 1356 (Miss. 1988). Though somewhat lengthy, our analysis in
that case is instructive:
Entrapment is an affirmative defense. Once the defendant makes out a prima facie case that he was
entrapped, two consequences follow. First, the burdens of production and proof shift 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, the accused
becomes entitled to have the issue of entrapment submitted to the jury on proper instructions. The
defense of entrapment is available where criminal intent did not originate in the mind of the accused, or
stated differently, where the accused was not predisposed to commit the crime. Howard v. State,
507 So. 2d 58, 61 (Miss.1987); Pace v. State, 407 So. 2d 530, 532 (Miss.1981); McCormick v.
State, 279 So. 2d 596, 597 (Miss.1973). Where, however, the intent to commit the crime already
existed in the mind of the accused so that the inducement merely served to give him an opportunity to
commit that to which he was already disposed, the entrapment defense does not lie. Phillips v.
State, 493 So. 2d 350, 354 (Miss.1986) and cases cited therein; Barnes v. State, 493 So. 2d 313,
315 (Miss.1986).
Whether the entrapment defense--or any other issue of fact--should be submitted to the jury
ultimately turns on whether there is in the record credible evidence supporting it. Here the test is the
reverse of that described in Part III above, "for now the defendant must be given the benefit of all
doubts about the evidence." Lee v. State, 469 So. 2d 1225, 1230 (Miss.1985). Where a party
offers evidence sufficient that a rational jury might find for him on the particular issue, that party as of
right is entitled to have the court instruct the jury on that issue and submit the issue to the jury for its
decision. See, e.g., Monroe v. State, 515 So. 2d 860, 863 (Miss.1987); Armstead v. State, 503
So. 2d 281, 285 (Miss.1987); Lee v. State, 469 So. 2d 1225, 1230-31 (Miss.1985).
We have expressly held that this rule applies in an entrapment case. See Phillips v. State, 493
So. 2d 350, 353-54 (Miss.1986), a case where the trial court had refused the entrapment instruction.
In reversing, this Court stated:
Phillips claims on this appeal merely that he had presented sufficient evidence so that he was entitled
to have the entrapment issue submitted to the jury. Our familiar rule, of course, provides that whether
an issue should be submitted to the jury is determined by whether there is evidence which, if believed
by the jury, could result in resolution of the issue in favor of the party requesting the instruction.
Conversely, only where the evidence is so one-sided that no reasonable juror could find for the
requesting party on the issue at hand may the trial court deny an instruction on a material issue.
[citations omitted]
493 So.2d at 353-54. Our question then is whether there was sufficient evidence in the record that a
rational jury might have found for King on the entrapment issue.
To begin with, King admitted the offense charged in the indictment. He testified, however, that he had
purchased the half pound of marijuana in Texas and had brought it with him to Mississippi where he
was keeping it for his own personal use. He expected to be in Mississippi for several months, having
been laid off from his job at Brown & Root Corporation as an offshore oil rig construction worker in
Texas. The quantity--one half pound--is not so large that the suggestion that he was keeping it for his
personal use was inherently incredible. When asked if he had ever sold marijuana before, King
testified "No, I hadn't." King's testimony is quite unequivocal that he would never have sold marijuana
had it not been for the constant importuning of the Bureau of Narcotics' confidential informant Joyce
Clouse. If believed, King's evidence established that before November 14, 1985, he had no
predisposition to commit the crime of sale of marijuana. Given the evidence in the record, we cannot
say that a jury would have been irrational had it so found. Indeed, our procedural context requires
that King's testimony "be taken as true." Phillips v. State, 493 So. 2d 350, 355 (Miss.1986).
The State's brief emphasizes evidence before the Circuit Court that King was "predisposed" and was
not entrapped. No doubt there is such evidence, but that is of no moment. King is not here arguing
that the evidence is legally insufficient to support a verdict against him, only that he was denied the
right to have the jury pass on his sole defense. Put otherwise, that the record contains evidence
adequate to undergird a jury's rejection of an entrapment defense is wholly irrelevant to the question
whether the accused was entitled to have the issue submitted via an entrapment instruction. See Lee v.
State, 469 So.2d at 1229-32.
Nothing in cases such as Harper v. State, 510 So. 2d 530, 531 (Miss.1987); Ervin v. State, 431
So. 2d 130 (Miss.1983); Carroll v. State, 396 So. 2d 1033 (Miss.1981); or Tribbett v. State, 394
So. 2d 878 (Miss.1981) or cases of that sort are to the contrary. Those cases merely state in a
conclusory fashion that the defendant had not made out a prima facie case. Where, as here, the
defendant admitted the offense but testified unequivocally that he had never made a sale of marijuana
before, that he had no plans, intention or disposition for making such sale, and that had it not been for
the importuning of the Bureau of Narcotics confidential informant he would not have done so, he has
made his prima facie case and is entitled to have the question submitted to the jury. This being a
central issue in the case, and, indeed, King's entire defense, we have no alternative but to reverse the
judgment of conviction and the sentence entered thereon and remand the case for a new trial.
King v. State, 530 So.2d at 1358-60.
¶7. In the present case, the Court of Appeals majority found on this issue:
"Mississippi follows the rationale of the defendant's predisposition in determining whether entrapment
occurred. It is an affirmative defense, and the defendant must first show evidence in support of the
defense. Then it becomes the state's burden to show predisposition on the part of the defendant."
Ervin v. State, 431 So. 2d 130, 134 (Miss.1983).
McCollum admitted having sold rock cocaine to Officer Muscio, but denied having a predisposition
to the sale. He argues that but for Officer Muscio's several attempts to have conversations with him
about wanting to buy drugs, he would not have sold the cocaine. According to McCollum, the
cocaine was intended for his personal consumption rather than for distribution.
A review of the record reveals that the State introduced into evidence a videotape which captured
McCollum's actions and demeanor while transacting the sale of cocaine to Officer Muscio. The
videotape evinced McCollum's ready commission of the crime which amply demonstrated his
predisposition to the sale of cocaine. Johnston v. State, 93-KA-01418-SCT, p.14 (Miss. Sup.
Ct.1997) [730 So. 2d 534]. McCollum's testimony regarding his frequent purchase, possession and
use of cocaine also established his predisposition regarding drug statutes. Id.
Considering the previous evidence, this Court finds that there was sufficient evidence to support
McCollum having a predisposition to the sale of cocaine. Id. Because McCollum exhibited this
predisposition, the trial judge did not err in refusing to grant an instruction on entrapment. King, 530
So.2d at 1358.
McCollum, 1999 WL 228122 at *2.
¶8. Much of the language used by the majority in the Court of Appeals opinion stems from Johnston,
supra, that case involved the sufficiency of the State's evidence establishing predisposition, not whether the
appellant was entitled to an entrapment instruction.
¶9. Judge Coleman dissented, was joined by two other members of the Court of Appeals, stated:
Because I find McCollum's testimony sufficient to support his defense of entrapment, I respectfully
dissent. The Mississippi Supreme Court explicated the defense of entrapment in Walls v. State, 672
So. 2d 1227, 1230-31 (Miss. 1996).
................
To support my reason for dissenting, which is that McCollum's testimony was sufficient to support a
"rational" jury's finding for him on the entrapment issue as required by the previously quoted standard
of review, I offer the following excerpts from McCollum's testimony on direct examination:
Q. Do you recall the first time you saw Wayne Muscio that day?
A. Yes, sir.
Q. Tell the jury when you saw him and what transpired?
A. Okay. I was coming out of this certain community in Collins. I had $10.00 left. I bought an $8.00
dollar piece of crack cocaine, and I was going to put $2.00 worth of gas in my car and go home. So,
while I was pulling out of this community, he stopped me and asked me about drugs, which I had
never seen this guy before. And he got to telling me . . . . about how, you know, he had been over in
this community and other guys had been ripping him off of money and selling him wax and soap. And
I felt sorry for him because I was a drug addict, and I work hard for my money. If I want to buy some
drugs, I want to make sure they [are] drugs. And so, I told him, no, I didn't know where no drugs
was. So, I left there and I went to Jr. Food Mart, and he followed me up to Jr. Food Mart. I had no
intent of selling this guy any drugs, you know, because he come to me saying he had been ripped off
and guys had been, you know, stealing money from him. I'm not prejudiced. If I can help anybody,
I'm going to help them out.
....
I told him I didn't know where none [dope] was because I, you know, I hadn't seen him. I didn't
know him, you know. He kept begging me and following me all the way to Jr. Food Mart. I don't
know this guy.
Q. Would you have sold it to him if you had known him?
A. No. I don't sell cocaine. I smoke cocaine. I work for a living. I'm not a drug dealer.
As the majority opinion recites, the officers had made a videotape of the transaction between
McCollum and the undercover narcotics officer, Wayne Muscio, which occurred at a service station
in Collins. McCollum's counsel questioned McCollum about what the videotape, when played,
portrayed:
Q. Okay. So, you pulled into the gas station and you saw that on the tape; is that correct?
A. Yes, sir.
Q. And what happened?
A. Well, I was going to the gas pump to get some gas to go on home with and he stopped me again,
you know. He just, like I say, was following me. I had no intention of selling this guy no drugs. He
just, you know, kept asking me and begging me telling me about how, you know, other people had
ripped him off.
Q. Do you recall what the first thing said was between the two of you?
A. Well, when he flagged me down at the service station talking about he had been looking for me,
which he couldn't have been looking for me because I had never seen him before. Me and him had
had no conversation about any drugs, you know, until then. I don't know him. And like I said, I'm not
prejudice [sic], you know. I thought he was an addict like I was, you know. If you go buy some dope
and somebody steals your money, that hurts you, and that's what he had been telling me they had
been doing.
When his counsel asked McCollum, "Is there any other reason why you would have gave [sic] him
that $8.00 piece of cocaine for $20.00?," McCollum replied:
No reason. I would have smoked it myself. If he hadn't stopped me and kept begging and saying, you
know, he needed it, I wouldn't have sold him that dope because like I said, I smoke dope. All the
dope that I can get my hands on I smoke it myself, and I buy it with my own money. I'm not a drug
dealer.
McCollum further testified that when he was arrested, he "had been on that job for two and a half
years for Delco Ltd. in Raleigh, Mississippi." He admitted that his employer terminated him after he
had been incarcerated in the county jail. McCollum never denied that he sold Officer Muscio the
single rock of cocaine for $20.00.
My colleagues in the majority conclude "that there was sufficient evidence to support McCollum['s]
having a predisposition to the sale of cocaine," and, therefore, "[b]ecause McCollum exhibited this
predisposition, the trial judge did not err in refusing to grant an instruction on entrapment." (Majority
opinion, p. 4). I do not disagree that "there was sufficient evidence to support McCollum's having a
predisposition to the sale of cocaine," but with deference to my colleagues in the majority, I submit
that McCollum's testimony, which I have quoted, was also sufficient for "a rational jury [to] have
found for [McCollum] on the entrapment issue." See Walls, 672 So. 2d at 1230.
McCollum, 1999 WL 228122 at *4-6. (Coleman, J., dissenting).
¶10. Pursuant to King v. State, supra, McCollum's above testimony established at least a jury question
regarding entrapment in this case. Therefore McCollum was entitled to an entrapment instruction, especially
in light of the fact that entrapment was his entire defense. We therefore reverse and remand this case for a
new trial.
CONCLUSION
¶11. We find that McCollum was entitled to have his instruction on entrapment given to the jury, and the
trial court erred when it refused to give it. Therefore we reverse the judgments of the Court of Appeals and
the Covington County Circuit Court, and we remand this case to the Covington County Circuit Court for a
new trial consistent with this opinion.
¶12. REVERSED AND REMANDED.
PRATHER, C.J., BANKS, McRAE AND WALLER, JJ., CONCUR.
SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY PITTMAN, P.J. AND COBB, J.
SMITH, JUSTICE, DISSENTING:
¶13. I respectfully dissent for the following reasons: First, I would dismiss McCollum's Petition for Writ of
Certiorari as untimely because it was filed seven days late. See M.R.A.P. 17(b) (petition for writ of
certiorari must be filed in the Supreme Court within fourteen days from date of entry of judgment by the
Court of Appeals). McCollum fails to give the Court any reason whatsoever for the late filing. Indeed, the
petition fails to even mention the late filing.
¶14. Second, considering the merits of the issue upon which the majority reverses McCollum's conviction
and sentence, in my view, there is an absolutely clear and valid legal reason why the trial judge did not allow
McCollum's entrapment instruction. The Court of Appeals was correct to affirm McCollum's conviction.
¶15. This Court, in King v. State, 530 So. 2d 1356, 1358-59 (Miss. 1988), stated:
Entrapment is an affirmative defense. Once the defendant makes out a prima facie case that he was
entrapped, two consequences follow. First, the burdens of production and proof shift to the
prosecution.... The defense of entrapment is available where criminal intent did not originate in the
mind of the accused, or stated differently, where the accused was not predisposed to commit the
crime. Where, however, the intent to commit the crime already existed in the mind of the
accused so that the inducement merely served to give him an opportunity to commit that to
which he was already disposed, the entrapment defense does not lie.
(citations omitted & emphasis added.) Thus, the primary question is whether the prosecution's proof
overwhelmed the meager proof offered by McCollum regarding predisposition to preclude the necessity of
granting McCollum's requested entrapment defense instruction?
¶16. In my view, McCollum simply failed to make out a sufficient prima facie case of true inducement by the
undercover agent and lack of predisposition by McCollum to sell drugs to the agent. This Court has held
that the mere raising of the entrapment defense "opens the door for the prosecution to introduce evidence of
predisposition to commit the offense." Hopson v. State, 625 So. 2d 395, 402 (Miss. 1993). The State's
evidence clearly and sufficiently demonstrated McCollum's predisposition to sell cocaine.
¶17. What was the State's evidence? First, the jury was shown a videotape with audio of the entire
transaction. Thus, McCollum's actions, demeanor, and voice were observed and heard by the jury.
Likewise, so were the drug agent's. Then, there is the testimony of the agent himself which overwhelmingly
refutes any suggestion of "constant importuning" which so concerned the King Court. Webster defines the
word "importune" as, "to press of urge with troublesome persistence; to beg, urge, or solicit persistently or
troublesomely." Webster's Third New International Dictionary 1135 (3rd ed. 1976). Indeed, this case
stands in stark contrast to the facts in King, (relied upon so heavily by the majority), where King testified
that the confidential source "had been bugging him for months to sell her some marijuana. . . .[and] that he
finally gave in to her persistent demands." King, 530 So. 2d at 1357. Here, Agent Muscio, alone in his
vehicle, first approached McCollum at the Junior Food Mart and asked him about purchasing a single rock
of cocaine. The record reflects that McCollum answered no only once. Shortly thereafter, at the laundry
mat Muscio again asked McCollum, "Hey, man, you got a 20?" On cross-examination, McCollum admitted
that he replied "Yeah, I got one." McCollum also admitted that Agent Muscio never left his vehicle at either
location, not even to make the actual purchase of the cocaine. Instead, McCollum got out of his vehicle and
brought the cocaine to Muscio's vehicle. There is a total absence of pleading, begging, pressure, coercion,
undue influence, arm-twisting, trickery, deceit or "constant importuning" as described by the Court in King.
Additionally, there is evidence here of McCollum's prior drug-related activities which adequately
demonstrated predisposition and/or inclination to sale the cocaine to Agent Muscio. McCollum admitted
that he was a frequent purchaser of cocaine. We should note also that this is not one of those cases where
the confidential source or undercover drug agent supplied the cocaine, but rather, it was McCollum, a
frequent cocaine purchaser, who supplied the drug. Finally, there is McCollum's admitted profit in selling the
cocaine and making money off the transaction which was also presented to the jury.
¶18. This is not a case where McCollum was entitled to an entrapment defense instruction. Simply put,
McCollum failed to establish that he lacked the predisposition to commit the act of selling cocaine, thus
entrapment was not a defense. Hopson v. State, 625 So. 2d 395, 399 (Miss. 1993). The Court of
Appeals and the trial judge correctly ruled regarding this issue. I would affirm those courts.
¶19. For these reasons, I respectfully dissent.
PITTMAN, P.J., AND COBB, J., JOIN THIS OPINION.