Petition — Heath v. Mississippi

| Office-Supreme @ourt, U.S.

8 FILED

1-54 & JUL 10 1981

No. Eee

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

HarveEY H. HEATH, Petitioner,

STATE OF Mississippi, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF MISSISSIPPI

Of Counsel: DONALD J. STEIGHNER

RoBerRT S. Crump, III Altorney at Law

408 Third Avenue North

Columbus, Mississippi 39701

(601) 328-7984

July 10, 1981

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

i

QUESTION PRESENTED

1. Whether the State of Mississippi deprived Peti-

tioner of his liberty without due process of law by im-

properly refusing to allow his instruction on entrapment

to go to the jury when the evidence at trial clearly

showed that the Petitioner was induced to enter into the

transaction involving the marijuana from a series of

phone calls received from confidential informants and

when absolutely no evidence was introduced by the State

of Mississippi to show that Peititioner had any

predisposition to commit such an offense.

2. Whether the State of Mississippi deprived Peti-

tioner of his right to a jury trial by refusing to allow the

issue of entrapment to be considered by the jury.

TABLE OF CONTENTS

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sions Or THE UNITED STATES SUPREME COURT AS

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CONSTITUTIONAL PROVISIONS:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

Harvey H. HEATH, Petitioner,

V.

STATE OF Mississippi!, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF MISSISSIPPI

The Petitioner, Harvey H. Heath respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Supreme Court of the State of

Mississippi entered in this proceeding on April 15, 1981.

2

OPINION BELOW

The opinion of the Supreme Court of the State of

Mississippi, which appears in the Appendix hereto, is

cited as and can be found at 396 So. 2d 1033, (Miss.

1981). No written opinion was rendered by the Circuit

Court of Lowndes County, Mississippi.

JURISDICTION

The judgment of the Supreme Court of the State of

Mississippi was entered on April 15, 1981. A petition for

rehearing en banc was never made, therefore, no such

order denying a rehearing exists. Petitioner retained pres-

ent counsel on June 10, 1981, whereupon an Application

for Additional Time in Which to File a Petition For

Writ of Certiorari was filed within sixty-days from the

date of the judgment entered by the Supreme Court of

the State of Mississippi. This Court on June 16, 1981

entered an order extending time to file the petition for

Writ of Certiorari until July 14, 1981, and this petition

was filed within that time frame. This Court’s jurisdic-

tion is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The Constitution of the United States, Amendment 14:

Section 1. Citizens of the United States.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No state shall make or enforce

any law which shall abridge the priviledges and im-

munities of the citizens of the United States; nor

shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.

3

The Constitution of the United States, Article III:

Section(3)

The trial of all crimes, except in cases of Im-

achment, shall be by jury; and such trial shall be

eld in the State where said crimes shall have been

committed; but when not committed within any

State, the trial shall be at such place or places as the

Congress may by law have directed.

STATEMENT OF THE CASE

The case began on January 23, 1980, when Peti-

tioner, Harvey H. Heath met with an undercover agent

of the Bureau of Narcotics and a confidential informant

named Freddie Fields at a restaurant called Sambo’s in

Columbus, Mississippi. There the details were worked

out between them for the sale by Heath to the agent of

One Hundred (100) pounds of marijuana at One Hun-

dred Seventy-five Dollars (175.00) per pound. Prior to

this meeting several phone calls were placed from the

confidential informant, Freddie Fields, and another two

phone calls from unidentified persons to the Petitioner,

Heath, in the State of Alabama concerning this specific

transaction. Petitioner’s Co-Defendant, Joel Carroll, was

not present at this meeting with the undercover agent

nor was his name ever mentioned.

On January 22, 1980, the day before the transaction

was to take place, Heath approached Carroll and asked

to borrow Carroll’s car, a 1976 Lincoln Continental. The

two men swapped cars, with Carroll taking Heath’s 1979

Toyota. They arranged to meet in Columbus, Mississippi

on January 23, 1980. Carroll arrived at Leigh Mall in

Columbus, Mississippi in Heath’s Toyota. When the two

men met Heath said he had to meet someone and asked

to use his Toyota for this purpose. He then proceeded to

4

Sambo’s meeting at this time. When he returned he told

Carroll that he had another meeting and left in Carroll’s

Continental.

At the trial the State’s theory was that Carroll was

an accessory by allowing Heath to use his car to make

the delivery of the marijuana.

Carroll testified that he had no knowledge of

Heath’s plan to sell the marijuana. He said it was not

unusual to loan Heath the car and that he swapped for

the Toyota on occasion. None of the State’s evidence

ever placed Heath and Carroll together on the day of the

sale.

Heath testified and stated that Carroll had taken no

part in the sale and had no knowledge of the marijuana

being hauled in his car. In addition, Heath testified that

he had indeed sold the marijuana to the agent, but that

he had been induced to do the same because of several

phone calls, at least one of those being from the

Bureau’s informant, Freddie Fields.

The trial court overruled the Defendant/Petitioner’s

motions for directed verdicts, premptory instructions,

and motions for new trials. Joel E. Carroll and Harvey

H. Heath were convicted in the Circuit Court of

Lowndes County, Mississippi for the sale of more than

one (1) kilogram of marijuana. Heath was sentenced to

fifteen (15) years with the Department of Corrections

and assessed a fine of $10,000.00 and Carroll was

sentenced to a term of twelve (12) years and assesed a

fine of $10,000.00.

On appeal, Carroll assigned as error:

1. That the trial Court erred in refusing to grant a

Preemptory instruction of not guilty for the Appellant

5

Carroll and that the verdict of the jury was contrary to

the great weight of the evidence.

2. The Court erred in refusing to grant the Ap-

pellant, Carroll’s Motion for a New Trial because the

State’s Exhibit no. 8 was improperly admitted into

evidence.

On appeal, Heath assigned as error;

1. That the trial Court erred in refusing to grant the

Appellant, Heath’s Motion for a New Trial because In-

struction D-7 on entrapment was improperly refused.

The Supreme Court of Mississippi affirmed your

Petitioner’s conviction on April 15, 1981.

REASON FOR GRANTING THE WRIT

The Decision Below Conflicts With The Decisions Of The

United States Supreme Court As To The Right Of A Defendant 70

A Jury Trial And His Right Not To Be Deprived Of His Liberty Or

Property Without Due Process Of Law.

The Constitution of the United States, Amendment

14: Section 1. provides that no state shall deprive any

person of life, liberty, or property, without due process

of law; and Article III, Section 2, subsection 3 provides

that the trial of all crimes ... shall be by jury.

The Court below placed an unconstitutional burden

on the Defendant and thus denied him his right to a trial

by jury in conflict with cases previously decided by this

Court in regards to the defense of entrapment and its

submission to the jury.

In reliance on what it conceived to be a requirement

of the presentation of a ‘‘prima facia’’ case of entrap-

ment the lower Court upheld the trial Court’s decision to

deny the defendant an instruction that correctly and ac-

6

curately stated the law as to entrapment. The requested

instruction stated:

‘* ‘Entrapment’ means inducing or léading a person

to commit a crime not ordinarily planned by them.

Evidence has been presented that the Defendants

were induced to commit the crime by law enforce-

ment officers or their agents. For you to find the

Defendant guilty, the state must prove to your

satisfaction beyond a reasonable doubt that the

Defendants were already willing to commit the

crime and that the law enforcement officers or their

agents merely gave them the opportunity.”’

The lower Court properly called the defense of en-

trapment an affirmative defense which must be raised by

the defendant. However, the Mississippi Supreme Court

confines its definition of entrapment in a narcotics case

to its holding in 7ribbet v. State of Miss., 394 So. 2d

878, (Miss. 1981), where it stated that ‘‘the usual entrap-

ment case which arises under Mississippi law involves a

confidential informant or police officer who originates a

sale of contraband by supplying it to the accused, who

then, acting in complicity with the confidential infor-

mant or police officer, sells or disposes of it to another

officer or person who initiates the prosecution.’’ Id. at

822.

Likewise in its leading case on the issue of entrap-

ment, TJribbett v. State used to deny the instruction

sought in this case, the Mississippi Supreme Court stated

“‘This Court (the Mississippi Supreme Court) has

repeatedly held that a person making an unlawful sale of

contraband is not excused from criminality by the fact

that the sale was induced for the purpose of prosecuting

the seller. . .”’ Id.

7

It is noted that in 7ribbett the Court found that the

defendant offered no evidence to establish his defense.

Exactly the opposite was true in this case.

The trial Court, however, refused the entrapment

instruction. The issue was never presented to the trier of

fact, the jury.

In those cases where the United States Supreme

Court has dealt with the issue of entrapment it has been

long considered a basic and fundamental question of

fact for the jury to see whether ‘‘. . . the criminal design

originated with the government officials who ‘may have

implanted’ in the mind of an innocent person the

disposition to commit the alleged offense and induce its

commission in order that they may prosecute.’’ U.S. v.

Russell, 411 U.S. 423, 36 L. Ed.2d 366, 93 S. Ct. 1637.

The Mississippi Supreme Court has ignored the

United States Supreme Court’s holding in Russe// that

the principal element of the defense of entrapment is the

defendant’s lack of predisposition to commit the crime’’,

and that ‘‘Entrapment occurs when the criminal design

originates with government officials who implant in the

mind of an innocent person the disposition to commit

the alleged offense and induce its commission in order

that they may prosecute’, Id.

It is well established throughout the United States

Districts that ‘‘Ordinarily the defense of entrapment

raises a question which should be submitted to the jury

under proper instructions, this being particularly true

where the testimony of the accused at face value sup-

°

ports the defense.’’ 33 A L R 2d 883, 902. This is rein-

forced in Sherman v. U.S., 78 S. Ct. 819, wherein the

Court stated

...the Courts of Appeals have since Sorrells

unanimously concluded that unless it can be decided

as a matter of law, the issue of whether a defendant

has been entrapped is for the jury as part of its

function of determining the guilt or innocence of

the accused.

Id. at 823.

The record in this case along with the testimony of

the defendant, Heath, is replete with evidence and facts

of the intense activity of the then newly formed narcotics

squad to induce Heath to enter this transaction. The

record in Heath discloses no predisposition of Mr. Heath

to engage in the activity, which is a necessary prequisite

to a denial of the entrapment defense, therefore there

could be and was a denial of Heath’s due process rights.

Hampton v. U.S., 425 U.S. 484, 48 L. Ed. 2d 113, 96 S.

Ct. 1646.

The Mississippi Supreme Court’s consideration, in-

terpretation and application of the defense of entrap-

ment is also contrary to the United States Supreme

Court’s position on the issue in Sorrells v. United States,

287 U.S. 435, 53 S. Ct. 210; Osborn v. United States 385

U.S. 323, 87 S. Ct. 429; Masciale v. United States, 356

U.S. 387, 78 S. Ct. 827.

9

CONCLUSION

As the issue grows in constitutional importance na-

tionally as well as in Mississippi, the time is here for the

Supreme Court to issue a Writ of Certiorari to review

the judgment and opinion of the Mississippi Supreme

Court on the issue of entrapment, its use as a defense

and a Defendant’s right to have it properly considered

under correct instructions by the jury prior to being

shortstopped by the trial judge.

Respectfully submitted,

Of Counsel: DONALD J. STEIGHNER

RosBert S. Crump, III 408 Third Avenue North

Columbus, Mississippi 39701

Attorney for Petitioner

June 26, 1981

APPENDIX

IN THE SUPREME COURT OF MISSISSIPPI

No. 52,480

Jog E. CARROLL AND Harvey H. HEATH

Vv.

STATE OF MiIssIssipri

Before SmitH, Lee and BowLina

Lee, Justice, For THe Court:

Joel E. Carroll and Harvey H. Heath were indicted, tried

and convicted in the Circuit County of Lowndes County for

sale of more than on (1) kilogram of marijuana. Heath was

sentenced to fifteen (15) years with the Department of Correc-

tions and assessed a fine of ten thousand dollars ($10,000) and

Carroll was sentenced to a term of twelve (12) years and

assessed a fine of ten thousand dollars ($10,000). On this ap-

peal Carroll assigns two (2) errors and Heath assigns one (1)

error in the trial below.

Did the lower court err in refusing to grant a peremptory

instruction of not guilty for appellant Carroll, and was the

verdict of the jury contrary to the great weight of the

evidence?

In January, 1980, the Lowndes County Narcotics Unit

began an undercover drug operation in Columbus. On

January 23, Narcotics Agent Rickey Peterson went to

Sambo’s Restaurant for a prearranged drug purchase of ap-

proximately one hundred (100) pounds of marijuana. Suppor-

ting him nearby and in contact by a body microphone on

Peterson, was Officer Harold Dowdle. Inside the restaurant,

Peterson and a confidential informer met with appellant

Heath, who agreed to sell drugs to Peterson. At the latter’s

request, the three men left the restaurant and went to the

parking lot where Heath was shown a large amount of money

in Peterson’s car and Heath agreed to make a sale to him in

the Ramada Inn parking lot. Heath told Peterson he would be

driving a silver Lincoln Continental and would be accom-

2a

panied by someone with a high-powered rifle in the event

anything went wrong. Another agent surveilled the transaction

and followed Heath, who was driving a brown Toyota

automobile, to the Lee Mall parking lot. At that point, Heath

got out of the automobile and went inside the mall. A short

while later, the agent saw Heath drive by him in a silver Lin-

coln Continental. That agent continued the surveillance of the

brown Toyota until he -eceived radio notice of Heath’s arrest.

He then went inside the mall and requested the information

booth attendant to page the owner of the brown Toyota. Car-

roll answered the call, stated that the vehicle was his, and the

agent identified himself and arrested Carroll as an accessory

to the drug sale. Carroll then denied ownership of the Toyota.

He was searched by the officer and a piece of paper was

found in his wallet with the following figures on it: ‘*$175.00

x 100.’’ The marijuana sold by Heath was one hundred

pounds at one hundred seventy-five ($175.00) per pound. A

search of the vehicle did not reveal drugs, but a handgun was

found,

At trial, Carroll testified that the owned the Lincoln Con-

tinental and that he loaned it to Heath in Alabama, but had

no idea that Heath would use it to transport drugs. He further

testified that Heath borrowed the automobile on January 22

and was to return it to him at the Lee Mall in Columbus,

Mississippi, after lunch on the next day, January 23, and he

only claimed ownership of the Toyota because it was in his

possession and control at the time.

Heath testified that he had never sold marijuana before

and did so only in response to repeated solicitation from the

agents. He admitted that he purchased twelve thousand

aollars ($12,000) to fourteen thousand dollars ($14,000) worth

of marijuana on January 23 in Alabama and sold it to Agent

Peterson ‘ater that day. According to him, Carroll had no

knowledge of auy drue deal and the figures on the paper

found in Carroll’s wallet were written by Heath and actually

came from his wallet.

3a

In determining whether a peremptory instruction should

be granted and whether the verdict is contrary to the over-

whelming weight of the evidence, the Court is required to ac-

cept as true all the evidence favorable to the State, together

with reasonable inferences arising therefrom, to disregard that

evidence favorable to the defendant, and, if such evidence will

support a verdict of guilty beyond reasonable doubt, the

peremptory instruction should be refused. Bullock v. State,

391 So. 2d 601 (Miss. 1980); Wright v. State, 387 So. 2d 735

(Miss. 1980); Saik v. State, 387 So. 2d 751 (Miss. 1980).

The evidence here is circumstantial and Carroll’s connec-

tion with the sale may be proved by his actions and declara-

tions and the circumstances surrounding them. Shanklin v.

State, 290 So. 2d 625 (Miss. 1974). The burden was upon the

State to prove Carroll’s guilt beyond reasonable doubt and to

the exclusion of every other reasonable hypothesis than that

of his guilt.

Appellant Carroll relies upon Cherry v. State, 386 So. 2d

203 (Miss. 1980). That case, however, may be distinguished

from the case at bar, since it involved constructive possession

of marijuana at a time when it was undisputed that Cherry

had been absent from the premises for a period of two weeks,

during which time another person brought the marijuana to

those premises. In the present case, the evidence indicates the

following with reference to Carroll’s connection and participa-

tion in the sale:

(1) Heath agreed to sell one hundred pounds of mari-

juana for one hundred seventy-five dollars ($175.00) per

pound and three thousand (3,000) pills for fifteen hundred

dollars ($1,500).

(2) He borrowed Carroll’s Lincoln Continental car to

transport the marijuana.

(3) He left his own car (the Toyota) with Carroll.

(4) Carroll met with Heath in a mall near the drug drop

point on the day of and just prior to the drug sale.

4a

(5) He remained at the mall where the marijuana was

located in his Lincoln Continental while Heath made the sale

connection.

(6) He initially claimed ownership of the Toyota when

confronted, then denied ownership when arrested.

(7) He possessed a writing which contained figures cor-

responding to the exact weight and price of the marijuana.

(8) Heath admitted writing the figures on the paper which

was found in Carroll’s wallet.

We are of the opinion that the facts and inferences in this

case presented issues for the jury to determine concerning

Carroll’s connection with the sale and his guilt or innocence

resulting therefrom and that the court did not err in declining

to grant the peremptory instruction of not guilty and in

holding that the verdict was not contrary to the overwhelming

weight of the evidence.

Did the lower court err in refusing to grant Carroll’s mo-

tion for new trial on the ground that State’s Exhibit #8 was

improperly admitted into evidence?

Exhibit #8 was the writing hereinabove referred to which

was found in Carroll’s wallet. The court permitted introduc-

tion of the instrument on rebuttal, which was objected to by

Carroll. The trial judge has wide discretion in admitting rebut-

tal evidence. Pierre v. State, 364 So. 2d 1127 (Miss. 1978).

After overruling the objection, he permitted Carroll to in-

troduce surrebuttal testimony, which overcame the prejudice

which Carroll contends resulted from such evidence.

Did the lower court err in refusing to grant Heath’s mo-

tion for a new trial because Instruction D-7 was improperly

refused?

Sa

The requested Instruction D-7 on entrapment follows:

** ‘Entrapment’ means inducing or leading a person to

commit a crime not ordinarily planned by them.

Evidence has been presented that the Defendants were

induced to commit the crime by law enforcement officers

or their agents. For you to find the Defendant guilty, the

state must prove to your satisfaction beyond a reasonable

doubt that the Defendants were already willing to commit

the crime and that the law enforcement officers or their

agents merely gave them the opportunity.”

The instruction was properly refused for the reason that

the evidence did not make out a prima facie case of entrap-

ment. See Tribbett v. State, 394 So. 2d 878 (Miss. 1981).

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., SMITH, P.J., ROBERTSON, P.J.,

SUGG, WALKER, BROOM, BOWLING and HAWKINS,

JJ., CONCUR.