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BILLY R. ERVIN v. STATE OF MISSISSIPPI

APRIL 13, 1983

BILLY R. ERVIN
v.
STATE OF MISSISSIPPI



BEFORE BROOM, PRATHER AND ROBERTSON

BROOM, PRESIDING JUSTICE, FOR THE COURT:

Controlled substance possession, over one kilo of marijuana, with intent to deliver is the charge upon which the defendant, Billy R. Ervin, was convicted in the County Court of DeSoto County, the Honorable Mills Barbee, presiding. Jury trial on August 26, 1981, resulted in a "guilty as charged" verdict. Four years imprisonment and a $5,000 fine were fixed as Ervin's punishment by county court order dated September 18, 1981. We affirm.

On appeal here, defendant Ervin argues that the lower court erred in [1] disallowing his defense based on entrapment, [2] admitting into evidence illegally obtained evidence, [3] allowing testimony of state expert forensic scientist that the substance was marijuana, [4] and in rejecting defendant's requested instruction concerning a "missing witness" , and [5] refusing to declare Mississippi Code Annotated 41-29-105 (1972) unconstitutional.

 Facts of the case are the following: Agents of the Mississippi Bureau of Narcotics arrested one Burnette on or about December 19 or 20, 1980, in his Greenville, Mississippi home, and charged him with possession of approximately 15 pounds of marijuana, possession of LSD, and possession of hashish. Burnette was taken to the Washington County jail, and discovery was made that he was a fugitive from justice in Tennessee, and wanted in connection with a burglary in Oxford, Mississippi. After Burnette was released on bond, he made contact with agent Richard Oakes who had left his calling card with Burnette's "wife" . (It is not clear from the record that Burnette was married). Oakes told Burnette that any assistance he could provide would be reported to the district attorney. Oakes testified that he made no offer of leniency. Burnette had never been an informant before, but the record supports the contention that he decided to become one in hope that it would aid him

 in his own predicament. Burnette, who knew Ervin from their association with mutual friends, decided to call Ervin and set up a marijuana purchase with narcotics agents present. Between December 26 and 28, 1980, Burnette called Ervin who was said to have stated that he could obtain 20 pounds of marijuana. On December 28, 1980, Burnette went to Hernando, Mississippi, and called Ervin. They agreed that Ervin would meet Burnette at the Shakey's Pizza Parlor parking lot near the Mississippi-Tennessee state line in DeSoto County, Mississippi. Burnette stated that he could not come to Memphis, Tennessee, to meet with Ervin because he was in trouble and people were waiting for him there. Ervin believed Burnette and agreed to deliver the marijuana at Shakey's. Agent Oakes and several other agents were present. Burnette parked his car at a conspicuous point in the parking lot, and was "wired for sound" with a small transmitter.

 At approximately 4:30 p.m., defendant Ervin arrived and parked his car, a white Honda, next to Burnette. Ervin displayed to Burnette a grocery sack containing marijuana, whereupon the latter exited his car in order to obtain money for the purchase. *fn1 This was a pre-arranged signal for the narcotics agent to move in and arrest Ervin. As the arrest was made, the agent simply reached into the back seat of Ervin's car and picked up three more grocery sacks suspected of containing marijuana which were very similar to the one Ervin displayed to Burnette moments earlier.

 Ervin was indicted by the DeSoto County grand jury during the April term of 1981. He was charged with possession with the intent to deliver a controlled substance identified in the indictment as more than one (1) kilo of marijuana. Honorable Andrew Baker, Circuit Judge of DeSoto County, transferred the cause to the County Court on June 8, 1981.

 Ervin made a pre-trial motion for discovery of all items seized intended for use as evidence, exculpatory evidence, Ervin's criminal record, any statements Ervin may have made and any and all records of offense or arrest. He also gave notice of his intent to plead not guilty by reason of entrapment. The state answered with a list of six witnesses, and its intention to introduce the seized marijuana. Continuances were granted and the trial date was re-set on Ervin's motions. Subpoenas were issued for all witnesses of the state to appear for trial on August 25, 1981, upon which date the trial began.

 State's first witness was an agent of the Mississippi Bureau of Narcotics, Richard Oakes, who testified to the

 nature of the investigation. Agent Oakes further testified that he offered no promises of leniency to Burnette, that he observed Billy Ervin arrive and take a brown paper bag out of his car within two minutes after his arrival at Shakey's Pizza Parlor on the day in question. Oakes testified that he believed the substance in all the confiscated grocery sacks to have been marijuana based upon his experience and training as a narcotics' officer.

 Ervin moved, outside the jury's presence, to suppress the three bags which were confiscated from the back seat of his Honda automobile. *fn2 Agent Oakes testified in chambers that he had looked inside Ervin's car through the window, that the bags were in plain view, and that he reached into the car and took them. Ervin then argued three United States Supreme Court cases decided prior to United States v. Ross, ___ U.S. ___, 102 S. Ct. 2157, 72 L.Ed.2d 572 (1982), in support of his suppression motion on the ground that the bags were afforded full protection under the Fourth Amendment and they should not have been opened without a warrant since they were not seized pursuant to arrest. The motion was overruled.

 The state's expert witness, Joe Lee Williams, a forensic scientist with the Mississippi Crime Laboratory, testified that the substance found in the grocery bags was Cannabis Sativa L, based upon the tests he ran. Williams opined that the World Health Association was correct in holding that there was only one species of marijuana with several varietals. He noted that his tests resulted in positive detection of Cannabidial Tetrahydrocannabinol and cannabinol. *fn3 Williams would not agree that he could have been fooled by some non-cannabis plant being present and giving false positive results. He explained this fully. At the end of Williams' testimony, Ervin again moved to exclude the three bags of substance taken from his car. The motion was again denied.

 Ben David Burnette was the next state's witness. He testified that he had a job, was attempting to straighten out his life and that he decided to cooperate with law enforcement officers out of fear of a long term in jail. He hoped the information he gave would influence any future sentence he might receive. Then he detailed the steps leading up to the arrest of defendant Billy Ervin. On cross-examination, Burnette testified as to his various places of residence and employment over the past five years, his arrest record, his failure to file tax returns, and his past dealings with Ervin. He stated that he had arranged for a friend to buy marijuana from Ervin. Ervin's attorney

 steered away from this topic apparently being cautious not to torpedo his entrapment defense with predisposition testimony. Nevertheless, the state asked Burnette on redirect to tell when this transaction took place. Burnette recounted two occasions within the past three years, and stated that it ...


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