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KENNETH HOWARD v. STATE OF MISSISSIPPI

APRIL 08, 1987

KENNETH HOWARD
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This is a criminal appeal from Hinds County wherein Kenneth Howard was convicted of bribery and sentenced to ten (10) years in Parchman. Howard was accused of offering a bribe to Officer Bob Campbell in return for Campbell's assistance in dropping pending charges against Howard. Howard was arrested shortly after he placed $10,000 in a

location for Campbell to pick up. The alleged bribery and arrest took place on January 27, 1984.

 Prior to the trial, the State sought and received a Motion in Limine excluding a taped conversation secretly recorded by the defendant on March 12, 1984, during a" stop and frisk. "The jury found Howard guilty as charged.

 On appeal, Howard asserts that the trial judge, in not allowing his tape to be played, deprived him of effectively showing his defense of entrapment. Howard also contends that the jury instructions were insufficient and the verdict of the jury was contrary to the overwhelming weight of the evidence. For the reasons set forth, we affirm.

 FACTS

 On January 3, 1984, Howard, his wife, Ronald Lee, Donald Lee and several other unknown persons were indicted on charges of conspiracy to possess marijuana with the intent to distribute same.

 On January 27, 1984, at approximately 8:00 a.m., Officer Campbell and Officer Ricky Moon were having coffee at a restaurant and Campbell received a call from headquarters over Moon's walkie talkie. Campbell placed a call to the police station and talked to Officer Steve Rochester. Sgt. Rochester related that Kenny Howard was at the station and wanted to speak with him. Officer Campbell spoke with Howard, who requested to see him, and a meeting was arranged for 1:00 p.m. that day in Campbell's office. According to Howard, he came to the station at 8:00 a.m. because he had received word that Officer Campbell wanted to see him.

 Campbell arrived at his office that afternoon where Howard was waiting for him in the hallway. Campbell testified that he went into the office, engaged in some conversation, and Howard stated he was there to talk about the case pending against him. Campbell indicated that if Howard informed on other drug dealers, he might receive some consideration. According to Campbell, Howard then began to talk about getting his case taken care of, and indicated that he would pay money to get the charge dismissed.

 Campbell testified that Howard indicated that he would give him $10,000 that day (January 27) and on the following day a $20,000 payment would be given after his charges were dismissed. Another $30,000 payment would be made six months from that date, and from then on 50% of Howard's drug business would be paid to Campbell if Campbell could insure

 that the narcotics officers would not bother him and let him continue to operate. Howard told Campbell it would take him approximately 30 minutes to get the money, and Campbell agreed to accept Howard's offer.

 After Howard left to get the money, Officer Campbell immediately alerted Officer Moon and Chief Black as to Howard's offer. When Howard returned with the money, Officer Campbell was wearing a bugging device, with Officer Moon listening to the conversation in an adjoining office. Howard advised Campbell that he wanted a friend of his released from Parchman, and he wanted three traffic tickets taken care of, giving Campbell the tickets. The two men then discussed where the delivery of the money would take place. Howard told Campbell he would leave it under the wheel of his vehicle, and that when Campbell approached the car he would drive away and leave the money lying on the street. Campbell agreed to this, and the delivery took place as planned. Shortly thereafter, Campbell recovered a paper bag with $10,000 in it and Howard was apprehended. The delivery of the money was observed by Officer Moon and Chief Black.

 Howard testified on his behalf that he went to the police station at 1:00 p.m. like Campbell had ordered him. Howard testified he told Campbell he was charged with a crime he had nothing to do with, and asked Campbell what did he want from him. According to Howard, Officer Campbell then decided that if Howard wanted the charges dropped, he would have to give him some money. Howard stated Campbell wanted $30,000, and to bring him $10,000 the next day. Howard admitted that he gave Campbell $10,000, but insisted that he was merely following Campbell's instructions.

 On March 12, 1984, Howard and his friends were standing outside the Crystal Palace Pool Hall, a business formerly owned by Howard and then operated by his brother-in-law. In response to a complaint, police officers confronted the group and told them to get off the street. Officer Campbell conducted a" frisk "on several group members and warned Howard to stay off the street or he would be in trouble. During this time Howard surreptitiously recorded the confrontation by way of a micro-cassette in his jacket pocket.

 At trial, Howard asserted the defense of entrapment, stating that as a result of police harassment, coercion, and police overzealousness, he was induced to pay Officer Campbell the $10,000. Howard now seeks to have the tape admitted as evidence of police harassment. The State, however, successfully had the tape excluded because the

 incidents on the tape took place one and a half months after the bribery. The trial judge excluded the tape on the ...


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