BEFORE DAN M. LEE, P.J.; PRATHER AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This sale of marijuana case presents a variation on the
familiar theme of entrapment. The case turns not on whether there was evidence which may have convinced the jury to reject the entrapment defense - for surely there was such evidence. Our concern is that the jury was not instructed on the law of entrapment. AS there was also in the record credible evidence which, if believed, may have justified an acquittal on grounds of entrapment, the trial court should have granted defendant's request for an instruction on the point. Because instead it denied the instruction, we reverse and remand.
The witnesses for the prosecution tell the story essentially as follows: Several times prior to November 14, 1985, Joyce Clouse (Clouse) talked to the Winona Chief of Police, John Johnson (Johnson), about becoming an informant. Clouse told Chief Johnson that she never used drugs, was opposed to drug use, and that she saw and heard people selling drugs and wanted to help stop it. At that time there were no charges pending against Clouse and she was not under suspicion for any crime.
On Thursday, November 14, 1985, two Mississippi Bureau of Narcotics employees, Agent Michael Dean Gibbs (Gibbs) and Lt. Douglas Cutrer (Cutrer), together with Chief Johnson, met Clouse at a softball park in Winona. Clouse was going to take Gibbs to a house she shared with Sharon Allen (Allen) at 806 Speedway, Winona, and introduce him as a friend from Oklahoma. Agent Gibbs was wearing a body bug. Gibbs and Clouse drove to 806 Speedway, while Cutrer and Johnson parked approximately 100 yards away and tape-recorded the transaction.
Johnny King (King), Defendant below and Appellant here, pulled into the driveway just in front of Clouse and Agent Gibbs. King pulled out a brown paper sack from behind the driver's seat on the back floorboard and the three went inside.
King and Gibbs went to a bedroom. King offered Gibbs a half a pound of marijuana for $600.00. Gibbs, who only had $500.00, stated that he: went to the kitchen where Clouse gave him an empty bag; returned to the bedroom and put a handful or so of the marijuana in the second bag; kept the first paper sack; and paid King $500.00.
King testified that he was entrapped. He stated that Clouse had been bugging him for months to sell her some marijuana. He claimed that he finally gave in to her persistent demands. He denied that he had ever sold marijuana before and denied that he had any pre-disposition to sell. On cross-examination, King admitted that he had bought the
marijuana in Texas sometime earlier for his own consumption and that he had paid $500.00 for it. He was, therefore, going to make a $100.00 profit off of the sale to Gibbs. King also admitted that as Gibbs was leaving King told him "If you're ever down this way again and need something, let me know."
Lt. Cutrer listened to and recorded the transaction as it was transmitted from Gibbs' body bug. Clouse was paid $200.00 for her services.
Agent Gibbs kept the marijuana locked in his trunk until Monday, November 18, 1985, when he sent it to the Mississippi Crime Laboratory in Batesville. Joe Lee Williams, Jr., (Williams), Associate Director of the Crime Lab, tested and weighed the substance and determined that it was 104.4 grams of ...