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LUKE MOORE v. STATE OF MISSISSIPPI

NOVEMBER 23, 1988

LUKE MOORE
v.
STATE OF MISSISSIPPI



EN BANC

ZUCCARO, JUSTICE, FOR THE COURT:

On May 16, 1986, appellant, Luke Moore, was convicted by a jury of possession of more than one kilogram of marijuana with intent to sell pursuant to Miss. Code Ann. 41-29-139 (a)(1) (1972). Moore was thereafter sentenced to serve a term of twenty-four (24) years in the custody of the Mississippi Department of Corrections and to pay a fine in the amount of $40,000.00, all in proceedings had in the Circuit Court of Panola County, Mississippi.

Luke Moore appeals asserting the lower court's refusal to grant a directed verdict as the only error. Moore points to the fact that the prosecution furnished and sold the marijuana to him. This, he argues, is entrapment as a matter of law and, therefore, the court should have directed a verdict of acquittal.

 The facts surrounding the drug transaction are not in dispute. The State did, in fact, supply the marijuana. The state's plan was to sell a forty-pound (40 lb.) bale of marijuana to Luke Moore, and once the sale had been consummated, to arrest him for possession with intent to sell. To enact the plan, the State arranged for an informant to offer the marijuana to Moore and then to arrange a meeting in order for Moore to pick up and pay for the marijuana. At the time of the exchange, the agents of the Mississippi Bureau of Narcotics would be present to arrest Moore. The plan went as intended and Moore was arrested.

 Luke Moore took the witness stand in his own behalf. He testified that he graduated from Coffeeville High School and then joined the U.S. Army where he spent two years in Germany. He also testified that he attended University of Mississippi where he only needed six hours to graduate with a

 psychology degree.

 Moore testified that the money he had to purchase the marijuana was his life savings he had saved while in the service and from jobs he had. Moore also admitted that he had been convicted (pleaded guilty) in 1977 of possession of marijuana. He said that he had not been involved in drugs again until the day he was arrested.

 Moore moved for a directed verdict and thereafter requested a peremptory instruction, asserting that since the State of Mississippi provided the marijuana, he was entrapped as a matter of law. The trial court denied the motion, and, as well, his post-trial motions for acquittal, and Moore appeals.

 Our law regarding the defense of entrapment has become confused and convoluted through various cases over the years. Consideration of the facts of this case and the law in this area suggest the need for clarification of this body of law which we attempt to provide.

 It is necessary that we review the relevant cases. In Tribbett v. State, 394 So.2d 878, 882 (Miss. 1981), we said:

 The usual entrapment case which arises under Mississippi law involves a confidential informant or police officer who originates the sale of contraband by supplying it to the accused, who then, acting in complicity with the confidential informant or police officer, sells or disposes of it to another officer or person who initiates the prosecution.

 422 So.2d at 291. See also Epps v. State, 417 So.2d 543 (Miss. 1982); Torrence v. State, 380 So.2d 248 (Miss 1980); and Sylar v. State, 340 So.2d 10 (Miss. 1976). However, the foregoing was not the scenario in the case sub judice. This case simply involved a sale of marijuana by the Bureau to Moore, the defendant. The bureau did not arrange to purchase the marijuana from the defendant once the defendant was in possession of the marijuana.

 We have quoted State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976) with approval on more than one occasion. Barnes v. State, 493 So.2d 313, 316 (Miss. 1986); Torrence v. State, 380 So.2d 248, 250 (Miss. 1982); Sylar v. State, 340 So.2d 10, 11-12 (Miss. 1976). In Talbot, as cited in Barnes v. State, 493 So.2d 313, 316 (Miss. 1986), the New Jersey Supreme Court held that:

 When an informer or other agent generally acting in concert with law enforcement authorities, furnishes a defendant with heroin for the purpose of arranging a sale of the heroin by the defendant to an undercover officer, which sale was then consummated, defendant was entrapped as a matter of law, even though predisposition to commit the crime may appear and notwithstanding that the ...


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