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RANDY J. AVERY v. STATE OF MISSISSIPPI

JUNE 28, 1989

RANDY J. AVERY
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, SULLIVAN AND ANDERSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

The appellant, Randy J. Avery, was tried in the Circuit Court of Webster County, Mississippi, on a charge of selling more than one (1) ounce, but less than one (1) kilogram, of marijuana in violation of M.C.A. 41-29-139 (a)(1)(b)(2) (Supp. 1984). Avery was convicted and sentenced to six (6) years in the custody of the Mississippi Department of Corrections, two years of the sentence to be served concurrently with Avery's sentence for another conviction, and four years to be served consecutively to the other sentence. Avery was also ordered to pay a fine of $5,000. From this conviction and sentence, Avery appeals.

 STATEMENT OF THE FACTS

 On January 22, 1985, Ken Coleman, an agent of the Mississippi Bureau of Narcotics, *fn1 went to the home of Jesse Williams, a confidential informant for the Bureau, to make an undercover purchase of marijuana from the appellant, Randy Avery. Williams and Avery had been close friends for several years; however, Williams, who claimed that he wanted to do something about the drug problem in Webster County, had agreed earlier in January to try to persuade Avery to purchase some marijuana for a "friend" of Williams who would soon be coming through Webster County. That "friend," of course, was Agent Coleman.

 When Coleman arrived at Williams' house at about 6:30 p.m., only Williams was there. About 20 minutes later Avery arrived with a zip-top bank bag in which was a plastic bag containing approximately a quarter-pound of marijuana. According to Agent Coleman, he took the marijuana and gave Avery $275 (taken from State funds) in payment therefor. Coleman then took the marijuana and left.

 About two months later, on March 19, 1985, Avery was arrested in Webster County and charged with several drug-related felony offenses. On May 6, 1985, Avery was indicted by the Webster County Grand Jury on a charge of selling more than one ounce, but less than one kilogram, of marijuana to Agent Coleman on January 22, 1985.

 In November of 1985, Avery was tried on a separate charge - that of selling more than one ounce of marijuana to State Narcotics Agent Coleman on February 27, 1985, about a month after the charge in the instant case. That trial ended in a mistrial. At his second trial on that charge in May of 1986, Avery was convicted and sentenced to five years in the custody of the Mississippi Department of Corrections. This Court affirmed Avery's conviction and sentence on that charge in Avery v. State, No. 58022, slip op. (Miss. November 2, 1988) (available on Westlaw No. 116969).

 After several continuances, trial was called in the instant case on February 27, 1987. A jury found Avery guilty of selling more than one ounce of marijuana to Ken Coleman on January 22, 1985. Avery's motion for a new trial or, alternatively, for judgment notwithstanding the verdict, was overruled on March 16, 1987. Avery was sentenced to six years in the custody of the Mississippi Department of Corrections, two years of the sentence to be served concurrently with Avery's sentence for the previous conviction, and four years to be served consecutively to the other sentence. Avery was also ordered to pay a fine of $5,000.

 From this conviction and sentence, Avery appeals, assigning three errors in the proceedings below. Only one of these assignments requires discussion.

 DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE APPELLANT AN INSTRUCTION ON ENTRAPMENT?

 Avery's counsel advised the jury during voir dire that Avery intended to present a defense of entrapment. Counsel then attempted to voir dire the jury on the entrapment offense, but the trial judge would not allow him to do so.

 Throughout the trial, Avery attempted to establish a defense of entrapment. In cross-examining State Narcotics Agent Ken Coleman about the confidential informant Jesse Williams, Avery's counsel asked: "And you don't know what was hanging over [the informant's] head or how you could get him to go about trying to get some [marijuana] for you?" The State's attorney objected to this line of questioning ...


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