Johnny Cain Lott v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01726-COA
JOHNNY CAIN LOTT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
10/15/1999
HON. ROBERT G. EVANS
SIMPSON COUNTY CIRCUIT COURT
DANIEL DEWAYNE WARE
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
EDDIE H. BOWEN
CRIMINAL - FELONY
COUNT I - TRANSFER OF MORPHINE WITHIN 1500
FEET OF A PUBLIC PARK; AND COUNT II - TRANSFER
OF HYDROCODONE WITHIN 1500 FEET OF A PUBLIC
PARK SENTENCED TO SERVE AS TO COUNT I - A
TERM OF 10 YEARS IN MDOC, AS TO COUNT II - A
TERM OF 10 YEARS IN MDOC, SENTENCES TO RUN
CONCURRENTLY.
AFFIRMED - 10/16/01
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
11/27/2001
BEFORE KING, P.J., LEE, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Johnnie Cain Lott was convicted in the Circuit Court of Simpson County of two counts of transferring
morphine and hydrocodone, Schedule II controlled substances, within 1500 feet of a public park. Lott was
sentenced to ten years imprisonment on each count. The trial judge ordered the sentences to run
concurrently. Lott cites the following issue on appeal:
WHETHER THE CIRCUIT COURT ERRED IN DENYING LOTT'S MOTION FOR A
DIRECTED VERDICT.
Finding no merit, we affirm.
FACTS
¶2. On April 22, 1998, L.C. Cheeks, a narcotics agent, and Lewis Young, a confidential informant, drove
to McNair Springs Park to meet Johnnie Cain Lott. Young, who was acquainted with Lott, arranged the
meeting so Agent Cheeks could obtain evidence that Lott was engaged in the practice of selling illegal
prescription drugs.
¶3. When they arrived at the park, Agent Cheeks and Young remained in the car while Lott and Lott's wife
drove along beside them. Young introduced Lott to Agent Cheeks, and Agent Cheeks told Lott that he
wanted to buy some morphine tablets. Lott told Agent Cheeks that he only had two morphine tablets, but
said he had some lorcet tablets "to get rid of." Agent Cheeks purchased the morphine tablets from Lott for
$130. Young then told Lott that Agent Cheeks had an additional $300 to spend and wanted to buy more
drugs. Lott said he would contact his source in one hour and instructed Agent Cheeks and Young to call
him after that time to let him know which drugs they wanted to buy. At this point the conversation ended.
Agent Cheeks nor Young had any further conversations with Lott. An audiotape of the above transaction
was introduced into evidence.
¶4. At trial, Lott claimed that he was entrapped. He testified that he and Young were close acquaintances
and that he had previously sold drugs for Young. Lott also testified that he had performed odd jobs for
Young and that Young gave him cocaine as payment. Lott argued that Young supplied the drugs sold to
Agent Cheeks. He testified that Young instructed him not to divulge the source of the drugs to Agent
Cheeks because Agent Cheeks would expect a special price if he knew Young was the supplier because
the two men were old friends.
¶5. Lott's mother and a friend testified on his behalf. Both admitted that Lott used drugs, but denied having
any knowledge that Lott sold drugs. On cross-examination, Lott admitted he had been indicted on two
other charges for selling illegal drugs. Agent Cheeks testified that he saw Lott at another illegal drug
transaction and that he observed Lott at a house during a drug raid.
LAW AND ANALYSIS
DID THE CIRCUIT COURT ERR IN DENYING LOTT'S MOTION FOR A DIRECTED
VERDICT?
¶6. Lott argues that the trial judge erroneously denied his motion for a directed verdict because Lott
presented undisputed evidence of entrapment. Lott contends that the State did not rebut his testimony that
Young supplied him with the drugs sold to Agent Cheeks. Lott also argues that the State did not establish
that he had a predisposition to commit the offense. Lott claims that this was a classic "supply and buy"
scenario which has been condemned by the Mississippi courts because it constitutes entrapment.
¶7. Our entrapment law is well settled. Entrapment is "the act of inducing or leading a person to commit a
crime not originally contemplated by him, for the purpose of trapping him for the offense." Walls v. State,
672 So. 2d 1227, 1229 (Miss. 1996). Entrapment is an affirmative defense which the defendant must
prove. Before the defendant may raise the defense, he must show evidence that the government induced
him to commit the criminal act, and that he was not predisposed to engage in the criminal act before contact
with the government agents. Id. A defendant is considered predisposed if he is "ready and willing to commit
the crimes such as are charged in the indictment, whenever opportunity was afforded." Moore v. State, 534
So.2d 557, 559 (Miss. 1988). If the accused is predisposed to committing the criminal act, his defense will
fail. Id.
¶8. When a defendant alleges that the law enforcement officers supplied the drugs used in the drug
transaction, prosecutors must have rebuttal evidence at hand to refute such testimony. Pulliam v. State,
592 So. 2d 24, 27 (quoting Gamble v. State, 543 So. 2d 184, 185 (Miss. 1989)). The State successfully
rebutted Lott's "supply and buy" claim. Lott's claim that the confidential informant was also the supplier is
contradicted by the testimony of Agent Cheeks and the audio-tape of the transaction. Lott clearly told the
confidential informant and Agent Cheeks that he would "have to call his source," which strongly implies that
his source was not present at the transaction. The State also offered evidence to show that Lott was
predisposed to this crime. Specifically, Agent Cheeks testified that he saw Lott at another drug transaction
and at a house raid. Lott also admitted on the stand that he had been indicted for two other drug sales.
¶9. Sufficiency questions are raised in motions for directed verdict and in JNOV motions. McClain v
State, 625 So. 2d 774, 778 (Miss. 1993). Where a defendant moves for JNOV or a directed verdict, the
trial court considers all of the credible evidence consistent with the defendant's guilt, giving the prosecution
the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is
authorized to reverse only where, with respect to one or more of the elements of the offense charged, the
evidence is such that reasonable and fair minded jurors could not find the accused guilty. Wetz v. State,
503 So. 2d 803, 808 (Miss. 1987). Accepting all credible evidence consistent with Lott's guilt as true, we
find there was sufficient evidence to support the conviction and Lott did not establish the defense of
entrapment.
¶10. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT OF CONVICTION
OF COUNT I TRANSFER OF MORPHINE WITHIN 1,500 FEET OF A PUBLIC PARK AND
SENTENCE OF TEN YEARS; COUNT II TRANSFER OF HYDROCODONE WITHIN 1,500
FEET OF A PUBLIC PARK AND SENTENCE OF TEN YEARS, ALL TO BE SERVED IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH
SENTENCES TO RUN CONCURRENTLY IS AFFIRMED. COSTS ARE ASSESSED TO THE
APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, LEE, AND MYERS, JJ., CONCUR. IRVING,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J.,
AND THOMAS, J. BRANTLEY, J., NOT PARTICIPATING.
IRVING, J., DISSENTING:
¶11. With due respect for the majority, I must respectfully dissent from its finding that the State successfully
met its burden to rebut Lott's testimony that the drugs he was convicted of selling were supplied by the
confidential informant, Lewis Young, who did not testify in this case. It necessarily follows, that I believe the
trial court committed reversible error when it denied Lott's motion for a directed verdict and that the
majority perpetuates the error by affirming the decision of the trial court.
¶12. Lott testified that he was a drug addict who, from time to time, did odd jobs for Young in order to
support his drug habit. According to Lott's testimony, Young, a convicted drug dealer, sometimes paid him
in cash for the odd jobs, while at other times he would pay him with drugs, specifically cocaine.
¶13. Lott testified that Young provided him with the drugs to sell to Agent Cheeks. Lott further testified that
Young gave specific instructions to him regarding how to handle the sale to Cheeks. The record contains the
following relevant testimony on this point:
Q. Okay. Now, let me ask you about Mr. Young. Did he [Young] ever ask you to deal drugs for
him?
A. Not as far as the cocaine he didn't, but he asked me to sell the narcotics he had. He said because
if the people -- the guy, I take it, was L. C. Cheeks was supposedly a guy he went to school with is
what he told me and that if he knew they was [sic] his drugs, he wouldn't be able to get top dollar for
them and to not mention anything about cocaine or crack cocaine around him.
MR. FORTENBERRY: Judge, I would object to the relevance and any hearsay.
THE COURT: Well, avoid the hearsay, but I think its relevant enough.
BY MR. WARE:
Q. Okay. Mr. Lott, let's talk about the alleged offense we are talking about today. All right. Do you
remember when the alleged transaction took place on April 22nd, 1998?
A. Yes, sir.
Q. Okay. Where had you been that day?
A. Me and my wife -- we had both been to Lewis -- I believe it was the Exxon station and he said
that his friend -- because he had done got my younger brother, the one in the wheelchair and his step
brother, he had done got them to do it a time or two. And he said Cain -MR. FORTENBERRY: Object to hearsay.
THE COURT: I'm going to let him answer that since it involves the C.I. Go ahead.
A. He said -- he said, "Here's you a chance to make you some cocaine." He said, "I need you to do
this for me. That way we can stay slick on all of our stuff." And I said, "Well, what is it you want to
do?" And he had the two morphines and the fourteen Lorcet l0s, and he said, "I'll call you in a little bit
and tell you where to meet me at. I'll have the guy with me who's wanting to buy them."
Q. What happened next?
A. Me and my wife -- I forget if it was at my brother's house or my house -- but anyway, went home,
because we stayed, you know, in both places. And he called, which wasn't too much longer after we
had met him, and said to meet him at McNair Springs at 4:30.
Q. With what?
A. With the pills that he had brought and said not to take less than $130.00 for them and that after the
transaction was made, he would come back by the house and bring us our cocaine and pick the
money up, which he did.
****
Q. Now, why was Lewis saying you need to make the transfer instead of him since he was right there
in the truck?
A. He was saying that his friend he went to school with -- because that's what I knowed [sic] him as.
Mr. Cheeks -- I knowed [sic] him as really a guy that Lewis went to school with in Yazoo City and
that if he knew they were Lewis' or coming from Lewis that he would want Lewis to give them to him
at a cheaper price.
Q. All right. Did you get the money from Mr. Cheeks?
A. Yeah.
Q. What did you do with the money?
A. I held it until Lewis come pick it up.
Q. So, did you ever financially benefit from it?
A. No.
Q. You never kept any of the money?
A. No.
Q. Well, what would Lewis do for you for doing all of this stuff?
A. It was usually fifty to a hundred dollars' worth of crack, rock cocaine.
¶14. Clearly this testimony by Lott established, unless rebutted by the State, that the drugs he sold to Agent
Cheeks were supplied to him by confidential informant Lewis Young. The majority finds that the State
successfully rebutted Lott's assertion that the drugs were supplied by the confidential informant. This is what
the majority says:
The State successfully rebutted Lott's "supply and buy" claim. Lott's claim that the confidential
informant was also the supplier is contradicted by the testimony of Agent Cheeks and the audio tape
of the transaction. Lott clearly told the confidential informant and Agent Cheeks that he would "have
to call his source," which strongly implies that his source was not present at the transaction. The State
also offered evidence to show that Lott was predisposed to this crime.
Majority Opinion at page 4.
¶15. I agree with the majority that evidence of Lott's predisposition to sell drugs was presented to the jury.
However, in my judgment, there is no basis in the record of this case to find or conclude that Lott's story as
to the source of the drugs was rebutted by the State; neither Agent Cheeks nor Officer Crawford did, or
could, rebut Lott's story. That had to be done by the confidential informant who did not testify during the
trial. The majority reads far too much into Lott's recorded statement that he had to call his source. Given
Lott's testimony at trial, it does not follow that this recorded statement was a reference to someone other
than Lewis Young.
¶16. There is ample authority in this State that in "supply and buy" cases, the State's failure to rebut the
defendant's testimony that the contraband was supplied by an agent of the State entitles the defendant to a
directed verdict. Bosarge v. State, 594 So. 2d 1143, 1146 (Miss. 1991); Gamble v. State, 543 So. 2d
184, 185 (Miss. 1989); Jones v. State, 285 So. 2d 152, 158-60 (Miss. 1973). Therefore, because the
State failed to rebut Lott's testimony that the contraband was supplied to him by Lewis Young, a convicted
drug dealer and confidential informant for the State, I would reverse and render Lott's conviction.
SOUTHWICK, P.J., AND THOMAS, J., JOIN THIS SEPARATE OPINION.
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