IN THE COURT OF APPEALS 3/25/97

OF THE

STATE OF MISSISSIPPI

NO. 94-KA-01007 COA

MARGARET COOKS A/K/A MARGARET COOK

APPELLANT

 v.

 STATE OF MISSISSIPPI

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOHN L. HATCHER

COURT FROM WHICH APPEALED: CIRCUIT COURT OF QUITMAN COUNTY

ATTORNEY FOR APPELLANT:

DAVID L. WALKER

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: LAURENCE MELLEN

NATURE OF THE CASE: CRIMINAL: SALE OF CONTROLLED SUBSTANCE

TRIAL COURT DISPOSITION: CONVICTED ON TWO COUNTS OF THE SALE OF

CONTROLLED SUBSTANCE AND SENTENCED TO 20 YEARS ON COUNT ONE AND 20

YEARS CONSECUTIVE ON COUNT TWO
BEFORE BRIDGES, P.J., DIAZ, AND KING, JJ.

KING, J., FOR THE COURT:

 Margaret Cooks was convicted in the Circuit Court of Quitman County for the sale of crack cocaine.

Aggrieved, Cooks appeals her conviction alleging the following errors: (1) the trial court erred in

denying a motion for a directed verdict; (2) the verdict was against the overwhelming weight of the

evidence; (3) the trial court erred in denying her objections to the State’s peremptory challenges of

prospective jurors; and (4) the trial court erred in denying proposed peremptory and cautionary

instructions to the jury. Finding her arguments to be without merit, we affirm the trial court’s

disposition of the case.

FACTS

On March 8, 1994, George Davis, a confidential informant, met with Leon Williams, an agent of the

Mississippi Bureau of Narcotics, and provided him a list of names of persons Davis believed to be

selling drugs. Margaret Cooks was named on this list and became the target of a drug investigation

conducted by Agent Williams. As part of this investigation, Williams equipped Davis with a body

transmitter, recorder, and forty dollars to make a drug buy from Cooks. Davis saw and stopped

Cooks on the road near her home. Davis testified that he asked Cooks if she was "holding", and she

told him, "Yes." Davis also testified that he then asked Cooks if she had "two twenties", to which she

answered, "Yes." Davis gave Cooks the forty dollars previously given to him by Agent Williams to

make the drug buy. In return, Cooks gave Davis two rocks of crack cocaine. She told Davis that

because the rocks were small she would get him more if he would come to her home within fifteen

minutes. Davis did just that, and Cooks provided him with a third rock of crack cocaine.

Cooks was arrested and indicted on two counts of the sale, transfer, or delivery of a controlled

substance in violation of section 41-29-115(A)(a)(4), of the Mississippi Code. She was later

convicted and sentenced to serve a term of twenty years (20) for each count, the second term running

concurrently with the first. Aggrieved, Cooks now appeals to this Court.

I.

THE TRIAL COURT ERRED IN DENYING MOTIONS FOR A DIRECTED

VERDICT AND A NEW TRIAL.

In this appeal, Cooks challenges both the sufficiency and the weight of the evidence introduced in her

trial. Although Cooks presented these assignments of error as separate issues, we have chosen to

combine issues I and II in our disposal of them.

Our standard of review for a challenge to the sufficiency of the evidence, in a criminal case, can be

found in Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987):

We must, with respect to each element of the offense, consider all of the evidence--not

just the evidence which supports the case for the prosecution--in the light most favorable
to the verdict. The credible evidence which is consistent with the guilt must be accepted as

true. The prosecution must be given the benefit of all favorable inferences that may

reasonably be drawn from the evidence. Matters regarding the weight and credibility to be

accorded the evidence are to be resolved by the jury. We may reverse only where, with

respect to one or more of the elements of the offense charged, the evidence so considered

is such that reasonable and fair-minded jurors could only find the accused not guilty.

Cooks argues that because she used the forty dollars that Davis paid her to purchase the additional

crack cocaine, which provided the basis for count II of the indictment, the court should have granted

her motion for a directed verdict. In short, Cooks claimed that she was entrapped by the confidential

informant. In support of this argument, Cooks seeks to analogize her sale of crack to Davis to a

reverse sale transaction, which our Supreme Court ruled on in Barnes v. State, 493 So. 2d 313 (Miss.

1986).

In Barnes v. State, the defendant asserted the affirmative defense of entrapment to his indictment for

conspiracy to possess marijuana with the intent to distribute. Id. at 314. Barnes argued to the court

that state agents had supplied the marijuana to him and his colleagues and that the state agents

instigated his involvement in the crime. Id. at 314-15. The court agreed saying that the defendant’s

predisposition to commit the crime was instigated by the officers and such action constituted a

reverse sale, which embraced the requirements and definition of entrapment. Id. at 316.

The Mississippi Supreme Court has defined entrapment as "inducing or leading a person to commit a

crime not originally contemplated by him, for the purpose of trapping him in its commission and

prosecuting him for the offense." Id. at 315. The court has also said that "an accused cannot rely on

the fact that an opportunity was intentionally given him to commit a crime, which originated in the

mind of the accused." Id. In the case sub judice, Cooks would have us find that her sale of crack to

Davis was a reverse sale, because the forty dollars paid to her earlier by Davis was used to purchase

the third rock of crack. We decline to so find.

Looking at the credible evidence that is consistent with Cooks’ guilt, we find that Davis only set the

stage for Cooks to commit the crime. Davis stopped Cooks on the road and asked her if she was

"holding." Cooks said yes and proceeded to exchange the rocks of crack cocaine for $40.00. This is

indicative of Cooks’ predisposition to commit the crime. We do not find any acts of cajoling, or

inducement on the part of Davis. The fact that Davis returned to Cooks later for completion of his

purchase does not create a reverse sale. Therefore, we cannot find that Cooks had so conclusively

established the defense of entrapment to the extent that reasonable and fair-minded jurors could only

find her not guilty.

Having found the evidence legally sufficient to support the verdict, we find that the verdict was not

against the overwhelming weight of the evidence; therefore, the trial judge did not abuse his

discretion in failing to grant the Defendant’s motion for a new trial

 II.

THE TRIAL COURT ERRED IN DENYING COOKS’ OBJECTIONS TO THE

STATE’S PEREMPTORY CHALLENGES OF PROSPECTIVE JURORS.
The State exercised five of its peremptory challenges against African-American veniremen excluding

them from the jury. Cooks raised a Batson challenge to the State’s action, and the trial court ordered

the State to articulate race and sex neutral reasons for its strikes. The State provided the following

reasons for its strikes:

#23-- Rodney Applewhite’s brother was convicted of murder in 1991, and he has relatives

involved in the sale of narcotics; #25--Catherine Emerson is Agent Williams’ great aunt,

and Agent Williams had previously arrested some of her grandchildren; #31--John L.

Cannon had a relative incarcerated on rape charges at the time of trial; #39--Mack Charles

Stewart had a close friend who was recently convicted for drug crimes; and #40--Sammie

Lee White had an anti-law enforcement, or anti-government attitude, and he had a relative

serving time in the county jail.

Once the prosecution establishes race-neutral reasons for exercising its peremptory challenges, the

defendant can then rebut those reasons as pretextual. Bush v. State, 585 So. 2d 1262, 1267 (Miss.

1991). If the defendant fails to rebut, the court will examine the State’s reasons only. Id. In the

present case, Cooks offered rebuttal reasons for only one State challenged venireman--Sammie Lee

White. The proffered rebuttal had nothing to do with race, sex, or age. Rather, Cooks believed that

White’s attitude might be important considering the defense in the case was that of entrapment, or

government authorities overreaching their authority.

Our review of the record, shows that the trial judge found each of the State’s reasons sufficiently

race, sex, and age neutral. Cooks failed to establish a single prohibited discriminatory motive in the

State’s use of its peremptory challenges. Therefore, we find that the trial judge properly allowed each

of the State’s peremptory challenges.

III.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S PROPOSED

PEREMPTORY AND CAUTIONARY INSTRUCTIONS.

Cooks requested the trial court to submit peremptory instruction D-1 to the jury, which instructed

the jury to return a verdict for her on both counts of the indictment. Under this allegation of error,

Cooks again challenges the sufficiency of the evidence, however, having addressed and resolved this

question in issue I, we will not revisit it.

The trial judge also refused to grant D-3, a cautionary instruction, concerning Cooks prior conviction

for the sale of marijuana. The trial judge stated that, he found no reason to make unwarranted

comments about the effect of evidence that had been admitted by agreement of the parties. The rule

in Mississippi has long been that the granting of cautionary instructions is within the discretion of the

trial judge. Brown v. State, 173 Miss. 542, 560 (1935). We will not disturb the judge’s decision

absent an abuse of that discretion.

Cooks claims that the trial judge abused his discretion by not granting the cautionary instruction

because the State had not clearly proven her guilt. Defendant’s cautionary instruction, D-3, read as

follows:
Evidence has been introduced in this case that the Defendant, Margaret Cooks, has been

convicted of the crime of sale of a controlled substance, marijuana, on March 12, 1986, in

the Circuit Court of Quitman County, Mississippi. The court instructs you, the jury, that

you are not to consider this conviction as evidence of the guilt of the Defendant in the

case now before you, except that you may consider proof of the aforesaid conviction as

evidence of the Defendant’s predisposition to commit the crimes charged.

The State argues that no abuse of discretion occurred since the Defendant made no objection to the

evidence of her prior conviction being presented to the jury. The State further argues that it had an

obligation to show that Cooks had a criminal predisposition in order to rebut the claim of entrapment.

We agree with the State. While we think the trial judge would have made a better record by granting

the cautionary instruction, we also believe that in light of the evidence weighed against the Defendant

the verdict would not have differed. The jury had before it a taped recording of the drug buy between

Cooks and the confidential informant, George Davis. Testimony in the record revealed that Davis

asked Cooks if she was holding any drugs. Cooks replied, "yes", and then, Davis asked if she had two

twenties. Cooks again replied, "yes." From this evidence alone the jury could conclude that Cooks

was predispositioned to commit the crime. Therefore, because we find no prejudicial effect upon

Cooks disposition, we find that the trial judge’s refusal to grant the instruction does not rise to the

level of abuse of his discretion. We affirm.

THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF

CONVICTION OF TWO COUNTS OF THE SALE OF A CONTROLLED SUBSTANCE

AND SENTENCE OF 20 YEARS ON COUNT ONE TO BE SERVED CONSECUTIVELY

WITH ANY AND ALL SENTENCES PREVIOUSLY IMPOSED AND SENTENCE OF 20

YEARS ON COUNT TWO TO BE SERVED CONCURRENTLY WITH SENTENCE IN

COUNT ONE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, AND FINE OF $1,000 ON EACH COUNT IS AFFIRMED. COOKS IS

ALSO ORDERED TO FORFEIT HER DRIVER’S LICENSE FOR SIX (6) MONTHS.

COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,

PAYNE, AND SOUTHWICK, JJ., CONCUR.