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IN THE COURT OF APPEALS 03/25/97 OF THE STATE OF MISSISSIPPI
NO. 94-KA-00932 COA

EXSO CHANDLER 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. MARCUS D. GORDON COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PAT DONALD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN DISTRICT ATTORNEY: KEN TURNER NATURE OF THE CASE: CRIMINAL: SALE OF COCAINE TRIAL COURT DISPOSITION: GUILTY: SENTENCED TO SERVE 25 YEARS IN THE MDOC

MANDATE ISSUED: 10/16/97

EN BANC: DIAZ, J., FOR THE COURT: Exso Chandler (Chandler), the Appellant, was convicted in the Scott County Circuit Court of sale of cocaine. Chandler was sentenced to serve twenty-five (25) years in the Mississippi Department of Corrections. Aggrieved from this judgment, Chandler appeals asserting the following issues: (1) that the lower court erred in failing to grant a directed verdict; (2) that the lower court erred in denying Chandler's proposed jury instruction on his entrapment defense; (3) that the lower court erred in overruling Chandler's objections to statements made by the State in its closing argument; (4) that the lower court erred in admitting statements into evidence and (5) that the lower court erred in admitting a tape into evidence. Finding no reversible error, we affirm the judgment. FACTS On May 25, 1993, Jimmy Nichols, an investigator with the City of Forest Police Department met with a confidential informant to set up a drug purchase. Nichols provided the informant with $20.00 and a tape recorder, and the informant was sent out with instructions to purchase crack cocaine from Exso Chandler. When the informant reached his destination, Chandler walked up to the vehicle. Chandler, who was an acquaintance of the informant, asked him what he was doing. The informant replied that he wanted to buy some rock, or cocaine. Chandler told him to "wait a minute" while Chandler went to a man standing a few feet away named Connie Hudson. Apparently, Chandler got the rock cocaine from Connie Hudson, and brought it back to the informant. At that point, Chandler gave the informant the rock cocaine, and in return, the informant handed Chandler $20.00. After the transaction, the informant turned over the rock cocaine to Officer Nichols. Nichols in turn submitted it to the Mississippi Crime Laboratory where it tested positive as cocaine. DISCUSSION DIRECTED VERDICT/ JURY INSTRUCTION Chandler argues that the trial court erred in refusing to grant him a directed verdict. The standard of review for criminal convictions and directed verdicts is to consider all the evidence in the light most favorable to the State. Nicholson v. State, 672 So. 2d 744, 752 (Miss. 1996). In the present case, Chandler argues that he had proven a case of entrapment as his defense. Chandler contends that the lower court should have granted jury instruction D-9 that provides his defense of entrapment. The trial judge denied this instruction stating that he did not believe that Chandler had established a case for entrapment. Our law on entrapment is well-settled. It has been defined as "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). The defense of entrapment is affirmative and must be proved by the defendant. Id. Before the defense can be raised, the defendant is required to show evidence of government inducement to commit the criminal act, and a lack of a

predisposition to engage in the criminal act before contact with the government agents. Id. (citations omitted). Whether an issue should be submitted to the jury is determined by whether there is evidence, which if believed by the jury, could result in a favorable resolution of the issue for the party requesting the instruction. On the other hand, only if the evidence is so one-sided that no reasonable juror could find for the requesting party on the issue at hand, may the trial court deny an instruction on a material issue. Id. Therefore, whether the entrapment defense should have been submitted to the jury depends on whether there is credible evidence in the record supporting this defense, that is, whether there was sufficient evidence that a rational jury might have found for Chandler on the entrapment issue. This Court has held that an entrapment instruction is not necessary where the defendant was merely asked to sell the substance and he was caught. Id. at 1231 (citations omitted). In the case at bar, as in the Walls case, Chandler was merely asked to sell cocaine to the informant, and he was caught. No one coerced or otherwise forced him to sell or deliver the cocaine to the informant. Therefore, we hold that the record failed to support a prima facie case of entrapment, and that the lower court did not err in refusing to submit this issue to the jury.

CLOSING ARGUMENT Chandler argues that the trial judge erred in allowing the prosecutor to make prejudicial comments during the State's closing argument. The statements to which Chandler is objecting are: I am not going to get up and jump and holler about the cocaine problem in Scott County. If you have read the paper, if you keep up at all, you are aware of it. I don't have to jump up and down about it. All I want to do is point out that if anything is going to be done about it, this is the room-Defense objection overruled. You know, the police can go out and beat the streets and try to do something about the problem, but if we don't take care of it in the jury room, then it's not going to be taken care of. Defense objection overruled. We have always given counsel wide latitude in their arguments to the jury. Taylor v. State, 672 So. 2d 1246, 1265 (Miss. 1996). Courts should be very careful in limiting the free play of ideas, imagery and the personalities of counsel in their argument to the jury. Id. at 1266. "The test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice." Id. at 1270. Any allegedly improper argument made by the State must be evaluated in context, taking into consideration the circumstances of the case when deciding the propriety of the comment. Davis v. State, 660 So. 2d 1228, 1248 (Miss. 1995).

Applying this test, it does not appear that there was reversible error in the present case. In the context of the entire record, we are unable to say that the comments made in the State's closing argument were of such substance as to have been capable of prejudicing Chandler to a fair trial. Therefore, we hold that the comments did not amount to reversible error. HENDERSON'S TESTIMONY Chandler's next argument is that the trial court erred in allowing the confidential informant to testify about statements Chandler made to him. The informant was allowed to testify that Chandler asked the informant to lie for him (Chandler). At the hearing for the motion, Chandler argued that the statement should not have been admissible because it would introduce to the jury evidence of other criminal activity, that is, Chandler trying to get the informant to commit perjury, and, that it was not given to the defense during discovery. We find this issue procedurally barred. According to the record, Chandler argued that he needed additional time to secure character witnesses to rebut the statement. The judge granted Chandler more time. When they returned after a break, Chandler made another motion regarding the admissibility of the tape made by the informant. Nothing further was said about the statements made by Chandler to the informant asking the informant to lie for him. The judge overruled the motion to exclude the tape, but apparently, no ruling was ever made on the original motion to exclude the statement. Furthermore, when the informant testified about the statements made to him by Chandler, no further objections were made by the defense. In Gayten v. State , the supreme court considered an objection waived when the defendant failed to seek a ruling on a specific objection. In that case, the trial judge simply instructed the State to "Go ahead." Gayten, 595 So. 2d 409, 413 (Miss. 1992). Because no definitive ruling was made, and no corrective action was requested, the objection was waived. Id. This is the scenario with the present case. Therefore, we find this objection waived, and find no merit to this issue. TAPE-RECORDED EVIDENCE Upon Chandler's insistence, defense counsel makes the final argument that the tape recording of the transaction between Chandler and the informant was inadmissible pursuant to

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