                  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.
