SECTION 1 - COLQUITT
583 So. 2d 990 (Ala. Crim. App. 1991)
The appellant, Don Wayne Smith, was convicted of the unlawful distribution of a controlled substance. * * * He was sentenced to five years in the state penitentiary.
The evidence tended to show that late in the summer of 1989, Lynn Holloway, a long-time friend of the appellant, became an informant for the Wadley Police Department. Around the first week in September 1989, Holloway ran into the appellant and told him that he wanted to buy some cocaine. The appellant showed Holloway what was later determined to be 3.040 grams of cocaine. Holloway testified that he tried to buy the cocaine but that the appellant "wouldn't deal." Later, Holloway went to the appellant's parent's house but the appellant did not want "to fool with it" there. On the following day, Holloway saw the appellant at a convenience store and they agreed to meet at Hardee's restaurant later in the day so that Holloway could purchase the cocaine.
When the appellant arrived at Hardee's, Holloway introduced him to two men who were actually employed as police officers for the city of Oxford. The appellant ate a hamburger and then said, "Well, let's go outside." The four went outside and got into Holloway's car. Sergeant Hatton (one of the police officers) and the appellant negotiated a price of $650 for a half ounce of cocaine. The appellant then said, "Well, all I brought was an eight ball." ("Eight Ball" = one-eighth of an ounce.) They then negotiated a price for an "eight ball," at which time the appellant said, "What you can do is buy this eight ball and we'll arrange a meeting place that we can sell you the rest of it so it will be half an ounce." They agreed on a price and the place to meet. The appellant then reached into his shirt pocket and pulled out a plastic bag of white powder. Sergeant Hatton gave the appellant $180 and completed the transaction. The appellant was subsequently arrested.
* * *
The appellant also contends that the trial court erred when it refused to charge the jury on the defense of entrapment.
"Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 2d 413 (1932). In Davis v. State, 570 So. 2d 791 (Ala. Crim. App. 1990), this court stated:
"Alabama courts follow the so-called subjective approach when deciding whether there is evidence to support an entrapment defense. * * *
"A two-step test is used under the subjective approach: the first inquiry is whether or not the offense was introduced by a government agent; and the second is whether or not the defendant was predisposed to commit the type of offense charged. A defendant is considered predisposed if he is "ready and willing to commit the crimes such as are charged in the indictment, whenever the opportunity was afforded." If the accused is found to be predisposed, the defense of entrapment may not prevail. The predisposition test reflects an attempt to draw a line between "a trap for the unwary innocent and the trap for the unwary criminal." The emphasis under the subjective approach is clearly upon the defendant's propensity to commit the offense rather than on the officer's misconduct.* * *"
The governing principles on the issue of entrapment are * * *:
"A defendant who seeks to raise a defense of entrapment must first come forward with evidence sufficient to raise a jury issue that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.' A defendant will be considered to have met this burden if he produces any evidence' that governmental conduct created such a risk, but evidence that the government agent sought out or initiated contact with the defendant, or was the first to propose the illicit transaction, has been held to be insufficient to meet the defendant's burden. The defendant must demonstrate not merely inducement or suggestion on the part of the government but an element of persuasion or mile [sic] coercion.' The defendant may make such a showing by demonstrating that he had not favorably received the government plan, and the government had to push it' on him, or that several attempts at setting up an illicit deal had failed and on at least one occasion he had directly refused to participate. When the defendant makes such a showing, the burden shifts to the government to demonstrate beyond a reasonable doubt that the defendant was predisposed to commit the offense charged. In demonstrating predisposition, the government is not restricted to using past offenses or reputation evidence. Evidence of predisposition may also include the readiness or eagerness of the defendant to deal in the proposed transaction, or post-crime statements such as if you need more, I'll be here.'" [citations omitted]
Clearly, the appellant presented sufficient evidence of government inducement to prima facie establish entrapment. Both the appellant and the informant testified that on at least two occasions the appellant refused to participate in an illegal drug transaction. However, the State also met its burden of proving that the appellant was predisposed to commit the offense. That was done when Sergeant Hatton testified as follows:
"He [the appellant] told us, he said, What you can do is buy this eight ball, and we'll arrange a meeting place that we can sell you the rest of it so it will be a half an ounce.' And we negotiated back and forth and finally agreed on a hundred and eighty dollars. We agreed on a place to meet, [which] was somewhere near the river or near the lake back up the road. We also gave him a phone number that we told him we said, Well, you can call us then, and we will come on back down later on tonight and do it.' And so that was agreed on."
Therefore, since the evidence was conflicting on the issue of entrapment, the issue should have been submitted to the jury. The action of the trial court in erroneously ruling that there was no issue for the jury to decide on the question of entrapment, declining to allow defense counsel to argue to the jury the matter of entrapment, and refusing the charge requested by the appellant on the subject constituted prejudicial error, requiring reversal of the judgment and remand of the cause.
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