Jackson v. State

• Citation: 384 So.2d 134
• Decision Date: 30 October 1979
• Docket Number: 3 Div. 59
• Parties: Marvin JACKSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 134

384 So.2d 134

Marvin JACKSON v. STATE.

3 Div. 59.

Court of Criminal Appeals of Alabama.

Oct. 30, 1979.

Sterling G. Culpepper, Jr., Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of selling cyclohexamine in violation of the Alabama Uniform Controlled Substances Act (Code 1975, § 20-2-1, et seq.). He was sentenced to imprisonment for fifteen years.

The principal contest on appeal is as to the availability to defendant of the defense of entrapment.

Three witnesses testified on call of the State. Only one testified as to the sale. The combined testimony of the other two showed that the product sold was cyclohexamine.

Defendant did not take the stand. No witness in his behalf testified as to a sale. The evidence for the defendant was limited largely to testimony as to his character or reputation.

As the chief issue on appeal hinges on the testimony of the only witness as to a sale, we endeavor hereby to summarize his testimony. He was Mr. Donald S. Williams, an agent of Alabama Beverage Control Board, Alcohol and Narcotic Enforcement Division, engaged in undercover work.

According to the testimony of Mr. Williams, about 5:50 P.M. on Friday, August 18, 1978, at Room 118, Holiday Inn East, Montgomery, he purchased from defendant approximately one ounce of cyclohexamine and paid defendant therefor eleven hundred dollars. He also gave defendant the sum of one hundred dollars to pay him for his plane fare to Montgomery from where defendant lived in Oklahoma. The particular transaction was in the presence of Charles Gates, a resident of Elmore County, a "confidential informant" working with Mr. Williams and other agents at the time, whom Mr. Williams had known for about six weeks and who Mr. Williams understood had been guilty of violations of Controlled Substances Act, had been charged therewith and was working with the authorities in accordance with an understanding that he might be placed on probation for his offenses. Gates was being paid his expenses from public funds, and had been paid therefrom by Mr. Williams the sum of fifty dollars with which to pay for a room (Room 118) at the Holiday Inn to be occupied by defendant.

The witness did not know defendant until the afternoon of the sale. About the middle of the afternoon Mr. Gates, in a State automobile assigned to Mr. Williams, drove Mr. Williams to a house or apartment on Fifth Street in Montgomery, left him there, went to the airport to pick up defendant and returned with defendant in about thirty minutes. He drove into the driveway of the house or apartment where Mr. Williams had been left. The horn of the automobile was blown, and Mr. Williams came to it, was introduced to defendant by Mr. Gates and rode with them to the Holiday Inn. They went to a lounge before going to Room 118; each had a drink, and about 5:30 P.M. the three went to Room 118.

There is no evidence as to what transpired between Gates and defendant prior to the time Williams met them on Fifth Street and went with them to the Holiday Inn, but it seems clear and undisputed that whatever arrangements were made for defendant to come from his home in Oklahoma to Montgomery, Alabama, were made between Gates and defendant. Gates did not testify in the case. Before the trial commenced and before a jury was selected to try the case, counsel for defendant made it known to the court that he had requested a subpoena for Charles Gates. Thereupon a lengthy colloquy among counsel, the court and others transpired relative to the whereabouts of Gates, and it was made known to the court that his whereabouts was not known by the State, its attorneys or agents then in court of the Alabama Beverage Control Board, and he was no longer a confidential informer of the State. At the conclusion of the colloquy and just before the jury was selected, defendant moved for a continuance "so that we could have an opportunity to locate Mr. Charles Gates." The motion was overruled.

At the conclusion of the evidence for the State, defendant moved for an exclusion of the evidence. The record shows:

"THE COURT: All right. I will hear your Motion.

"MR. SMITH: Judge, we move to exclude the State's evidence on the first ground of entrapment. I think under the evidence, without dispute, the Court knows as a fact and based upon the evidence of ABC Agent Don Williams that the plan or the scheme or the design to purchase the drug which is mentioned in the indictment originated with the enforcement officer. And we think for that reason that the State's evidence should be excluded.

"THE COURT: Do you want to respond, Mr. Chandler?

"MR. CHANDLER: Yes, sir. It is my understanding, Mr. Smith, that you are pleading entrapment?

"MR. SMITH: I said on the grounds of entrapment.

"MR. CHANDLER: Does that constitute a plea of entrapment?

"MR. SMITH: You don't plead entrapment.

"MR. CHANDLER: I beg to differ with you. It is a special plea you are allowed under the rules of evidence for defense of a case, as you well know.

"THE COURT: All right.

"MR. CHANDLER: I submit there is. And if the Defendant chooses to plead entrapment he acquiesces that the offense took place and his only defense is that he was trapped into doing it and he is estopped from putting on any evidence to the contrary.

"MR. SMITH: Entrapment is not a special plea, we submit to the Court.

"THE COURT: All right. Any more argument on it?

"MR. SMITH: No, sir.

"THE COURT: I don't feel that that plea is available here. Assuming for a moment that it was timely raised. So, I will deny your Motion on that ground.

"MR. SMITH: We except."

When defendant rested, the jury was excused to go to the jury room and the following occurred:

"THE COURT: All right. Let's talk about the closing arguments for a moment.

"I believe all your requested charges are going to be amply covered in my oral charge. Let's get to a more important matter.

"Under McCarroll vs. State, the defense of entrapment is not available if you deny the charge. That is what I thought would be the law.

"Do you intend to try to argue entrapment?

"MR. CULPEPPER: Judge, it is so intermingled with the credibility of Don Williams and Charles Gates . . . Now we don't plan to just come out and use that word, but I think we are entitled, in attacking the credibility of the witnesses who say he did this, to talk about the circumstances under which it was supposedly done. And that will lead us to make such statements as, Gates told Marvin to come here to do that, and that sort of thing. Now

"THE COURT: Are you pleading entrapment or not?

"MR. SMITH: Judge, we don't have to plead entrapment as I understand it.

"THE COURT: Well, you can't have the best of both worlds. You have either got to admit that he sold it and plead entrapment, as I read the law, or either you have got to deny that he sold it and take

"MR. CULPEPPER: Are you saying we have got to stand up before the jury and say that we acknowledge that he

"THE COURT: If you want the benefit of the defense of entrapment you do.

"MR. SMITH: Wouldn't that be proper for the Court to instruct the jury?

"THE COURT: I don't intend to instruct the jury on entrapment, is what I am getting to. That is why we need to talk about the argument.

". . . .

"MR. SMITH: Judge, so that the record will be clear: We have asked the Court to include in your instructions the proper instructions on the defense of entrapment, and Your Honor has declined to do that.

"THE COURT: Yes, sir. And if I'm not going to charge on it you can't argue it.

"MR. CULPEPPER: Judge, we also have a requested instruction we want to offer at this time on entrapment.

"THE COURT: All right. I am going to deny your requested charge."

Defendant's requested charge, which the court refused, on the subject of entrapment was as follows:

"I charge you that where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such case.

"On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment.

"If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as are charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.

"On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the government, then it is your duty to find him not guilty."

Notwithstanding testimony by Mr. Williams as to what may be considered as instructions to Mr. Gates as to what he should tell the defendant in making arrangements for him to come to Montgomery from Oklahoma to make a sale of a controlled substance, we cannot assume that Mr. Gates followed such instructions punctiliously. Mr. Williams was an agent with many years of experience in undercover work. His answers to questions propounded him on cross-examination, as well as direct examination, disclose a commendable awareness of the distinction between an inducement that does not constitute an entrapment and conduct that does constitute the same. This, however, does not force a conclusion that a non-expert in such field, a suspected felon such as Gates, could or...