Peters v. State
| Decision Date | 23 February 1970 |
| Docket Number | No. 5--5451,5--5451 |
| Citation | 450 S.W.2d 276,248 Ark. 134 |
| Parties | Samuel PETERS, III, Appellant, v. The STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Theodore Lamb, Litle Rock, for appellant.
Joe Purcell, Atty. Gen., Little Rock, Don Langston, Mike Wilson, Asst. Attys. Gen., for appellee.
We reverse appellant's conviction of the crime of possession of marijuana alleged to have been committed on September 26, 1968, because of the refusal of the circuit judge to give appellant's requested instruction on the defense of entrapment. The state does not contend that the proffered instruction was incorrect. It only contends that there was no evidence to warrant the giving of the instruction. We disagree with this argument.
The evidence showed that on September 25, 1968, Special Agent Bramwell of the Federal Bureau of Narcotics Control went to the commercial art studio on Scott Street in Little Rock, occupied by appellant, at the invitation of Lucy Brown, who had been invited, along with Michael Gruiner, to spend the night at Peters' studio. The agent was using an assumed name and, of course, did not disclose his capacity as an officer. His purported purpose in going there was to try to help repair an automobile belonging to Lucy Brown and Michael Gruiner. They introduced him to Peters. Bramwell left the Scott Street address with Gruiner and went to look at the automobile. When they returned a few minutes later, those present were discussing the drug situation in Little Rock. Bramwell made some inquiry of those present whether they knew where he could obtain some marijuana. There was evidence tending to show that a marijuana cigarette was smoked by some of those present. It was produced by Lucy Brown at Gruiner's request.
On the next day, Bramwell returned to Paters' place in the afternoon, and discussed the repair of the automobile with Gruiner, after which they went to a parking lot across the street and spent about 30 minutes purportedly checking the vehicle. They then returned to Paters' residence, where Bramwell went upstairs. Paters then gave the agent three cigarettes wrapped in dark brown paper, which were revealed by chemical analysis to contain marijuana or cannabis sativa.
Peters testified that he had repeatedly responded to inquires by the agent (whom he knew as Don Weatherford) that he did not know of any marijuana or where it might be obtained, that he had no dealings, or plans to deal, with marijuana, that he did not know where it could be obtained and had no means of obtaining it and that things were too 'hot' in Little Rock to be fooling with it. Peters also testified that Weatherford persisted in talking about the drug, claiming that he wanted some for a girl friend. According to Peters, after four or five requests, he finally told Weatherford to quit begging him about marijuana, because he could do nothing about it.
According to appellant, he found the cigarettes given to Bramwell next to some bags left behind by Brown and Gruiner. Although he said he was suspicious of them and had started to flush them down the toilet, he gave them to Bramwell, after the agent appeared and again asked for marijuana. His version is that he told Bramwell that he had just found these cigarettes, the contents of which he claimed not to know, and related his plans for disposing of them, but stated that he would let the agent have them if he would just get them out of the studio. It is undisputed that he refused to accept pay for these cigarettes.
While Bramwell's testimony conflicts with that of Peters in many respects, we find that if the jury accepted Peters' testimony, there would be sufficient evidence upon which it might find that there was an entrapment.
Our cases on this defense are rather sparse. Whittington v. State, 160 Ark. 257, 254 S.W. 532, and United States v. Hughey, 116 F.Supp. 649, aff'd, Hughey v United States, 212 F.2d 896 (8th Cir. 1953), relied upon by the state, are easily distinguished from the facts in this case. In neither of these cases where the defendants were prosecuted for illegally selling whiskey was there any evidence to indicate that the officer did more than purchase or offer to purchase whiskey. As Judge Lemley said in the Hughey case, affording one the means and opportunity of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the commission of an unlawful act by persuasion, deceitful representation or inducement by the officers. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 (1932) (cited Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); followed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)). In Sorrells, Chief Justice Hughes spoke for the majority in saying that in the absence of evidence that the accused had previously possessed or sold intoxicating liquor, there was sufficient evidence to present a question of fact whether the illegal sale of whiskey was instigated by a prohibition agent who prevailed upon the accused to obtain whiskey for him. This was accomplished by persistent solicitation after two refusals, while the agent reminisced with the accused about experiences as members of the same division in the AEF during World War I. It was there pointed out that the accused was regularly and continuously employed. 1
Perhaps, neither the persistent solicitation, the use of an alias, the misrepresentation of the purposes for which Bramwell wanted to acquire the marijuana nor the use of friends of appellant for an entree, standing alone, would have been sufficient to raise a fact question as to entrapment, but when taken together along with the total lack of evidence that Peters had possessed or sold marijuana before, there was such an issue. 2
Other alleged errors which are likely to again present questions on a retrial include the refusal of the circuit judge to require the production of notes from which Agents Bramwell and Melancon refreshed their memories...
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...264 Ark. 353, 571 S.W.2d 429 (1978). One consideration for the trial court is whether the jury may have been misled. Peters v. State, 248 Ark. 134, 450 S.W.2d 276 (1970). Improper closing statements are considered on a case by case basis. See Williams v. State, 294 Ark. at 351 742 S.W.2d 93......
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