Sparks v. State

• Decision Date: 01 September 1991
• Docket Number: No. 788,788
• Citation: 603 A.2d 1258,91 Md.App. 35
• Parties: Mark Edward SPARKS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 35

91 Md.App. 35

603 A.2d 1258

Mark Edward SPARKS v. STATE of Maryland.

No. 788, Sept. Term, 1991.

Court of Special Appeals of Maryland.

April 6, 1992.

Jennifer P. Lyman, Assigned Public Defender, Washington, D.C. (Stephen E. Harris, Public Defender, Baltimore, on the brief), for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Christian J. Jensen, State's Atty. for Caroline County, Denton, on the brief), for appellee.

Submitted before MOYLAN, DAVIS and MOTZ, JJ.

MOYLAN, Judge.

The entrapment defense is as modern as Abscam. ¹ It is as ancient as the Book of Genesis: "The serpent beguiled me and I did eat." ² On the merits, it seldom enjoys any more success today than it did in the Garden of Eden. ³ As a generative source of appellate litigation, however, it has been perennially luxuriant.

Although pioneered in the state courts, ⁴ it first achieved high-profile recognition in 1932 with the Supreme Court decision of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Sorrells and progeny, notwithstanding non-constitutional status, have come to be, over half a century, the primary persuasive benchmark for a defense now recognized in all fifty states. ⁵

Almost all of the Supreme Court effort, however, has thus far been lavished upon the single--and key--substantive issue of what is the essential nature of the defense. Sorrells, supra; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976).

The long-running substantive debate has been one between 1) a focus on the "Predisposition" of the defendant--the so-called subjective test--and 2) a focus on the "Conduct of the Authorities"--the so-called objective test. The former, espoused by the Supreme Court majorities in Sorrells, Sherman, Russell and Hampton, looks, on a case-by-case basis, not only at the manner and nature of the inducement dangled by government before a target but also (and predominantly) at the moral and social character of the target who is thus induced. It draws a critical distinction, in the words of Chief Justice Warren in Sherman, between "the trap for the unwary innocent and the trap for the unwary criminal." ⁶ The concern is not "to see who held out the bait, but who took it." ⁷ The trap itself is neither good nor bad. The critical question is whether the person caught in the trap is good or bad. ⁸

A significant majority of the states have followed the lead of the Supreme Court and adopted this subjective test for entrapment. ⁹ In 1969, this Court opted for that approach in Simmons v. State, 8 Md.App. 355, 360-364, 259 A.2d 814 (1969). ¹⁰ The Court of Appeals placed its imprimatur on that decision in Grohman v. State, 258 Md. 552, 556-560, 267 A.2d 193 (1970). ¹¹

The "road not taken"--the objective test for entrapment--is that espoused by Justice Roberts' concurrence in Sorrells, ¹² Justice Frankfurter's concurrence in Sherman, ¹³ Justice Stewart's dissent in Russell, ¹⁴ and Justice Brennan's dissent in Hampton. ¹⁵ It looks to the propriety of the governmental conduct per se and would apply the entrapment defense essentially as a prophylactic device to monitor investigative behavior and to "police the police." Its concern is not with whether the defendant, before he took the bait, was good or bad but with whether the investigative offer of the bait was itself good or bad. ¹⁶ As with any utilization of a prophylactic sanction, it calls for entrapment decisions to be made, as a matter of course, by the judge and not by a jury. Some few states, legislatively or judicially, have followed this alternative approach to entrapment. ¹⁷

At the Supreme Court level, that substantive debate is now concluded and is of no more than historical interest. As Justice Brennan acknowledged, concurring in Mathews v. United States, 485 U.S. 58, 67, 108 S.Ct. 883, 99 L.Ed.2d 54, 63 (1988):

"Were I still judging on a clean slate, I would still be inclined to adopt the view that the entrapment defense should focus exclusively on the Government's conduct. But I am not writing on a clean slate; the Court has spoken definitively on this point. Therefore I bow to stare decisis."

Because of its long preoccupation with the fundamental substantive nature of the defense, however, the Supreme Court has had almost nothing to say about its procedural incidents. Maryland, simply because of the random nature of almost all of the appellate contentions that have thus far been raised, has also had little occasion to examine the procedural nuances. The present appeal, however, requires us to stop and to look closely at one such procedural question or, more precisely, at a cluster of closely-related procedural questions: What is required to establish a legally sufficient, prima facie case of entrapment so as to generate a genuine jury issue with respect to it and to warrant a jury instruction on the subject? To whom is allocated the burden of production with respect to such a prima facie case? Who decides whether a prima facie case has been made--judge or jury? What are the necessary elements of such a prima facie case?

The Present Case

The appellant, Mark Edward Sparks, was convicted by a Caroline County jury, presided over by Judge J. Owen Wise, of distributing marijuana. Upon this appeal, he raises the following three contentions:

1) That he was erroneously denied a jury instruction on the defense of entrapment;

2) That evidence necessary to establish the defense of entrapment was erroneously rejected; and

3) That an erroneous jury instruction a) amended and thereby broadened the charges against him, b) deprived him of his constitutional right to notice, and c) violated his right against double jeopardy.

The appellant was charged in two counts. The lesser charged simple possession of marijuana. The greater charged distribution.

Deputy Sheriff Robert Lee Bradley, an undercover narcotics officer, had been targeting one Wanda Hutson for some time. Ms. Hutson, apparently caught up in the snares of the law, agreed to extricate herself by entering into a working relationship with the police. She operated both as an informant and as an undercover agent for them. Based upon her knowledge of the local traffic, she supplied Deputy Bradley with a list of possible suppliers of narcotics. The appellant's name was on that target list. Deputy Bradley was familiar with the appellant by virtue of having had him pointed out on several prior occasions by other deputy sheriffs. Why he was pointed out was not stated in the record.

The action plan was for Wanda Hutson to serve as a go-between and to arrange controlled buys between the targeted sellers on her list and Deputy Bradley, who would pose as an interested buyer. On February 27, 1990, Wanda Hutson arranged for such a "buy." The appellant was to come to her home at 210 East Sunset Avenue in Greensboro, Caroline County, at 11 A.M. to sell a quarter of an ounce of marijuana to Deputy Bradley. Deputy Bradley arrived a few minutes before the appellant did. Deputy Bradley knew that the appellant was the target for that morning's snare.

According to Deputy Bradley's testimony, the operation proceeded like clockwork. Deputy Bradley was seated on a sofa in the living room. The appellant entered and, while in the hallway entrance, gave Wanda Hutson a plastic baggie containing greenish-brown vegetable matter that later was found to be marijuana. The appellant and Wanda Hutson went briefly into the kitchen. She then handed the baggie to Deputy Bradley. Someone (he was not certain which of the two) handed Deputy Bradley a scale. He measured the marijuana and found that it was, atypically, "a little over a quarter ounce." Commenting favorably that "it was better than a quarter ounce," he prompted the appellant's reciprocally gracious response that "he takes care of his people." Deputy Bradley asked the appellant how much he owed him for the bag. The appellant replied, "Fifty dollars." Deputy Bradley handed the appellant $50. The appellant took it and left the house. The entire transaction lasted approximately ten minutes.

The Defendant's Version of the Facts

Bearing on Entrapment

The appellant gave a different version of the episode and it is, of course, his version that we must accept in determining the threshold question of whether he made out a prima facie case of entrapment. His version of why he initially went to Wanda Hutson's house on February 27 establishes nothing with respect to entrapment, one way or the other. He claimed that he had been a social friend of Wanda for about six months. He received a call from her at approximately 9 o'clock that morning. She wanted to ask him a couple of questions about her boyfriend, specifically about whether her boyfriend was cheating on her. Accordingly, she asked him over to her home. He got a follow-up call from her at about 11 o'clock and in response to that second call, finally did go over to Wanda's house. He claimed that there was no discussion about marijuana or about any drugs of any kind, let alone a discussion about a possible sale.

The appellant did admit, however, that he carried a supply of marijuana with him on that visit to Wanda. He maintained that the marijuana was exclusively for his own personal use. This adds an interesting wrinkle, for it limits the entrapment defense to the first count charging distribution and forgoes it as to the second charging possession. We have found no other case where the allegedly improper enticement was not one that allegedly lured its victim from the ranks of the law-abiding into the underworld of criminality in the first instance but only one that allegedly pushed him upward from a lower level of criminality...