State v. Houston

Decision Date03 July 1996
Docket NumberNo. 22950,22950
Citation475 S.E.2d 307,197 W.Va. 215
PartiesSTATE of West Virginia, Appellee, v. Chester HOUSTON, Appellant.
CourtWest Virginia Supreme Court

1. The unconscionable government conduct doctrine is separate and distinct from the defense of entrapment. We specifically overrule State v. Knight, 159 W.Va. 924, 230 S.E.2d 732 (1976), and its progeny to the extent that Knight holds that a trial court can apply both the subjective and objective tests as part of an entrapment defense, and instead hold that the defense of entrapment is fully contained within the subjective test standard. Any inquiry into the outrageous or unconscionable conduct of the police, which was previously considered under our two-tiered analysis, is now considered under a separate constitutional due process analysis.

2. The exclusive entrapment defense to criminal prosecution in West Virginia is the subjective standard, which occurs where the design or inspiration for the offense originates with law enforcement officers who procure its commission by an accused who would not have otherwise perpetrated it except for the instigation or inducement by the law enforcement officers. To the extent that State v. Knight, 159 W.Va. 924, 230 S.E.2d 732 (1976), and its progeny are inconsistent with this position, they are expressly overruled.

3. The significance of the distinction between outrageous government conduct and entrapment is that the existence of a predisposition on the part of the accused to commit a crime, while possibly fatal to a claim of entrapment, does not serve to eradicate a due process claim based on outrageous government conduct.

4. When the defendant invokes entrapment as a defense to the commission of a crime, the defendant has the burden of offering some competent evidence that the government induced the defendant into committing that crime. Once the defendant has met this burden of offering some competent evidence of inducement, the burden of proof then shifts to the prosecution to prove beyond a reasonable doubt that the defendant was otherwise predisposed to commit the offense.

5. While the issue of the defendant's predisposition to commit the crime is usually reserved for the jury, a trial court may enter a judgment of acquittal if the State fails to rebut the defendant's evidence of inducement, or fails to prove the defendant's predisposition to commit the offense charged beyond a reasonable doubt. Syllabus, State v. Hinkle, 169 W.Va. 271, 286 S.E.2d 699 (1982).

6. Upon review of a trial court's refusal to enter a judgment of acquittal based on the defense of entrapment, we will examine the evidence in the light most favorable to the prosecution, and will reverse only if no rational trier of fact could have found predisposition to exist beyond a reasonable doubt.

7. The formula for proving the separate and distinct claim of outrageous government conduct shall be that the defendant must show that the conduct of the government in inciting the defendant to commit the crime was so egregious and reprehensible that it violates notions of fundamental fairness, shocking to the universal sense of justice, as mandated by the due process clauses of the Fifth Amendment of the United States Constitution and article three, section ten of the West Virginia Constitution. If outrageous government conduct rising to a due process violation is proven, the State shall be barred from any prosecution relating to a crime resulting from that conduct.

8. In determining whether government or its agents engaged in outrageous conduct rising to the level of a due process violation, the following factors shall be considered: 1) whether the government's conduct went beyond that of mere inducement, such that the government must have "created" or "manufactured" the crime solely for the purpose of generating criminal charges and without any motive to prevent further crime or protect 9. When a defendant appeals a trial court's refusal to find as a matter of law that the government acted outrageously in violation of the defendant's due process rights, we will review that decision de novo to the extent that if there is insufficient evidence of outrageous government conduct so as to violate notions of fundamental fairness, shocking to the universal sense of justice, the ruling of the trial court will not be reversed. Any factual determinations made by the trial court in issuing its ruling on the claim of outrageous government conduct will be reviewed under a clearly erroneous standard.

[197 W.Va. 219] the public at large; 2) whether the government, in procuring the defendant's commission of the crime, engaged in criminal or improper conduct repugnant to our sense of justice; and 3) whether the government appealed to humanitarian instincts such as sympathy, past friendship, or temptation by exorbitant gain to overcome the defendant's reluctance to commit the offense.

10. "Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

Darrell V. McGraw Jr., Attorney General, Scott E. Johnson, Assistant Attorney General, Charleston, for Appellee.

James E. Hawkins Jr., Rexroad and Rexroad, Buckhannon, for Appellant.

RECHT, Justice.

The defendant, Chester Houston, was convicted in the Circuit Court of Upshur County of one count of delivery of a controlled substance (marijuana). Upon that conviction, the defendant was sentenced to one to five years in the West Virginia Penitentiary, which was suspended, with probation being granted conditioned upon serving 120 days in the Upshur County Jail.

On appeal, the defendant assigns as error the trial court's refusal to direct a verdict of acquittal on the issue of entrapment; and the trial court's imposition of a sentence that was excessive under the circumstances. We do not find merit in either of the defendant's contentions and affirm the conviction.

I. FACTS

On December 15, 1992, Deputy Richard Bennett (herein "Bennett"), a narcotics task force officer with the Upshur County Sheriff's Department, and Eddie Bennington (herein "Bennington"), a confidential informant who was working with Bennett, drove to the defendant's apartment complex for the purpose of purchasing marijuana from the defendant. 1 In order that the prospective transaction could be recorded, Bennington was equipped with a hidden body microphone which was being monitored and taped by Bennett from a vehicle strategically parked to capture the conversation between Bennington and the defendant. 2 Bennington found the defendant outside his apartment complex working on his automobile. When Bennington approached the defendant, the following colloquy occurred: 3

Informant--Ronny told me earlier I might be able to get a bag 4 off of you, man.

Chez--Who?

Informant--Ronnie B____.

Chez--I can't now.

Informant--Can't now, huh?

Chez--I just sold the last one a little while ago.

Informant--Just a little while ago? S[--]t. When will you get anymore? Do you know?

Chez--I don't know.

Later in the same conversation, there was some discussion which could be interpreted as inquiring whether the defendant could acquire more marijuana since he had "sold the last one a little while ago." The audio portion of this phase of the conversation between Bennington and the defendant was of poor quality, with the transcribed tape containing many inaudible statements. However, there could be little doubt that the essence of the conversation is that Bennington would be returning the next day in an attempt to purchase some marijuana from the defendant. 5 Following this meeting, Bennett instructed Bennington to return the next day to repeat his efforts to purchase marijuana from the defendant.

What occurred the next day is not entirely captured on tape since Bennington returned to the defendant's apartment without the hidden body microphone and without any funds to complete the transaction. However, according to Bennington's in-court testimony, he returned to the defendant's apartment the next morning (December 16, 1992) when what occurred is best described in Bennington's own words:

Q Okay and could you tell us what happened when you went back that next morning?

A He went somewhere, when I got there, he went somewhere else and he got some and he came back.

Q He got some what?

A Marijuana.

Q Okay and did you purchase the marijuana at that time?

A No, sir, I didn't.

Q Okay and why didn't you purchase it?

A Cause I didn't have the money and I did have the officer, you know.

Q Okay, and did you--so--did you indicate to him that you would come back later, or--

A Yeah, I told him I had to go get the money off either my brother or my mother.

Q Off of who?

A My brother or my mother.

Q Okay. So did you--you left at that time?

A Yes, sir, I did.

Q But he'd shown you the marijuana.

A Yes, sir.

Later that same day, Bennington and Bennett returned to the defendant's residence. Mr. Bennington was now wearing the hidden body microphone and was monitored and taped by Bennett. During this return visit, Bennington purchased 2.27 grams of marijuana from the defendant for thirty dollars. The entire transaction was recorded; however, significant portions of the discussion were inaudible.

The defendant was indicted on May 10, 1993, for unlawfully and feloniously delivering a controlled substance in violation of W. Va.Code 60A-4-401(a) (1983). 6

At trial, Bennington admitted on cross-examination that he persisted in his efforts to purchase marijuana from the defendant on several occasions prior and subsequent to December 15, 1992. On each of these occasions, the defendant would refuse to deal with Bennington. Mr. Bennington admitted that at the time of the delivery of marijuana, which formed the basis of the...

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