State v. Jones
| Decision Date | 31 March 1980 |
| Citation | 598 S.W.2d 209 |
| Parties | STATE of Tennessee, Respondent, v. Charles Edward JONES, Petitioner. |
| Court | Tennessee Supreme Court |
Leroy Phillips, Jr., Chattanooga, for petitioner.
William M. Leech, Jr., Atty. Gen., Robert L. DeLaney, John Zimmerman, Asst. Attys. Gen., Gary Gerbitz, Dist. Atty. Gen., Stephen Bevil, Jerry Sloan, Asst. Dist. Attys. Gen., for respondent.
We granted certiorari in this case primarily in order to consider the defense of entrapment in criminal actions. A secondary issue of confrontation and two other lesser issues are involved.
Petitioner was convicted in the Criminal Court at Chattanooga of solicitation to commit robbery (Section 39-115, T.C.A.) and sentenced to serve from three to six years in the state penitentiary.
The Court of Criminal Appeals, one member partially dissenting, affirmed.
We reverse and remand for a new trial.
This case grew out of a scheme devised by special agents with the Bureau of Alcohol, Tobacco & Firearms, United States Treasury Department, designed to connect and convict respondent of violation of the Federal Gun Control Act. 1
In the pursuit of this plan, one Helen Risler was engaged as a special employee, or undercover agent, to work with the operation. Subsequently, her son Britt Risler was brought into the picture. The contract of employment provided that each was to receive a subsistence allowance of $15.00 per day plus an "award" of $1,000.00 for successful completion of the project. The City of Chattanooga was to pay a similar amount. At the conclusion of the operation, Helen Risler received payments totalling $3,320.00; Britt Risler received $3,440.00.
According to the agents the plan was to give defendant "an opportunity to violate the law if he so desired." It is apparent that they were well versed in the law of entrapment. In their testimony they drew a fine line between luring or inducing the defendant into the commission of the crime on the one hand and his voluntarily taking advantage of the opportunity they afforded on the other.
The record shows that, operating in conjunction with the Rislers, the federal agents took full advantage of artifice, ruse, deceit and deception to accomplish their mission. As distasteful as this may be, it is a legitimate weapon in the arsenal of law enforcement. The law does not mandate a frank, forthright or even honest approach when seeking to ferret out criminal activity.
Pursuant to their plan, Helen Risler contacted the petitioner, whetted his interest in joining what he was led to believe was a series of unlawful activities to be conducted by the Risler group. She had a number of meetings with petitioner, and at some of these she was equipped with a body transmitter and the conversations were monitored by the agents. (For more detail, see Section III, infra ).
On trial, neither of the Rislers testified. (See Section IV, infra ). Instead the State's case rested entirely upon the testimony of the two participating ATF agents. Their testimony consisted primarily of reading to the jury the typed transcripts of the various conversations. Hence, the confrontation issue. See Section III, infra.
Tennessee is the only jurisdiction in the United States that does not recognize the defense of entrapment. More accurately, it is the only jurisdiction that professes that the defense is not recognized. With this opinion we bring our secession to a close and reconstruct our decisional law so as to bring it into harmony with that of our sister states and of the federal system.
From this day forward entrapment is a defense to a Tennessee criminal prosecution.
Our decisions relating to entrapment are a study in applied confusion, articulated ambivalence, and devious dicta. They say flatfootedly that entrapment is not a defense, yet, simultaneously apply the governing rules. Paradoxically, our research indicates that our appellate courts have never affirmed a conviction where the elements of the defense of entrapment were established.
Recognizing the chaotic condition of our law, M. Olive, in Entrapment in Tennessee, 45 Tenn.L.Rev. 57, 88 2 (1977), makes this startling comment:
Indeed, it is almost beyond comprehension that the Tennessee Supreme Court should allow such a state of affairs to continue.
What is "almost beyond comprehension" is the fact that this is the first case to come before us in the five-year service of the Court, as presently constituted, wherein this issue has been presented for determination. We welcome an opportunity to clarify, harmonize and modernize our law. This is a foremost duty of this Court.
The status of our law is best exemplified by the charge given in the case by an able and experienced criminal judge:
(E)ntrapment of a defendant is not recognized in Tennessee as such as a defense to a crime. On the other hand, if the proof shows that the whole machinery to violate the law originated in the minds of the officers of the law or their agents and if the accused is instigated, induced, or lured by an officer of the law or other person for the purpose of prosecution, into the commission of a crime which he otherwise had no intention of committing, he may not be convicted of the offense. Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.
Thus, we have the spectacle of a trial judge, under a sworn constitutional oath to "declare the law" (Article VI, Section 9, Constitution of Tennessee), solemnly instructing a jury that entrapment is not a defense and that entrapment is a defense. The trial judge is a "witness as to the law" and a witness will not be heard simultaneously to affirm and disavow a fact and "(c) ontradictory statements of a witness in connection with the same fact have a result of cancelling out each other." Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 507, 410 S.W.2d 892, 896 (1967).
Two questions arise, i. e., where does a charge such as this leave the jury and why would an able trial judge give such conflicting instructions. The answer to the first is simple: confused. The answer to the second is that the trial judge is bound to follow the appellate courts and, in that context, he had no other choice. His charge was a correct statement of our inconsistent rule of law. By our decisional law we have entrapped the trial judge. Hence, the necessity for this opinion.
We start our analysis with Hyde v. State, 131 Tenn. 208, 174 S.W. 1127 (1914), erroneously but consistently cited for the proposition that this Court has rejected the entrapment defense. The defense of entrapment was not even raised in Hyde.
A physician was found guilty of the unlawful sale of morphine, based upon the testimony of an undercover agent for the State. He approached the doctor and obtained from him a prescription for an alleged but nonexistent friend. Among other defenses, the defendant later contended that the conviction could not stand because the sale was "made by means of the solicitation of (a state agent), for the purposes of a criminal prosecution." 131 Tenn. at 217, 174 S.W. at 1130. The Court held that "such acts of government agent do not absolve the defendant's act of criminality," Id.; that the fact that the "sale was induced for the purpose of securing inculpatory testimony," Id. at 219, 174 S.W. at 1130, was no excuse; and by quotation from a New York case, that the agent's conduct "had no necessary connection with his violation of law" because "(h)e exercised his own violation (sic), independent of all outside influence or control." Id. The facts were not fully developed; this may or may not have been a proper case for a reversal based on entrapment probably not.
The progenitor of our peculiar and perplexing "no entrapment entrapment" defense is Thomas v. State, 182 Tenn. 380, 385, 187 S.W.2d 529, 530 (1945), wherein the Court, citing Hyde, supra, declared that entrapment was not a defense in Tennessee, because "the only 'inducement' was an agreement to pay the seller (of intoxicating whiskey) the price he demanded, which yielded him a handsome profit." Under the facts as recited by the Court, this was not a case of entrapment, but merely legitimate police activity designed to determine the existence of unlawful conduct. The predisposition of the defendant was not discussed, leaving the case decided on the simplistic basis of mere inducement resulting in no entrapment, coupled with a holding that even if entrapment had occurred this was not a defense.
By dicta, and without any discussion, the Court in Palmer v. State, 187 Tenn. 527, 216 S.W.2d 25 (1948), and Goins v. State, 192 Tenn. 32, 237 S.W.2d 8 (1951), again noted that entrapment was not a defense under Tennessee law.
R. Kendrick, in the 1960 Survey of Criminal Law and Procedure, 13 Vand.L.Rev. 1059, 1063, after discussing a case where the defense of entrapment was not raised, made these apt comments:
It is difficult to believe, however, that the very desirable and generally acceptable concept of entrapment would never be utilized by Tennessee Courts. Whereas traps are justified in catching those bent on crime, it is intolerable for the state to use its own officers, or agents provocateur, to instigate crimes by sowing the seeds of criminal ideas in innocent minds and thereby to bring about offenses that otherwise would not have been committed.
In Hagemaker v. State, 208 Tenn. 565, 347 S.W.2d 488 (1961), we reached the zenith of our confusion. In this burglary case, the Court at the very outset, declared "(i)t is clearly established that the doctrine of entrapment is not recognized in this State." 208 Tenn. at 567, 347 S.W.2d at 489. Defendants admitted their participation but contended...
To continue reading
Request your trial
-
State v. Hageman, 206A82
...418 N.E.2d 479 (1981); Henry v. State, 269 Ind. 1, 379 N.E.2d 132 (1978); State v. Talbot, 71 N.J. 160, 364 A.2d 9 (1976); State v. Jones, 598 S.W.2d 209 (Tenn.1980); State v. Hinkle, 286 S.E.2d 699 (W.Va.1982). However, in this State, we have traditionally placed the burden of production a......
-
State v. Walker
...certainty, and provided the testimony of the witness in whole or in part, comports with the other rules of evidence. State v. Jones, 598 S.W.2d 209, 223 (Tenn.1980); State v. Coker, 746 S.W.2d 167, 172 (Tenn.1987). This requirement was met in the present case when Naomi Elliott testified th......
-
State v. Land
...evidence rule, or as an admission not governed by the rule, the result is the same. The admission is competent proof. State v. Jones, 598 S.W.2d 209, 223 (Tenn.1980), overruled on other grounds by, State v. Shropshire, 874 S.W.2d 634 (Tenn.Crim.App.1993), and, superseded by statute as state......
-
State v. Smith
...tape recording and allowing the jury to use a transcript. See, e.g., State v. Coker, 746 S.W.2d 167, 172 (Tenn.1987); State v. Jones, 598 S.W.2d 209, 223 (Tenn.1980); State v. Mosher, 755 S.W.2d 464, 469 (Tenn.Crim.App.1988); State v. Elrod, 721 S.W.2d 820, 822-823 (Tenn.Crim.App.1986); Sta......