State v. Knight, 13663

• Decision Date: 14 December 1976
• Docket Number: No. 13663,13663
• Citation: 230 S.E.2d 732,159 W.Va. 924
• Parties: STATE of West Virginia v. Kim Franklin KNIGHT.
• Court: West Virginia Supreme Court

Page 732

230 S.E.2d 732

159 W.Va. 924

STATE of West Virginia v. Kim Franklin KNIGHT.

No. 13663.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1976.

Syllabus by the Court

1. 'Entrapment, as a defense to criminal prosecution, 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.' Syllabus No. 3, State v. Basham, W.Va., 223 S.E.2d 53 (1976).

2. In a criminal case, even though the defendant denies the commission of the offense, he is still entitled to rely on the defense of entrapment if the State injects evidence of entrapment into the case.

3. When the defense of entrapment is asserted, the trial court is required to submit that issue to the jury if the evidence gives rise to questions regarding the readiness of the accused to commit the offense or the extent to which a government agent or informer either induced the accused to commit the crime or afforded him opportunity to commit the crime.

4. A trial court may find, as a matter of law, that a defendant was entrapped, if the evidence establishes, to such an extent that the minds of reasonable men could not differ, that the officer or agent conceived the plan and procured or directed its execution in such an unconscionable way that he could only be said to have created a crime for the purpose of making an arrest and obtaining a conviction.

Robert B. Black, Parkersburg, for plaintiff-in-error.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant-in-error.

WILSON, Justice:

At a trial in the Circuit Court of Wood County on June 12, 1975, on a charge of delivering marijuana, the trial court refused to give defendant's proffered instruction on the issue of entrapment on the ground that no evidence of entrapment was offered by defendant. On appeal from his conviction by a jury, the appellant (defendant below) assigns the refusal of this instruction as error. He also assigns as error the trial court's refusal to direct a verdict of acquittal and the trial court's giving of an instruction at the request of the State which appellant contends did not properly define the elements of the offense.

We reverse solely on the trial court's refusal to give an instruction on the issue of entrapment.

A detailed recitation of the evidence is not essential to our consideration of the case. We are not required to determine whether the evidence on the issue of entrapment is strong or weak. The defendant denied the commission of the offense and offered in support thereof his own testimony and that of one other witness. However, there being some evidence elicited during the presentation of the State's case from which a jury could have found that defendant was entrapped into the commission of the crime, we are only required to decide whether a defendant who does not affirmatively present evidence of entrapment but relies on a denial of the commission of the offense may also avail himself of the defense of entrapment based on the State's evidence alone.

This question has not previously been presented to this Court.

A majority of jurisdictions hold that entrapment is not available as a defense when the accused denies the essential elements of the offense. ¹ The rationale of the cases so holding is apparently that the law will not countenance the inconsistency involved in combining a claim that defendant did not commit the offense and a claim that he was entrapped into the commission of the very offense which he denied committing. That rule and its rationale is generally proper and adequate, because ordinarily when the crime is denied, the defendant will be unable to establish any evidentiary base for the defense of entrapment.

However, we adopt also the following language of the opinion in Sears v. United States, 343 F.2d 139, 143--44 (5th Cir. 1965):

'. . . if the government injects evidence of entrapment into the case, the defendant is entitled to have the jury instructed that if they find he committed the acts charged, they must further consider whether he was entrapped into committing them. . . . A criminal defendant should not forfeit what may be a valid defense, nor should the court ignore what may be improper conduct by law enforcement officers, merely because the defendant elected to put the government to its proof.'

We specifically limit the application of this exception to the general rule to cases such as the instant one in which the State's case in chief injects evidence of entrapment into the case. See United States v. Newcomb, 488 F.2d 190, 192 (5th Cir. 1974), for the same limitation on the scope of this exception to the general rule.

Under his plea of not guilty, a defendant in a criminal case is entitled to have the jury consider, under proper instructions, every theory of defense to which the evidence or the reasonable inferences to be drawn therefrom may entitle him. There is no need to treat the defense of entrapment as an exception requiring the application of a different rule.

There is seemingly much confusion which has surrounded the development and application of the defense of entrapment. We perceive no reason for this confusion unless it springs from society's sense of moral disquietude in being required to resolve a fundamental conflict which exists when the agents of society encourage and sometimes actually engage in criminal conduct under the guise of preventing or punishing the same or similar criminal conduct of others.

Entrapment is a defense which is most frequently asserted in connection with offenses involving various aspects of vice such as prostitution, gambling, moonshining, illegal whiskey sales and various phases of the drug traffic. Police authorities justify the utilization of the affirmative trap on the theory that the crimes with which it is customarily associated are crimes which are usually surreptitiously committed involving persons who are not likely to make complaint about the breach of the law which is involved. They say that it is a legitimate device by which they can hope to suppress and punish, at least to some extent, the commission of such offenses which might not otherwise come to their attention. They assert that if the weapon of the affirmative trap were taken away from them, they would not have adequate means of dealing with such offenses.

In recent years, in this country, the spread of the drug traffic accompanied by widespread public disapproval and fear has popularized the 'drug bust' and has encouraged police agencies to resort to general use of the affirmative trap. It is obvious from our review of the cases and the scholarship ² on the subject that the defense of entrapment, which has never been very clearly delineated, is being viewed with increasing skepticism by police officials, prosecutors, judges and juries.

Nonetheless, this Court, beginning with State v. Piscioneri, 68 W.Va. 76, 69 S.E. 375 (1910), has long recognized the defense of entrapment. ³ Generally speaking, the defense has been available in this jurisdiction when the idea of committing the crime had its genesis in the mind of the entrapping person who then inveigled the accused into the commission of the crime. See State v. Jarvis, 105 W.Va. 499, 143 S.E. 235 (1928). In applying this concept, this Court has distinguished deceptive practices and artifices employed to detect crime from those employed to create crime. See State v. Basham, W.Va., 223 S.E.2d 53 (1976); State v. Bierce,113 W.Va. 649, 169 S.E. 478 (1933); State v. Hamrick, 112 W.Va. 157, 163 S.E. 868 (1932); and State v. Jarvis, supra.

This Court's adoption of and adherence to the 'subjective' or 'origin of intent' theory of the defense of entrapment is consistent with the views expressed in the majority opinions in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); and United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

The 'subjective' or 'origin of intent' test requires submission of the issue of entrapment to a jury.

We should note, however, that a minority in Sorrells, Sherman and Russell, supra, gave cogent expression to an 'objective' test which would treat the defense of entrapment as one of law for the court.

For example, in Sorrells, 287 U.S. at 454--55, 53 S.Ct. at 217, Mr. Justice Roberts, in urging that the question be treated as one of law for the court, stated:

'There is common agreement that where a law office envisages a crime, plans it, and activates its commission by one not theretofore intending its perpetration, for the sole purpose of obtaining a victim through indictment, conviction and sentence, the consummation of so revolting a plan ought not to be permitted by any self-respecting tribunal. Equally true is this whether the offense is one at common law or merely a creature of statute. Public policy forbids such sacrifice of decency.'

In Sherman, 356 U.S. at 384, 78 S.Ct. at 826, Mr. Justice Frankfurter in a concurring opinion joined in by Mr. Justice Douglas, Mr. Justice Harlan and Mr. Justice Brennan, gave expression to the underlying philosophy of the defense of entrapment in the following language:

'The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.'

In urging the 'objective' test, as opposed to the 'subjective' or 'origin of intent' test, Mr. Justice Frankfurter, 356 U.S. at 383, 78 S.Ct. at 826, stated:

'Permissible police activity does not vary...