State v. Willis

• Decision Date: 20 December 1983
• Docket Number: No. 64948,64948
• Citation: State v. Willis, 662 S.W.2d 252 (Mo. 1983)
• Parties: STATE of Missouri, Respondent, v. Darlene WILLIS, Appellant.
• Writing for the Court: BILLINGS; RENDLEN; DONNELLY; DONNELLY
• Court: Missouri Supreme Court

Page 252

662 S.W.2d 252

STATE of Missouri, Respondent, v. Darlene WILLIS, Appellant.

No. 64948.

Supreme Court of Missouri En Banc.

Dec. 20, 1983.

Rehearing Denied Jan. 17, 1984.

Ben K. Upp, Springfield, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

BILLINGS, Judge.

Defendant Darlene Willis was court-tried and convicted in Greene County for the sale, distribution and delivery of cocaine in violation of §§ 195.017.4, and 195.020, RSMo 1978, and sentenced to five years imprisonment. The court of appeals, relying on State v. Weinzerl, 495 S.W.2d 137 (Mo.App.1973), concluded the State had failed to carry its burden of proof on the issue of defendant's entrapment and reversed the conviction. We ordered the case transferred because of the general interest and importance of the issue involved and for the purpose of reexamining the existing law relative to the defense of entrapment. We review the case as an original appeal [Mo.Const. Art. V, § 10] and affirm the conviction.

Defendant's single point is that she was entitled to a judgment of acquittal at the close of all of the evidence because the evidence was insufficient as a matter of law to support the guilty verdict for the reason that she presented uncontradicted evidence of her entrapment. Because of the issue thus framed, we must in this review recast the evidence and all favorable inferences reasonably arising therefrom in the light most favorable to the verdict. Conversely, we are required to reject and ignore all contrary evidence and inferences. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Under the foregoing standard of review, the fact finder, the trial court in this instance, could reasonably find the facts as hereinafter set forth.

Officer Clark was working as an undercover drug agent for the Springfield Police Department during May, 1980. He was using Perry Leslie, a paid informant and a nephew of the defendant, in attempting to make purchases of illicit drugs. Leslie told Clark defendant "was into drugs" and on May 24, 1980, they contacted defendant at her home concerning a purchase of methamphetamine. Defendant said she could get the drug but would have to be taken to a telephone to call a certain person. The officer, informer, and defendant drove to another location where defendant made a telephone call. The trio then drove to Nichols Park in Springfield where they met Darrel Harrell, identified by defendant as a relative of her former husband. The officer purchased what was purported to be crystal methamphetamine. On the drive back from the park, defendant asked officer Clark if he would be interested in purchasing some "coke" [cocaine]. She told the officer the price of the cocaine was $110.00 a gram.

Three days later, May 27, about noon, the officer and his informer went to see defendant and advised her they had the money for the cocaine. Defendant said she would have to make a telephone call and did so. She told Clark and Leslie her source would not have anything until about 2:00 p.m., and the price would be $115.00 a gram. Clark and Leslie left and returned at 2:00 p.m. Defendant made another telephone call and reported "he wouldn't have it until about 5:00 p.m.". Again, Clark and Leslie left defendant but returned to her place of residence at the appointed time. She got into the car with the two men and told them they had to go to Dub's Lounge in south Springfield to pick up the cocaine. When they arrived at their destination, defendant told Clark to park in the parking lot of the lounge. Defendant asked for the money to make the purchase and Clark gave her six twenty dollar bills. The two men waited in the car while defendant went inside the lounge. Defendant returned to the car in about five or ten minutes and handed Clark four one dollar bills and four quarters and a vial which was later determined to contain cocaine, saying "here's your stuff" and indicated "it was good". She testified she had obtained the cocaine from Doug Brown, a friend of eleven years and a person she had dated.

By way of defense, defendant testified it was only because of her nephew's repeated solicitations to purchase drugs that she committed the instant crime; that her nephew had told her unless he was able to procure drugs he would be sent to the penitentiary and by getting some drugs it would help him get out of trouble with the law and get some charges he was facing dropped. ¹

Here, defendant contends there was no evidence to suggest she had the necessary predisposition to commit the charged crime and because her evidence injected entrapment into the case by virtue of the informer's pleas, entreaties, and solicitations, the State was required, under Weinzerl, supra, and cases following it, ² to rebut the inference of unlawful inducement by substantial evidence of her predisposition to commit the offense and "where the evidence of inducement comes from defendant, the prosecution cannot rest on a challenge to the credibility of defendant; it must come forward with some contradictory evidence or suffer the adverse direction of a judgment of acquittal. United States v. Bueno, 447 F.2d 903, 906 (5th Cir.1971)." State v. Weinzerl, supra, at 141. In a nutshell, defendant argues that since her evidence of unlawful inducement was not contradicted by the State, the verdict cannot stand.

As this Court pointed out in State v. Keating, 551 S.W.2d 589, 592 (Mo. banc 1977), cert. denied, 434 U.S. 1071, 98 S.Ct. 1255, 55 L.Ed.2d 775 (1978), Missouri follows the "subjective" test on entrapment rather than the "objective" test. The former focuses on the "origin of intent" to commit the crime with emphasis on the "predisposition" of the accused. The "objective" test concentrates on whether or not the police activity shown should be condoned or rejected. And, as Keating notes, our decisions regarding entrapment as a defense are consistent with those of the United States Supreme Court. Id. at 593. ³

Originally a judge created doctrine in Missouri, ⁴ the defense of entrapment has, since January 1, 1979, been legislatively codified. Section 562.066.2, RSMo 1978, provides in pertinent part:

An "entrapment " is perpetuated if a law enforcement officer or a person acting in cooperation with such an officer, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct when he was not ready and willing to engage in such conduct.

Initially we note that the Weinzerl court incorrectly states the elements of entrapment and the defendant's burden for injecting entrapment into the case. In Weinzerl, the court stated that the defendant injected the issue of entrapment by presenting substantial evidence of unlawful government inducement. Weinzerl, supra at 141. The statute, § 562.066, requires proof of both inducement to engage in unlawful conduct and an absence of a willingness to engage in such conduct. State v. Coffman, 647 S.W.2d 849, 852 (Mo.App.1983). ⁵ By focusing only on unlawful government inducement, the Weinzerl test erroneously applies the objective theory of entrapment.

Weinzerl also incorrectly states that after the defendant injects the issue of entrapment into the case, the state must prove defendant's "predisposition". Rather, it is the defendant's initial burden to go forward with evidence showing both unlawful governmental inducement and defendant's lack of predisposition. The State then has the burden of proving lack of entrapment beyond a reasonable doubt. The State may do so by rebutting either defendant's evidence of inducement or by showing his predisposition. ⁶

Assuming the appellate court had correctly framed the defendant's initial burden for injecting entrapment into the case and held that substantial evidence of both governmental inducement and the defendant's lack of predisposition was present, the court would still not be correct in finding entrapment as a matter of law. In the instant case, the State's evidence contained no evidence of entrapment, i.e., either unlawful government "inducement" or the lack of predisposition on the part of the defendant. Consequently, if the defendant was to have successfully relied on the defense of entrapment in this case, such evidence would, of necessity, have had to come from her own testimony.

In Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958), defendant contended entrapment was established as a matter of law where he had testified he was induced by an informer "engaged in a campaign to persuade him to sell narcotics by using the lure of easy income" and this testimony was not contradicted, the Court said:

However, this testimony alone could not have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to [informer] and so find for the government on the issue of guilt.

356 U.S. at 388, 78 S.Ct. at 829. So it is here. Defendant's uncontradicted evidence of unlawful inducement by Leslie may be sufficient to raise a factual issue for the trier of fact but it does not follow that absent contrary evidence by the State, she has established entrapment as a matter of law because the jury, or the court in a jury-removed case, may disbelieve her evidence.

Bueno, supra, relied on in Weinzerl for the proposition that the State cannot rest on a challenge to the defendant's credibility is unpersuasive. In Weinzerl, the court held that the defendant failed to present sufficient evidence to inject entrapment into the case, supra at 143, therefore, the court's discussion of the prosecutor's burden of rebuttal and the citation to Bueno was mere dicta. Furthermore, in Bueno, the Fifth Circuit was applying the objective theory of entrapment rather than the subjective origin of intent theory followed in Missouri and the vast...