State v. Houston

¶1concurring:

¶2I agree entirely with the scholarly opinion of Justice Recht. I concur only to reemphasize several significant aspects of the entrapment doctrine.

¶3In today’s major opinion, this Court eloquently adds judicial gloss to the legal test for establishing entrapment. A valid entrapment defense requires proof of two related elements: (1) that the State induce the offense, and (2) that the defendant not be predisposed to commit it. See Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992); Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54, 61 (1988); State v. Jarvis, 105 W.Va. 499, 143 S.E. 235 (1928). Before the defendant may raise an entrapment defense, he or she must offer “sufficient” evidence of both state inducement and his or her own lack of predisposition. In the past, the bare terms — inducement and predisposition — have done little to disclose the encrusting precedent. Today’s opinion by Justice Recht easily becomes the most useful West Virginia discussion on the subject. This decision, which is post-Jacobson, not only illuminates the entrapment concept, but it rids entrapment jurisprudence of the burdensome and confusing “due process” theory.

¶4Appropriately, the majority opinion makes clear that despite some general strictures against the State’s “manufacturing” of crimes, inducement requires something more than a State agent or information suggesting the crime and providing the occasion for it. Rather, inducement consists of providing an opportunity plus something else — typically, excessive pressure by the police or their informant or the police taking advantage of the defendant in an improper way.1 There is no better means of getting a sense of what courts have regarded an “improper” inducement than the list of eases and parentheticals set forth in the majority opinion. See also the opinion of Chief Judge (now Justice) Breyer in United States v. Gendron, 18 F.3d 955 (1st Cir.), cert. denied, — U.S.-, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994).

¶5Although the entrapment doctrine is primarily concerned with curbing such improper pressure by the agents of the State, a competing policy has led to the second requirement, namely, that the defendant also not be predisposed to commit the crime. Of course, until some evidence of inducement has been shown, a showing of predisposition is unnecessary.2 On the other hand, if the defendant *233is found to be predisposed to commit the crime, the entrapment defense is unavailable regardless of the inducement. The premise supporting predisposition as an element of entrapment is that a defendant predisposed to commit the crime should not get off merely because the agents of the State gave the defendant too forceful a shove along the path that the defendant would readily have taken anyway.3 A defendant is predisposed to commit a crime if he is ready and willing without persuasion to commit the crime charged and awaiting any propitious opportunity to do so. Predisposition may be shown by evidence of (1) an existing course of criminal conduct similar to the crime for which the defendant is charged, (2) an already formed design on the part of the defendant to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the indictment. In essence, the term predisposition focuses on the defendant’s state of mind before state agents suggest that he commits the crime. The question the trier of fact must answer is whether the defendant would have been likely to commit the same crime without the undue pressure actually asserted.

¶6The majority decision also properly, and for the first time in West Virginia, labels entrapment as a burden shifting defense, ie., once the defendant has made a threshold showing, the burden shifts to the State to prove beyond a reasonable doubt either that there was no undue State pressure or trickery or that the defendant was predisposed. By making entrapment a burden-shifting defense, it becomes the trial court’s duty to instruct the jury as to the state’s burden.4 Thus, the problem for the jury is primarily that of applying a general standard — actually two such standards — inducement and predisposition to varying patterns of facts.

¶7To be sure, in the ordinary case, entrapment presents a question for the factfinder. Even where there are no credibility issues or tensions in the evidence, entrapment is treated as a jury question. That does not mean complete freedom for the jury, see Jacobson, supra,and State v. Hinkle, 169 W.Va. 271, 286 S.E.2d 699 (1982); it does mean that where a rational jury could decide either way, its verdict will not be disturbed. In most eases, reversible error is committed by the trial court only where it fails to submit *234the entrapment issue to the jury.5 Ordinarily, the evidence will not be so overwhelming as to establish improper conduct by the State as a matter of law. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).6 In this case, the police efforts, although far from pristine, were dubious rather than flagrant, or at least a factfinder could so determine. I make this point merely to suggest that to assume that we are dealing with a sharp boundary rather than a spectrum is an illusion.

¶8Allocating to the jury broad discretion in entrapment cases is not new to West Virginia jurisprudence. By tradition, issues associated with guilt or innocence (duress, insanity, entrapment, self-defense) are submitted to the jury. See United States v. Gaudin, — U.S.-,-, 115 S.Ct. 2310, 2313-14, 132 L.Ed.2d 444, 449-50 (1995) (elements of a crime); State v. Koon, 190 W.Va. 632, 640, 440 S.E.2d 442, 450 (1993) (per curiam) (mental duress); State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981) (insanity); State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978) (self-defense). Other issues, perhaps similar in kind but related to collateral matters, are determined, at least initially, by the court (e.g., the reasonableness of a search and seizure and, in many jurisdictions, the voluntariness of a confession. Cf State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978)). In the former category of merit-released issues, the jury in close cases effectively decides not only what happened but also whether what happened deserves the legal label described in the jury instructions.7

¶9Nevertheless, the “gatekeeper” role of the trial judge should not be undetermined. First, except where a jury acquits in a criminal case, judges remain as a check on juries in the extreme case — one where the judge thinks that a rational jury could reach only one result. Second, the trial court plays a critical role in limiting the kind of evidence that is to be submitted to prove predisposition.8 The trial court is empowered to make appropriate use of Rule 404(b) of the West Virginia Rules of Evidence and especially the balancing under Rule 403. See State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Third, the trial court must approve and deliver only meaningful instructions for the jury.

¶10*235Finally, one farther word is in order. What may be even more troublesome in cases of this kind is the possibility of undue encouragement to the informant, as a result of compelling State inducements (dismissal or reduction of charges or money) to overstep the bounds in the field, or in the courtroom, or both. In his or her dual role as both instigator and witness, an informant has a special capacity — as well as a strong incentive — to tilt both the event itself and his or her testimony about it. If the State is going to use its informant in a role just short of a provocateur, it would be well advised to consider devising restrictions that ■will at least lessen the likelihood for abuse. Otherwise, the lesson of history in West Virginia is that this Court itself will take precautions and our adjustments are usually more rigid and far-reaching. See Matter ofW. Va. State Police Crime Lab, 190 W.Va. 321, 325, 438 S.E.2d 501, 505 (1993) (Zain cases: “[t]he law forbids the State from obtaining a conviction based on false evidence”).