MOYLAN, Judge.
The entrapment defense is as modern as Abscam.
Although pioneered in the state courts,
Almost all of the Supreme Court effort, however, has thus far been lavished upon the single — and key — substantive issue of what is the essential nature of the defense. Sorrells, supra; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976).
The long-running substantive debate has been one between 1) a focus on the "Predisposition" of the defendant — the so-called subjective test — and 2) a focus on the "Conduct of the Authorities" — the so-called objective test. The former, espoused by the Supreme Court majorities in Sorrells, Sherman, Russell and Hampton, looks, on a case-by-case basis, not only at the manner and nature of the inducement dangled by government before a target but also (and predominantly) at the moral and social character of the target who is thus induced. It draws a critical distinction, in the words of Chief Justice Warren in Sherman, between "the trap for the unwary innocent and the trap for the unwary criminal."
A significant majority of the states have followed the lead of the Supreme Court and adopted this subjective test for entrapment.
The "road not taken" — the objective test for entrapment — is that espoused by Justice Roberts' concurrence in Sorrells,
At the Supreme Court level, that substantive debate is now concluded and is of no more than historical interest. As Justice Brennan acknowledged, concurring in Mathews v. United States, 485 U.S. 58, 67, 108 S.Ct. 883, 99 L.Ed.2d 54, 63 (1988):
Because of its long preoccupation with the fundamental substantive nature of the defense, however, the Supreme Court has had almost nothing to say about its procedural incidents. Maryland, simply because of the random nature of almost all of the appellate contentions that have thus far been raised, has also had little occasion to examine the procedural nuances. The present appeal, however, requires us to stop and to look closely at one such procedural question or, more precisely, at a cluster of closely-related procedural questions: What is required to establish a legally sufficient, prima facie case of entrapment so as to generate a genuine jury issue with respect to it and to warrant a jury instruction on the subject? To whom is allocated the burden of production with respect to such a prima facie case? Who decides whether a prima facie case has been made — judge or jury? What are the necessary elements of such a prima facie case?
The Present Case
The appellant, Mark Edward Sparks, was convicted by a Caroline County jury, presided over by Judge J. Owen Wise, of distributing marijuana. Upon this appeal, he raises the following three contentions:
The appellant was charged in two counts. The lesser charged simple possession of marijuana. The greater charged distribution.
Deputy Sheriff Robert Lee Bradley, an undercover narcotics officer, had been targeting one Wanda Hutson for some time. Ms. Hutson, apparently caught up in the snares of the law, agreed to extricate herself by entering into a working relationship with the police. She operated both as an informant and as an undercover agent for them. Based upon her knowledge of the local traffic, she supplied Deputy Bradley with a list of possible suppliers of narcotics. The appellant's name was on that target list. Deputy Bradley was familiar with the appellant by virtue of having had him pointed out on several prior occasions by other deputy sheriffs. Why he was pointed out was not stated in the record.
The action plan was for Wanda Hutson to serve as a go-between and to arrange controlled buys between the targeted sellers on her list and Deputy Bradley, who would pose as an interested buyer. On February 27, 1990, Wanda Hutson arranged for such a "buy." The appellant was to come to her home at 210 East Sunset Avenue in Greensboro, Caroline County, at 11 A.M. to sell a quarter of an ounce of marijuana to Deputy Bradley. Deputy Bradley arrived a few minutes before the appellant did. Deputy Bradley knew that the appellant was the target for that morning's snare.
According to Deputy Bradley's testimony, the operation proceeded like clockwork. Deputy Bradley was seated on a sofa in the living room. The appellant entered and, while in the hallway entrance, gave Wanda Hutson a plastic baggie containing greenish-brown vegetable matter that later was found to be marijuana. The appellant and Wanda Hutson went briefly into the kitchen. She then handed the baggie to Deputy Bradley. Someone (he was not certain which of the two) handed Deputy Bradley a scale. He measured the marijuana and found that it was, atypically, "a little over a quarter ounce." Commenting favorably that "it was better than a quarter ounce," he prompted the appellant's reciprocally gracious response that "he takes care of his people." Deputy Bradley asked the appellant how much he owed him for the bag. The appellant replied, "Fifty dollars." Deputy Bradley handed the appellant $50. The appellant took it and left the house. The entire transaction lasted approximately ten minutes.
The Defendant's Version of the Facts Bearing on Entrapment
The appellant gave a different version of the episode and it is, of course, his version that we must accept in determining the threshold question of whether he made out a prima facie case of entrapment. His version of why he initially went to Wanda Hutson's house on February 27 establishes nothing with respect to entrapment, one way or the other. He claimed that he had been a social friend of Wanda for about six months. He received a call from her at approximately 9 o'clock that morning. She wanted to ask him a couple of questions about her boyfriend, specifically about whether her boyfriend was cheating on her. Accordingly, she asked him over to her home. He got a follow-up call from her at about 11 o'clock and in response to that second call, finally did go over to Wanda's house. He claimed that there was no discussion about marijuana or about any drugs of any kind, let alone a discussion about a possible sale.
The appellant did admit, however, that he carried a supply of marijuana with him on that visit to Wanda. He maintained that the marijuana was exclusively for his own personal use. This adds an interesting wrinkle, for it limits the entrapment defense to the first count charging distribution and forgoes it as to the second charging possession. We have found no other case where the allegedly improper enticement was not one that allegedly lured its victim from the ranks of the law-abiding into the underworld of criminality in the first instance but only one that allegedly pushed him upward from a lower level of criminality to a higher echelon.
Upon arrival at Wanda's, the appellant was surprised to find a stranger "sitting there and ... walked through to the kitchen." He there "talked to Wanda for a few minutes." It was in that brief conversation in the kitchen that the subject of marijuana first arose and that the entrapment allegedly occurred. By way of a proffer initially but ultimately in the course of cross-examination and redirect examination as well, it came out that Wanda told the appellant "she needed to make this deal with this person ... who she had befriended" and she asked the appellant "if she could have whatever marijuana he had so she could sell it to Deputy Bradley." Putting to the side for the moment the questions of whether Wanda asked once or as many as three times and of whether Wanda was a friend of the appellant's, this "need to make a deal" was the sum total of the reason given by Wanda as to why she needed to have his marijuana.
Turning from the stated reason for the solicitation to the persistence of the solicitation, we note that when the appellant was asked, "Did you have any conversation with her?", he responded, "Yes, a little bit." When Wanda initially asked the appellant for his marijuana, he responded in the negative, causing her to ask again:
The sequence of events then becomes a little garbled. On direct examination, the appellant indicated that he then, at Wanda's request, reached into her kitchen drawer, took out the scales, and gave them to her. The request to sell the marijuana was then repeated:
There then came an interlude of "about ten minutes" during which Wanda apparently left the appellant alone in the kitchen while she talked to Deputy Bradley in the living room. Without any further explanation, the appellant gave Wanda Hutson his marijuana:
Wanda Hutson then delivered the marijuana to Deputy Bradley:
On cross-examination, the appellant pinpointed the number of times he declined to deliver his marijuana to Wanda Hutson at three:
He acknowledged, moreover, that it was right after these three requests and before the ten-minute interlude, during which he was left in the kitchen, that he turned over the marijuana:
It was while Wanda Hutson was in the living room, apparently selling the marijuana to Deputy Bradley, that she called to the appellant in the kitchen to bring her the scales (for the obvious purpose of weighing the marijuana):
The appellant stated that he received no money from Wanda Hutson (or from anyone) for the marijuana he turned over to her, although he did testify that the marijuana he gave her was worth between $40 and $50. He stated he did this "because we were friends."
The closest the appellant came to pinpointing the energizing reason for having done something he was ordinarily not inclined to do came during cross-examination. It boiled down to the fact that he distributed the marijuana to Wanda Hutson because she had, three times, asked him to do it intertwined with the fact that she was a friend:
On redirect examination, the motivation for the criminal act of distributing seemed to switch subtly from an act of friendship to an act of mild exasperation:
One other pertinent fact bearing on the issue of entrapment was brought out both on direct and on cross-examination. It was that the appellant had been convicted in 1985 of selling marijuana.
The Ruling on the Prima Facie Case
Ordinarily, a ruling on whether a defendant has made out a prima facie case of entrapment would be made at the close of the entire case. That ruling would control whether the jury would be permitted to consider the issue of entrapment. It would thereby control whether the judge would be required to instruct the jury on the subject of entrapment — its elements, the appropriate burden or burdens of persuasion as to aspects of entrapment, and the allocation of that burden or those burdens to one party or the other.
In this case, however, the State, quite appropriately, requested Judge Wise to rule upon whether the appellant had made out a prima facie case as soon as the defense rested and before the State had finally rested. If the prima facie case had, indeed, not been made out, the State was then prepared to rest its entire case. If a prima facie case had been made out, on the other hand, and the issue were going to the jury, the State then intended to call rebuttal witnesses for the purpose of establishing the appellant's predisposition to commit narcotics-related offenses, thereby counteracting any possible entrapment defense.
The State proffered that, inter alia, it would put on Deputy Bradley to testify that after the criminal incident of February 27, 1990, the appellant, still believing that Deputy Bradley was a good and bona fide customer, approached him on two subsequent occasions "offering to sell him more marijuana" and inquiring as to whether he "was satisfied with the marijuana he had purchased from [the appellant] on the 27th." The State further proffered that this testimony was only one of "the several other pieces of evidence that would be introduced." The appellant's 1985 conviction for selling marijuana had already been brought out in evidence but it might, on rebuttal, have been developed more fully and more formally.
Once the possibility of entrapment has been established as a genuine jury issue, it is clear that the State acquires far-ranging latitude in offering rebuttal evidence to show the defendant's criminal predisposition that would not be allowed under any circumstances other than in counteracting the entrapment defense. As LaFave and Scott, Criminal Law (2d ed. 1986), pointed out at 426:
That this admissible evidence of criminal predisposition includes subsequent sales of contraband and other subsequent conduct as well as antecedent conduct is clear. In Berlin v. State, 12 Md.App. 48, 277 A.2d 468 (1971), we ruled that in rebutting the entrapment defense the State was entitled to offer evidence of subsequent sales of controlled drugs. Judge Powers held for this Court, at 12 Md.App. 60, 277 A.2d 468:
Judge Chasanow made a thorough and scholarly survey of the same latitude on rebuttal for this Court in Bowser v. State, 50 Md.App. 363, 439 A.2d 1 (1981). He observed, at 50 Md.App. 372-373, 439 A.2d 1:
See also Cason v. State, 66 Md.App. 757, 775-776, 505 A.2d 919, 929 (1986). And see United States v. Coady, 809 F.2d 119, 121 (1st Cir.1987).
The potential rebuttal, however, never came to pass, for Judge Wise ruled that the appellant had not established a prima facie case of entrapment. The State rested. The jury received no instruction on the subject of entrapment and entrapment was a non-issue as far as the jury was concerned. Upon this appeal, the appellant's primary contention is that that ruling was incorrect.
The Procedural Precedents Are Sparse
As we turn to the correctness of that ruling, one problem is immediately apparent. Except for the lower federal courts, to whose opinions we shall presently turn, the case law on the procedural incidents of the entrapment defense is exceedingly skimpy. In the course of eight decisions on the subject, the Supreme Court has said nothing about the proper procedures for handling entrapment issues. Despite multitudinous cases raising, directly or obliquely, the subject of entrapment, Maryland has only a meager handful of cases touching upon the procedural incidents, all of them from this Court.
The Supreme Court Law
In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the lower federal court had, to be sure, refused to submit the issue of entrapment to the jury, ruling as a matter of law that it had not been established. The Supreme Court overruled the lower federal court and remanded the case so that a jury verdict could be had on the subject. The opinion, however, was not called upon to deal with evidentiary sufficiency, allocations of burdens, or other procedural problems. The lower federal court, rather, had refused, as a matter of law, to recognize as a valid entrapment defense what the Supreme Court ultimately declared to be legitimate circumstances for asserting such a defense. Beyond that, the bulk of the majority and concurring opinions clashed at length over their different conceptualizations of the essential nature of the entrapment defense — the subjective test versus the objective test.
The Supreme Court revisited the subject twenty-six years later in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Chief Justice Warren and Justice Frankfurter, respectively, simply picked up the cudgels earlier wielded by Chief Justice Hughes and Justice Roberts and renewed the battle over the basic conceptualization of the defense, the subjective test again prevailing. In the lower federal court, the entrapment issue had gone to the jury and the jury had nonetheless convicted the defendant. The Supreme Court, in a very fact-specific and clearly result-oriented decision, overturned the jury verdict and declared that entrapment had been established as a matter of law. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958), was a brief companion case handed down the same day. The Supreme Court declined to hold that on the facts of the case, entrapment had been established as a matter of law. It refused to overturn the jury verdict of conviction, which had implicitly discredited the entrapment defense.
Entrapment was only a secondary issue in both Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) and Osborne v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). In each case, a convicted defendant made the bald appellate assertion that he was entitled to a reversal of his conviction because the evidence revealed that entrapment, as a matter of law, had been affirmatively present. The Court simply held on both occasions, without any meaningful discussion, that entrapment had not been established as a matter of law.
At present, the most significant Supreme Court treatment of entrapment is its 1973 opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. After summarizing the development of the defense, it reiterated that "the thrust of the entrapment defense [is the] focus on the intent or predisposition of the defendant to commit the crime." 411 U.S. at 429, 93 S.Ct. at 1641. Although there was adequate evidence of predisposition to support the jury verdict of guilty, the 9th Circuit had reversed the conviction. It added an element to the defense by holding that entrapment was established, as a matter of law, "solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of the Respondent's conviction." 411 U.S. at 424, 93 S.Ct. at 1639. The Supreme Court reversed the 9th Circuit and held that such governmental participation in the offense by supplying necessary ingredients did not in any way change the law and that the predisposition of the defendant to participate in the criminal activity was still a bar to any successful assertion of the entrapment defense. Four justices in dissent continued to push for the objective test conceptualization of entrapment.
In 1976, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, failed to produce a majority opinion. Although ostensibly raising an entrapment issue, it was ultimately held that the "case does not qualify as one involving `entrapment' at all." 425 U.S. at 489, 96 S.Ct. at 1649. Under circumstances where the defendant was clearly possessed of a predisposition to commit the crime for which he was tried, the defense argued that the heavy governmental involvement in the case, arguably supplying narcotics to him at one end of the chain and customers to him at the other end of the chain, entitled him to a ruling that prosecution was constitutionally barred as a violation of due process. Five justices agreed that that was not so. The plurality maintained that a defendant's predisposition would always defeat a due process claim based upon governmental involvement. Two concurring justices agreed with the decision on the facts before them but hesitated to join the sweeping and absolute statement of the plurality. Three dissenting justices continued to push for the objective test approach.
Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), dealt with a very limited issue. The federal trial court, affirmed by the 7th Circuit, refused to permit an entrapment defense to go to the jury because the defendant declined to admit having committed the offense as to which he claimed entrapment. The Supreme Court held that as long as there is evidence to generate the defense, it is appropriate for the jury to consider it and there is no bar to a defendant's assertion of alternative and apparently inconsistent positions.
Thus, except for the limited principle that inconsistent positions are permitted the defendant without dooming his entrapment defense, the Supreme Court has given no guidance at all as to how to handle the many procedural problems inevitably attendant upon that defense.
The Maryland Law
As we approach the Maryland law on the subject, we can quickly eliminate from consideration four of the 39 opinions of the Court of Appeals and of this Court that have touched upon the defense of entrapment. Those four opinions simply alluded, in passing, to the defense but offered no real illumination either upon its substance or upon the procedures for handling it.
In Regle v. State, 9 Md.App. 346, 264 A.2d 119 (1970), we pointed out that an entrapper cannot constitute a necessary party to a conspiracy because of the lack of a true meeting of the minds.
Of the cases dealing with entrapment by more than merely allusive reference, the first was Callahan v. State, 163 Md. 298, 162 A. 856 (1932).
Despite the fact that entrapment has been an issue calling for decision in the other 34 post-Callahan opinions of the Court of Appeals and of this Court, the procedural field nonetheless remains essentially unplowed. The reason for this neglect is easy to understand. In most cases, entrapment has not been the central issue but has been merely a peripheral "other contention" raised in its simplest form. That is where the appellant claims that entrapment was affirmatively established, as a matter of law, and that the appellant was, therefore, entitled to a directed verdict of not guilty.
The Procedural Postures:
To place the various entrapment issues that may arise in some kind of an organizational context, it is important to note that, generally speaking, appellate issues involving entrapment will take one of three procedural postures. These involve the three stages to which proof of entrapment in a given case may have advanced. The question "Has entrapment been established?" will yield one of three answers:
In procedural posture A, the defendant will be claiming on appeal that the affirmative establishment of entrapment, as a matter of law, entitled him to an acquittal — not at the hands of the jury but at the hands of the judge. If he was convicted in a court trial, the claim will be that the verdict of the judge was clearly erroneous. If he was convicted in a jury trial, the claim will be that the judge was legally in error in submitting the case to the jury. This is, essentially, where all of the Maryland appellate action has been.
The only procedural issue that may arise will be that of whether, in a jury trial, the defendant made the appropriate motion for a judgment of acquittal so as to preserve the sufficiency question for appellate review. See Kenney v. State, 62 Md.App. 555, 490 A.2d 738 (1985).
If the appellate court rules against the defendant on this issue of entrapment as a matter of law (as every Maryland decision thus far has done), the decision will not, except by way of gratuitous dicta, establish whether the proof of entrapment actually ended up at Stage C (no prima facie case; non-entrapment as a matter of law) or at Stage B (a genuine question of fact for the jury). That will not have been the question before the court. The decision will do no more than establish that the proof was at either Stage C or Stage B but had in no event attained Stage A (entrapment, as a matter of law). The frequent overly broad readings of this limited decision and the frequent carelessly broad statements of this limited decision are recurring sources of confusion. Issues in this procedural posture may arise in court or jury trials.
In procedural posture B, the establishment of entrapment will be a genuine issue of fact to be determined by a jury (or by the fact-finding judge in a court trial). It is only, however, in the context of a jury trial that appellate issues in this posture will arise. Here the issues will involve such procedural questions as what is the burden of persuasion — bare preponderance, clear and convincing, beyond a reasonable doubt? To which party is allocated the burden of persuasion? Is there a single issue with a single allocation of the burden of persuasion or are their multiple issues, possibly with different allocations of the burden as to different issues?
It is in this posture as well that the adequacy of jury instructions defining the elements of entrapment may be involved. Also involved may be questions about the type of evidence the State may use to show a defendant's criminal predisposition. See Bowser v. State, 50 Md.App. 363, 371-375, 439 A.2d 1, 5-8 (1981). In this procedural posture, on the other hand, no question will ever arise with respect to a burden of production. That is a non-issue here. The only questions will involve the burden or burdens of persuasion, the correctness and adequacy of jury instructions, and the admissibility of evidence. Issues in this procedural posture will, by their very nature, arise only in jury trials.
In procedural posture C, the judge will have ruled that the defendant failed to establish a prima facie case of entrapment. He will, in effect, have ruled that there is nonentrapment, as a matter of law. The defendant will not be entitled to have the jury consider the issue of entrapment and there will, therefore, be no jury instructions on the subject. The appellate issue here will be whether the defendant did or did not establish a prima facie case. Also involved may be the sub-issue of what are the elements of entrapment as to which the defendant is required to establish such a prima facie case. Issues in this procedural posture also will, by their very nature, arise only in jury trials.
Procedural Posture A — Entrapment As a Matter of Law:
Since first recognizing the existence of entrapment in Callahan in 1932, all twelve Court of Appeals cases dealing with entrapment have arisen in this procedural posture, dealing with the single question of whether entrapment was established, as a matter of law. In 1952, the Court of Appeals decided Ferraro v. State, 200 Md. 274, 89 A.2d 628. In that first post-Sorrells case to be decided in Maryland, the Court of Appeals recognized the existence of the entrapment defense, pointing out that "This Court has never directly passed upon the defense of entrapment, because the question was not presented by any ruling in the record." 200 Md. at 279, 89 A.2d 628. It referred to the earlier allusions to entrapment, however, in Hummelshime v. State, supra, and Callahan v. State, supra. It summarized fully the two different theories of entrapment expressed by the Supreme Court in Sorrells v. United States, even as it concluded that it was not "necessary to decide which, if any, of the divergent views of the defense of entrapment is law in Maryland." 200 Md. at 281, 89 A.2d 628. It was only necessary to decide that under any theory of entrapment, entrapment had not been affirmatively established, as a matter of law, and that the verdict of guilty, in a court trial, was not, therefore, clearly erroneous.
Since Ferraro, eleven additional Court of Appeals decisions have considered the entrapment defense. The issue in each of those cases has been in precisely the same posture as in Ferraro. In each, the defendant has claimed that entrapment was established as a matter of law and in each, the Court of Appeals has held that that was not the case. In three of the cases, defendants were appealing jury verdicts of guilty. In each, they claimed that because of the foreclosing effect of entrapment, as a matter of law, they were entitled to directed verdicts of not guilty and the trial judges were in error in submitting the cases to the jury. The Court of Appeals rejected all three claims. Baxter v. State, 223 Md. 495, 165 A.2d 469 (1960); Lane v. State, 226 Md. 81, 87-88, 172 A.2d 400 (1961); Whyte v. State, 229 Md. 459, 184 A.2d 738 (1962).
In the other eight cases, verdicts of guilty
Other than for Grohman v. State's placing of its seal of approval upon our decision in Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969), to adopt the subjective test of entrapment, following the Supreme Court majorities, rather than the objective test of entrapment, urged by the Supreme Court minorities, this has been the sum total of legal doctrine developed by the Court of Appeals on the subject of entrapment. There has been no discussion of what is required to establish a prima facie case so as to avoid a directed verdict of non-entrapment, as a matter of law. There has been no discussion, once a prima facie case had been established, of the elements as to which a jury must be persuaded; of the burden of persuasion itself; or of its allocation.
Turning to the decisions of this Court, on 26 prior occasions the subject of entrapment has been before us. As with the cases from the Court of Appeals and for precisely the same reason, most of our opinions have been singularly unenlightening. On nine occasions, following jury verdicts of conviction, defendants had claimed that the affirmative establishment of entrapment, as a matter of law, entitled them to directed verdicts of not guilty and that the trial judges thereby committed reversible error in submitting the cases to the juries. We rejected all nine such contentions. Dolan v. State, 1 Md.App. 292, 229 A.2d 443 (1967); Gamble v. State, 2 Md.App. 271, 234 A.2d 158 (1967); Holt v. State, 3 Md.App. 544, 240 A.2d 355 (1968); Poff v. State, 4 Md.App. 186, 241 A.2d 898 (1968); DiNatale v. State, 8 Md.App. 455, 260 A.2d 669 (1970); Gill v. State, 11 Md.App. 593, 597, 275 A.2d 505 (1971); Berlin v. State, 12 Md.App. 48, 58-59, 277 A.2d 468 (1971); Perkins v. State, 26 Md.App. 526, 339 A.2d 360 (1975); Bowser v. State, 50 Md.App. 363, 439 A.2d 1 (1981).
On nine other occasions, following convictions in court trials, defendants claimed that the affirmative establishment of entrapment, as a matter of law, rendered the guilty verdicts by the judges clearly erroneous. We rejected all nine of those contentions. Jarrett v. State, 1 Md.App. 448, 230 A.2d 683 (1967); Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969); Rettman v. State, 15 Md.App. 666, 292 A.2d 107 (1972); Hignut v. State, 17 Md.App. 399, 303 A.2d 173 (1973); Schuman v. State, 19 Md.App. 400, 311 A.2d 460 (1973); Lawson v. State, 25 Md.App. 537, 335 A.2d 135 (1975); Dravo v. State, 46 Md.App. 622, 420 A.2d 1012 (1980); Grindstaff v. State, 57 Md.App. 412, 470 A.2d 809 (1984); Sproates v. State, 58 Md.App. 547, 473 A.2d 1289 (1984).
In summary, in 31 of the 34 post-Callahan, post-Sorrells Maryland cases to have considered the subject of entrapment,
As a group, the cases have unfortunately been clustered in that appellate posture least conducive to the growth of any body of legal doctrine on the subject of entrapment. Our precedents on the other two procedural postures are few.
Procedural Posture B — Entrapment as a Matter of Fact:
Shedding light on the questions of what to do when the entrapment issue is in the hands of the jury is a single case (but an exceedingly well reasoned one). One of the two necessary holdings in Bowser v. State, 50 Md.App. 363, 439 A.2d 1 (1981), was that entrapment had not been established, as a matter of law, and that the trial judge, therefore, was not in error in permitting the case to go to the jury.
The second holding was that the trial judge committed error in admitting untrustworthy hearsay evidence before the jury as the State sought to prove the defendant's criminal predisposition. Although the entrapment defense may open up areas of substantive inquiry not ordinarily accessible to the prosecution, such as the defendant's basic character and criminal predisposition, the ordinary rules of evidence for pursuing those inquiries still abide. We held, at 50 Md.App. 375, 439 A.2d 1:
In discussing the procedural incidents when the entrapment question is properly before the jury, Bowser considered both the level of the burden of persuasion and its allocation. The indispensable service of this thoroughly researched and meticulously analyzed opinion of Judge Chasanow, however, was that it extirpated from the procedural field (or should have, if read and followed) some vines of doctrinal confusion that were well on their way to choking off more rational growth. The effort in Bowser was doubly heroic because of the Olympian credentials of some of the sources of the misbegotten and intertwining strands and because of their gradually lengthening pedigrees. Bowser cut the Gordian knot.
The original source of confusion (perhaps even error) was no less a figure than Judge Learned Hand. Even Homer nods. The prosecution that ultimately led to the Supreme Court decision of Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), went to the Second Circuit Court of Appeals twice before making it to the Supreme Court. On the first occasion, Judge Hand, writing for the Court, reversed the conviction in the District Court and remanded for a new trial. United States v. Sherman, 200 F.2d 880 (2d Cir.1952). The reason for the reversal was that a supplemental jury instruction on entrapment was erroneous. The source of future confusion, however, came in dicta.
The only predecessor case on entrapment that Judge Hand felt called upon to analyze was the only Supreme Court pronouncement on the subject then extant, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Judge Hand properly distilled from Sorrells the fact that the entrapment defense consists of two elements. They are classically stated as they were restated in Bowser at 50 Md.App. 368-369, 439 A.2d 1:
Judge Hand then somehow came up with a conceptualization of the two elements and of their relationship that was not to be found in Sorrells. Instead of looking upon the two elements as both necessary conditions for a successful entrapment defense, he seemed to conceptualize the first element — the inducement — as the "defense" itself and the second element — predisposition — as the government's possible "reply" to the defense. Out of this, he wove, in dicta, the following conclusion, 200 F.2d at 882-883:
The cause for this illusion that there are opposing burdens is semantic. The appearance of such a phenomenon arises almost automatically out of the typical way in which the entrapment defense is phrased. The elements of the defense are traditionally stated in the affirmative, which is ordinarily good conventional usage. The first element, therefore, ends up being asserted in terms of what a defendant must show, whereas the second ends up being asserted in terms of what the prosecutor must show. A consistency in looking at the elements from a fixed vantage point (the defendant's or the State's but not both) would, of course, be much more desirable. It would result, however, in the mixing of affirmative and negative statements. Doctrinally, the elements of the defense that an accused must establish to make a prima facie case are:
Conversely, the State's burden of persuasion to overcome such a prima facie case is to prove:
Unfortunately, the definitions seldom come out that way. The linguistic imperative of parallelism prevails over doctrinal consistency and we get a mish-mash of a definition combining the presence of an inducement with the presence of a predisposition. We typically end up, simply through thoughtless phrasing, with a hybrid definition that combines the first half of the burden of production with the second half of the burden of ultimate persuasion. This is why our procedures get mixed up. Out of just such a semantic happenstance or quirk of language has arisen the misperception that these are separate and bi-directional burdens of persuasion.
It is even understandable why the traditional phraseology took the turn it did. Although a defendant must prove both elements as part of his burden of production, his major effort will generally be made as to the first — the inducement. It was inducement, therefore, that enjoyed the affirmative phrasing. Although the State may disprove either element as part of its counter burden of persuasion, its major effort will generally be made as to the second. It was predisposition, therefore, that enjoyed the affirmative phrasing — the usage "predisposed" rather than "non-predisposed" ends up in the definition. As a result, the mind is required to shift viewpoints halfway through the definition. Language plays tricks on us and, fifty years later, we have no idea how certain things came to be.
The whole notion of separate burdens of persuasion going in opposite directions might have been avoided if Judge Hand had focused on the more singular statement in Sorrells v. United States where, at 287 U.S. 448, at 53 S.Ct. 215, it defined entrapment as "the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them." (emphasis supplied). From that definition, the initial burden is more readily perceived as being on the defendant to prove that he was "otherwise innocent" rather than on the prosecution to prove that he was criminally predisposed.
Indeed, the Supreme Court's most recent stating of the definition, through Chief Justice Rehnquist in Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54, 60-61 (1988), proceeds from the fixed vantage point of what the defendant must show to establish a prima facie case:
This more careful stating of the definition helps us avoid the semantic snare to which earlier statements exposed us.
Judge Hand's conceptualization of the defense as one involving opposing burdens of persuasion has been almost universally rejected. To be sure, his own Second Circuit still utilizes his suggested approach. United States v. Braver, 450 F.2d 799, 801-803 (2d Cir.1971). Every other federal circuit, however, considers the defendant to have the initial burden of production as to both inducement and lack of predisposition and, if a prima facie case be established, the prosecution to have the ultimate burden of persuasion beyond a reasonable doubt to negate the defense by showing either the lack of an inducement or the presence of a criminal predisposition. Sagansky v. United States, 358 F.2d 195, 202-203 (1st Cir.1966); Kadis v. United States, 373 F.2d 370 (1st Cir.1967); United States v. Watson, 489 F.2d 504, 509 (3d Cir.1973); United States v. Groessel, 440 F.2d 602, 606 (5th Cir.1971); United States v. Marren, 890 F.2d 924 (7th Cir.1989); Notaro v. United States, 363 F.2d 169, 175 (9th Cir.1966); United States v. Christopher, 488 F.2d 849, 851 n. 1 (9th Cir.1973); United States v. Ortiz, 804 F.2d 1161 (10th Cir.1986); Johnson v. United States, 317 F.2d 127, 129 n. 2 (D.C. Cir.1963).
In larger terms, this is the only approach that makes sense. When a party has a burden of production on an issue — e.g. primary negligence, the existence of a contract, a legally sufficient case of burglary, a defense of entrapment — it bears the onus of producing some credible evidence which, if believed, would establish each and every necessary element of the thing to be proved. The burden of production is not to establish a prima facie case of inducement but to establish a prima facie case of entrapment (in all of its parts). If the prima facie case is established and the question is submitted to a jury, one party or the other then assumes the burden of persuasion. It is either for the State to persuade the jury that entrapment did not occur or for the defendant to persuade the jury that entrapment did occur. In either context, the thing to be proved is entrapment (not just a part of entrapment).
Although generally rejected elsewhere, Judge Hand's notion of separate and opposing burdens of persuasion found initial favor in Maryland. Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969), involved a very limited issue. The literal holding was that entrapment had not been established as a matter of law and that the trial judge was not, therefore, in error in having submitted the case to the jury. Simmons, however, engaged in extensive dicta. Some of the Simmons dicta adopted the Learned Hand dicta. After quoting at length and with approval the critical language of Judge Hand from United States v. Sherman, 200 F.2d 880 (2d Cir.1952), at 8 Md.App. 361-362, 259 A.2d 814, Simmons went on, at 8 Md.App. 364-365, 259 A.2d 814, to restate the notion in its own words:
Simmons actually added a wrinkle that was nowhere to be found in the opinion of Judge Hand. Not only were there to be two burdens of persuasion moving in opposite directions but the levels of persuasion were to be different as well. The defendant was required to persuade the jury that an inducement occurred by a bare preponderance of the evidence. Then the State was required to persuade the jury that the defendant was criminally predisposed beyond a reasonable doubt. Compounding the problem is that although this statement in Simmons is only dicta, it is dicta which, locally, through constant repetition, has taken on almost patriarchal status.
Bowser has been the antidote. Judge Chasanow recounted, without any remote suggestion of disapproval, the trial judge's instructions to the jury which placed the burden of persuasion, at the beyond a reasonable doubt level, on the State with respect to both aspects of the entrapment defense:
50 Md. App. at 367, 439 A.2d 1. Bowser also noted that, without any parsing of the defense into constituent elements, the State had conceded that "the State had the burden of proving beyond any reasonable doubt that the defendant was not entrapped." 50 Md. App. at 367 n. 4, 439 A.2d 1.
Bowser then indicated that the cases of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), and State v. Evans, 278 Md. 197, 362 A.2d 629 (1976), cast some doubt upon the constitutional propriety, under the Due Process Clause, of placing a burden of persuasion on the issue of inducement upon a defendant, after the defendant had successfully met his burden of production in that regard. Judge Chasanow then effectively, at 50 Md.App. 367 n. 4, 439 A.2d 1, ended the argument by quoting Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 262-263 (1971):
Once a defendant has met his burden of production by establishing a prima facie case of entrapment in all of its aspects, then the burden of persuasion falls upon the State to persuade the jury beyond a reasonable doubt that entrapment has not occurred. It may do this by persuading the jury that any of the necessary elements of entrapment did not exist. See United States v. Rodriguez, 858 F.2d 809, 814-815 (1st Cir.1988); United States v. Groessel, 440 F.2d 602, 606 (5th Cir.1971).
Procedural Posture C — Non-Entrapment As a Matter of Law:
In this final procedural posture, the judge will have ruled, as a matter of law, that there was non-entrapment. The literal ruling will have been that the defendant failed to make out a prima facie case. The jury, therefore, will have received no instructions on the subject of entrapment. The jury, moreover, will not even have been allowed to speculate about something which, for it, was a non-issue. By its very nature, this procedural problem will arise only in the context of a jury trial. The single appellate issue will be whether the defendant, as a matter of law, made out a prima facie case.
Three decisions of the Court of Special Appeals have considered this issue. They are Byrd v. State, 16 Md.App. 391, 297 A.2d 312 (1972); Fisher v. State, 28 Md.App. 243, 345 A.2d 110 (1975); and Adcock v. State, 66 Md.App. 454, 504 A.2d 1160 (1986). IT IS OUR CONCLUSION THAT THE FIRST OF THESE, BYRD v. STATE, WAS WRONGLY DECIDED. WE HEREBY OVERRULE IT. It was flawed in several regards and we will consider each of them in turn. Basically, it adopted a faulty framework of analysis. It was the third installment of what we deem to have been the Learned Hand — Simmons v. State — Byrd v. State — strain of confusing (and perhaps confused) analysis.
a. Byrd v. State: A False Light
It is Byrd v. State, of course, on which the appellant in this case, quite understandably, places his major reliance.
At the end of the entire case, the trial judge ruled that a prima facie case of entrapment had not been established. He declined to give any jury instructions on the subject. Byrd reversed that decision of the trial judge. We conclude that the Byrd analysis was faulty in two significant respects: the first, general; the second, more specific.
b: Flaw No. 1: An Exaggerated Sense of the Jury's Role
Even before we turn to its precise holding, we note that the Byrd opinion betrays an exaggerated sense of the role of the jury in resolving entrapment issues, a misperception that permeates the opinion. Instead of a careful analysis of the respective roles of jury and court, burdens of persuasion for the one but burdens of production for the other, there is an almost exalted view of the jury function on the subject of entrapment. The reason for the misperception is readily understandable. It involves a pitfall so basic and common that it deserves to be analyzed fully.
The case law abounds in broad, bold statements about entrapment's being characteristically a jury issue. It is an ABC of first semester Legal Method, however, never to take a statement, no matter how rhetorically attractive, as true, without careful and constant reference back to its originating context. Pronouncements lifted from context do not travel well. Such statements about the jury's role were correct in the limited seedbeds in which they sprouted. Once uprooted, however, they take on the appearance of universal verities. Many an unwary reader (including judicial opinion writers), oblivious of the generative context, has been led to transplant the attractive verity into all sorts of other settings in which it is sadly out of place.
Two particular situations have been especially prolific in giving rise to the broad, bold statements about entrapment being generally a question for the jury. One such context was the prominent and ongoing debate between the two competing theories as to the substantive nature of entrapment — the subjective test versus the objective test. "[U]nless it can be decided as a matter of law, the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman v. United States, 356 U.S. 369, 377, 78 S.Ct. 819, 823, 2 L.Ed.2d 848, 854 (1958). "The question of entrapment is generally one for the jury, rather than for the Court." Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54, 61 (1988).
Out of context, those statements seem attractive authority for the proposition that a judge should be quick to pass the entrapment issue to the jury and should be concomitantly hesitant to rule that a prima facie case has not been established. In context, of course, those statements did not remotely stand for any such thing. The statement in Sherman came as Chief Justice Warren, for the majority, was rejecting the argument of Justice Frankfurter, proponent of the alternative "objective test" conceptualization, that entrapment issues, as a matter of course, "should be decided by the judge, not the jury." The Sherman statement, moreover, was carefully limited by the proviso, "unless it can be decided as a matter of law." The entire discussion, in context, had nothing to do with when entrapment is an issue of law for the judge and when it is an issue of fact for the jury. It involved rather the very different ways in which the two competing conceptualizations of the entrapment defense handled actual issues of fact. Under the subjective test, such issues of fact were for the jury. Under the objective test, on the other hand, such issues of fact were for the judge. The very different question of when something is an issue of fact and when it is an issue of law was not remotely before the Court. The second quotation on the subject, from Mathews, came simply in the course of a long paragraph giving a thumbnail sketch of the evolution of entrapment law, citing the quotation from Sherman as sole authority for its own summarizing statement.
The second prolific source of broad, bold statements about the jury's role is, as we have discussed above, the posture in which 31 of the 34 Maryland cases to have considered entrapment has arisen. The almost exclusive claim has been that entrapment was affirmatively established, as a matter of law, so as to have entitled the defendant to a judgment of acquittal.
In all such cases, the contention was rejected. The actual decisions were that the stage of proof of entrapment was at either Procedural Posture C (non-entrapment, as a matter of law; no prima facie case) or Procedural Posture B (a question of fact for the jury), but in no event Procedural Posture A (entrapment affirmatively established, as a matter of law). The statements of the decisions, however, were not always so precise. Procedural Posture B (a matter of fact for the jury) was the immediately abutting stage of proof to the one in issue and the opinions, therefore, frequently looked no further back than to it. Statements, therefore, abound that entrapment was a question for the jury when, more carefully qualified, they should simply have said that entrapment was, at most, a question for the jury. Out of context, however, they seem to take on the authority of holy writ.
The most immediate culprit for Byrd's having been led astray, however, was Simmons v. State, 8 Md.App. 355, 364-365 n. 7, 259 A.2d 814 (1969). The issue before the Court in Byrd, of course, was whether the trial judge had committed error in ruling that a prima facie case of entrapment had not been established and in not submitting the issue to the jury. In ruling on that issue, Byrd not only relied exclusively on Simmons but more especially upon a single sentence of dicta in a far-ranging footnote of Simmons to the effect that entrapment issues are especially for the jury in Maryland because of Maryland's venerable and eccentric constitutional provision that in criminal cases, the jury is the judge of the law as well as of the facts. As it moved to its critical ruling on the prima facie case issue, Byrd stated its premises, at 16 Md.App. 403, 297 A.2d 312:
A few lines further on, it quoted with approval the Simmons dicta that it relied upon as essentially dispositive:
Proceeding from such a major premise, the syllogism in Byrd was fatally flawed at its outset. The constitutional provision that at the time of the Simmons and Byrd decisions had been Article XV, § 5 was, by a constitutional amendment in 1978, transferred verbatim and became Article 23 of the Declaration of Rights. It provides, in pertinent part:
More recent case law has made it clear that that curious constitutional relic has, through the interpretative process, been shrivelled up to almost nothing. Stevenson v. State, 289 Md. 167, 179, 423 A.2d 558 (1980), held that, "the jury's role in judging the law under Article 23 is confined `to resolv[ing] conflicting interpretations of the law [of the crime] and to decid[ing] whether th[at] law should be applied in dubious factual situations.'" (emphasis omitted). Montgomery v. State, 292 Md. 84, 89, 437 A.2d 654 (1981) pointed out that the jury's right to judge the law "is limited to those instances when the jury is the final arbiter of the law of the crime." In re Petition for Writ of Prohibition, 312 Md. 280, 318, 539 A.2d 664 (1988) was surprisingly candid, "What it all boils down to now is that the jury's right to judge the law is virtually eliminated." See also Barnhard v. State, 325 Md. 602, 602 A.2d 701 (1992).
Although its ratio decidendi is less than meticulously spelled out, Byrd arguably casts some doubt upon the right of the trial judge ever to rule, as a matter of law, that a prima facie case of entrapment has not been established, thereby keeping the issue from the jury. More recent decisions of this Court, however, have made it clear that that is not the case. Judge Powers pointed out in Fisher v. State, 28 Md.App. 243, 249, 345 A.2d 110 (1975):
Fisher affirmed the decision of the trial court not to submit the issue of entrapment to the jury. See also Bowser v. State, 50 Md.App. 363, 369, 439 A.2d 1 (1981); Kenney v. State, 62 Md.App. 555, 566, 490 A.2d 738, 743 (1985).
In Adcock v. State, 66 Md.App. 454, 504 A.2d 1160 (1986), we also affirmed the decision of the trial court that a prima facie case of entrapment had not been established and that there was, therefore, no genuine factual issue for the jury to consider. Pointing out that such a ruling is always one for the court to make, as a matter of law, we held, at 66 Md.App. 456, 504 A.2d 1160:
Fisher and Adcock are in the mainstream of American law on this procedural issue. As LaFave and Scott, Criminal Law § 5.2, at 428 (2d ed. 1986), pointed out:
The burden of production, thus, is squarely cast upon a defendant. That burden consists of making out a prima facie case of entrapment — not of one of the elements of entrapment, not of part of entrapment, but of entrapment. The burden of production on entrapment is no different than the burden of production on any other probandum. It requires offering some competent evidence which, if believed, could establish each and every necessary element of the defense. It remains finally to consider, therefore, what are the elements of entrapment.
c: Flaw No. 2: A Misreading of Learned Hand and of Simmons
A close reading of Byrd reveals that implicit in its analysis seems to be a fundamental misreading of its precedential authorities, particularly Simmons v. State, 8 Md.App. 355, 364-365, 259 A.2d 814 (1969). Byrd seems to have taken the dichotomy between the opposing sub-burdens of persuasion and to have mistaken it for the very different dichotomy between the burden of production and the burden of persuasion. This may or may not have been a misreading of what Judge Hand had to say about shifting burdens. In United States v. Sherman, 200 F.2d 880 (1952), Judge Hand's statement was simply too vague to permit one to state with certainty whether he was distinguishing between the burden of production and the burden of persuasion or whether he was distinguishing between two opposite sub-burdens within the more limited context of the burden of persuasion.
With respect to Byrd's primary precedential authority, the Simmons case itself, there can be no doubt. When Simmons talked about allocating to the defendant the burden of proving an inducement and to the State the burden of proving a predisposition,
Simmons, 8 Md. App. at 364, 259 A.2d 814. Simmons was not remotely speaking about what a defendant must do to establish a prima facie case. The subject of a prima facie case was not under discussion. It was rather within the limited context of how to instruct a jury, after a genuine dispute of fact had been submitted to it, that Simmons allocated the burdens of persuasion. It did more than allocate. It calibrated the opposing burdens of persuasion at two different levels, saying at 8 Md.App. 365, 259 A.2d 814:
Indeed, as Judge Powers pointed out in Fisher v. State, 28 Md.App. 243, 345 A.2d 110 (1975), burdens of persuasion — bare preponderance, clear and convincing, beyond a reasonable doubt — are only matters of concern to the jury in resolving a dispute of fact. When a judge is determining, as a matter of law, whether a prima facie case has been established at one end of the spectrum or whether a directed verdict on entrapment is appropriate at the other end of the spectrum, levels of persuasion are immaterial:
Fisher, 28 Md. App. at 251, 345 A.2d 110. When one is talking about a prima facie case, one does not even mention levels of persuasion.
It seems clear, however, that the Byrd opinion distilled from this dicta in Simmons the mistaken notion that the burden of production is on the defendant to show inducement alone and then the burden of persuasion is on the State to show, if it can, predisposition. The effect is to permit the defendant to establish a prima facie case by showing some credible evidence of a single element of the defense of entrapment, an inducement, and to be relieved of any obligation to show even a prima facie case as to the other element, the lack of a predisposition. Relying exclusively upon the Simmons dicta, Byrd held that evidence of inducement alone was enough, ipso facto, to establish a prima facie case of entrapment:
Byrd, 16 Md. App. at 403, 297 A.2d 312. We state unequivocally that that principle of law for which the Byrd decision seems clearly to stand is wrong and that the appellant's reliance on Byrd is, therefore, misplaced.
Governmental inducement is not all there is to a prima facie case of entrapment. It is an indispensable element that the governmental action "implant in the mind of an innocent person the disposition to commit the alleged offense." Sorrells v. United States, 287 U.S. at 442, 53 S.Ct. at 212-213. Sorrells speaks again of entrapment victims as "persons otherwise innocent." 287 U.S. at 448, 451, 53 S.Ct. at 215, 216. Sherman v. United States talks, at 356 U.S. 372, at 78 S.Ct. 821, of "tempting innocent persons into violations" and of the critical distinction between the "unwary innocent" and the "unwary criminal," 356 U.S. at 372-373, 78 S.Ct. at 821. The otherwise innocent character of the entrapped is an integral affirmative element of the offense. As United States v. Russell summarized the Supreme Court's holdings, at 411 U.S. 433, at 93 S.Ct. 1643, "[T]he principal element in the defense of entrapment was the defendant's predisposition to commit the crime." Summarizing the Supreme Court law on entrapment, Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967), pointed out that the Supreme Court had "never distinguished between the issues of inducement and predisposition, nor condemned the act of inducement apart from its effect on an innocent man."
The standard academic authorities are in complete accord that there are two elements in entrapment and that to meet the initial burden of production, therefore, the defendant must offer some credible evidence as to each. LaFave and Scott, Criminal Law (1st ed. 1972) § 48, at 371, defines entrapment:
Whitebread and Slobogan, Criminal Procedure (2d ed. 1986) § 19.04, at 453, is explicit about the burden being on the defendant with respect to both aspects of the defense:
d. The Burden of Production: The Federal Case Law
Despite the paucity of guidance from the Supreme Court and the Maryland case law on precisely what elements need be established to meet the burden of production, the decisions from the United States Courts of Appeals are legion and are enlightening. A pioneer case was Kadis v. United States, supra. It looked to inducement and predisposition as inseparable peas in the same pod, with the burden of production going to both:
Kadis, 373 F.2d at 373-374.
The First Circuit has been prolific on what it imaginatively calls the "entry-level" burden. Holding that a prima facie case had not been established, United States v. Coady, 809 F.2d 119 (1st Cir.1987), observed at 122:
See also United States v. Murphy, 852 F.2d 1, 5 (1st Cir.1988) ("The defendant has the initial burden to show some evidence that he was unready to commit the crime."); United States v. Polito, 856 F.2d 414, 416 (1st Cir.1988) ("The initial showing necessitates some evidence on each of the two prongs of the defense: inducement and unreadiness."); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.1988) (quoting Polito, 856 F.2d at 416) ("We note that the `initial showing necessitates some evidence on each of the two prongs of the [entrapment] defense: inducement and unreadiness.'").
The decisions from the Fourth Circuit are to the same effect. United States v. Osborne, 935 F.2d 32, 38 (4th Cir.1991), discussed the burden of production:
Indeed, in United States v. DeVore, 423 F.2d 1069 (4th Cir.1970), cert. denied 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971), the Fourth Circuit adopted the position taken by the First Circuit, although its analysis wandered back and forth between whether the defendant's failure to show "unreadiness on his part" was a failure to show an independent second prong of the defense or whether it was simply a fatal erosion of a single prong called "inducement." In either event, the failure was fatal to the burden of production. The Fourth Circuit stated, at 423 F.2d 1071:
The Fifth Circuit not only followed this lead but, as part of the two-pronged analysis, actually moved the "lack of predisposition" up to first position. United States v. Leon, 679 F.2d 534, 538 (5th Cir.1982), affirmed the decision of the trial judge not to give an instruction on the subject of entrapment:
See also United States v. Andrew, 666 F.2d 915, 922 (5th Cir.1982); United States v. Anderton, 679 F.2d 1199, 1201 (5th Cir.1982); United States v. Fischel, 686 F.2d 1082, 1085 (5th Cir.1982).
In United States v. Jackson, 700 F.2d 181, 186-187 (5th Cir.1983), the trial court's decision that no jury instruction was called for because a prima facie case had not been established was affirmed. The key element was the defendant's failure to show "a lack of predisposition on his part." Jackson, 700 F.2d at 186. Affirmative evidence of the defendant's criminal predisposition compounded his difficulty in trying to make a threshold showing of lack of such predisposition:
Jackson, 700 F.2d at 186-187. The case thus stands for the proposition that the State's evidence of predisposition need not be held in reserve until it becomes necessary to overcome the defendant's prima facie case but may actually be considered in forfending the defendant's establishment of a prima facie case in the first instance.
The Seventh Circuit is also in line. United States v. Marren, 890 F.2d 924 (7th Cir.1989), affirmed the trial judge's refusal to instruct the jury on entrapment. It pointed out the necessary elements that a defendant must prove to meet his initial burden of production, at 890 F.2d 929:
The most articulate statement of both the "what" and the "why" of this "lack of predisposition" aspect of the burden of production is that by Judge Richard Posner in United States v. Evans, 924 F.2d 714 (7th Cir.1991). The Seventh Circuit affirmed the ruling of the trial court that no prima facie case of entrapment had been established and that no jury instructions were called for. Judge Posner pointed out that even a successful solicitation of a defendant who yields only reluctantly to that solicitation is not enough to establish the prima facie case, stating at 924 F.2d 716:
Judge Posner went on to set out the reasoning which undergirds this indispensable element of the entrapment defense, as he observed at 924 F.2d 717:
The Tenth Circuit is also in line. United States v. Ortiz, 804 F.2d 1161 (10th Cir.1986), affirmed the decision of the trial judge that the defendant had not met his burden of production on the subject of entrapment. After distilling from statements of the Supreme Court the principle "that the underlying purpose of the entrapment defense is to protect an otherwise unpredisposed defendant from government coercion," it pointed out the twin aspects of the defendant's burden of production, at 804 F.2d 1165:
The implication in Byrd v. State that a defendant may meet his burden of production on the defense of entrapment by showing legally sufficient evidence of an inducement without also showing legally sufficient evidence of a lack of predisposition is, in view of the overwhelming case law, utterly untenable.
The Failure of the Appellant to Satisfy The Burden of Production
We hold that Judge Wise was not in error when he ruled that the appellant failed to make out a prima facie case of entrapment so as to entitle him to jury instructions on the subject. As we turn to why this is so, we cannot help but note that the two elements of the defense, at the edges, do blend into each other. Although it is a distinction without a difference, it is, at least under certain factual circumstances, debatable whether the two elements are so mutually exclusive as to permit separate analyses or whether they are rather two separate but closely related and partially overlapping aspects of an indivisible totality.
Acknowledging some overlap, we will nonetheless attempt to parse the components separately. In doing so, we hold that the appellant failed to establish a prima facie case with respect to either element of entrapment.
A. The Inducement:
An inducement, by its very nature, contemplates more than a request and an affirmative response. It embraces, as well, the indispensable notion of an effective catalytic agent. It is more than a solicitation.
It was not enough, therefore, for the appellant to show that confidential informant Wanda Hutson requested that he distribute marijuana to her. It was not enough to show that he responded affirmatively to that request. We see no catalytic factor in that exchange. We see nothing more than a simple request repeated three times within a space of ten minutes.
That Wanda Hutson repeated the request for the marijuana three times hardly constitutes what Stewart v. State, 232 Md. 318, 321-322, 193 A.2d 40 (1963), referred to as "repeated and persistent solicitation of a previously law-abiding citizen in order to overcome his reluctance to commit a crime." The solicitations in United States v. Evans, 924 F.2d 714, came not thrice in ten minutes, as here, but in the course of five separate visits to the defendant's store over a period of three months. In United States v. Velasquez, 802 F.2d 104, 106 (4th Cir.1986), undercover agents telephoned the defendants "over thirty times" to suggest that they furnish cocaine before the defendants finally acquiesced. In terms of satisfying the burden of production, that thirty-fold repetition was not deemed enough to transmute an ultimately successful solicitation into an actual inducement. "`A showing of solicitation alone, however, will not suffice to place the burden of going forward with the evidence on the government, since solicitation by itself is not the kind of conduct that would persuade an otherwise innocent person to commit a crime.'" 802 F.2d at 106 (quoting with approval United States v. DeVore, 423 F.2d 1069, 1071 (4th Cir.1970)).
That the appellant considered Wanda Hutson a friend hardly presented a trap for "the unwary innocent." In United States v. Evans, 924 F.2d 714, it was the defendant's high school classmate who was used as a government informant to solicit him. In Fisher v. State, 28 Md.App. 243, 253-255, 345 A.2d 110 (1975), the defendant claimed that he had been induced to distribute heroin by a confidential informant with whom he had been "close friends" for "six or seven years." We affirmed the trial judge's ruling that a prima facie case had not thereby been established, holding at 28 Md.App. 255, 345 A.2d 110:
There was in this case no appeal by Wanda Hutson to the appellant's pity or compassion. The marijuana was not to assuage Wanda Hutson's desperate addictive need nor for the succor of a sick friend nor to extricate Wanda Hutson from some dire straits. There was no pleading or begging of any sort. In United States v. Fischel, 686 F.2d 1082 (5th Cir.1982), the alleged inducement was pity for a friend. In holding that a prima facie case as to inducement had not thereby been established, the Court stated, at 686 F.2d 1086:
Even accepting the appellant's strained version of the facts, as we must, Wanda Hutson simply declared as she opened her conversation with the appellant that "she needed to make this deal with this person ... that she had befriended." In effect, she wanted to make a commercial sale of marijuana, a "deal," and asked the appellant to be her supplier. With only slight hesitation, and with nothing apparently to be gained, the appellant went for it.
His feeble explanation that he turned over the marijuana because 1) "I was doing it for a friend," or, shortly thereafter, because 2) "after a while, I got tired of listening to it so I just went ahead and give it to her" simply does not constitute adequate evidence of inducement. The appellant never explained why. We feel as did the Tenth Circuit, in ruling on the same issue, in United States v. Ortiz, 804 F.2d 1161, 1165-1166 (10th Cir.1986):
The evidence reveals no catalyst. It reveals no bait, no ploy, no lure, no gimmick. It reveals no adequate cause for the effect. What was the irresistible (or, at least, the unresisted) temptation? What precipitated the appellant's change of heart? The appellant complains that he was caught in a governmental mousetrap. All that he shows us, however, is a mousetrap without any cheese in it. That is not enough.
B. The Lack of Predisposition:
The appellant's evidence was equally bereft when it came to the other necessary element of an entrapment defense — the lack of readiness; the lack of a criminal predisposition on his part.
United States v. Groessel, 440 F.2d 602 (5th Cir.1971), discussed the type of evidence that might suffice for this purpose. There the evidence, which satisfied the burden of production, was that the defendant was "a fireman employed by the City of El Paso" and "enjoyed an unblemished reputation as an honest, law-abiding citizen." 440 F.2d at 606. United States v. Rodriguez, 858 F.2d 809 (1st Cir.1988), discussed the same element. The evidence of lack of predisposition was there held to be adequate to satisfy the burden of production.
Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 223 (1976), discussed how a defendant might go about proving lack of criminal predisposition:
And see United States v. West, 511 F.2d 1083 (3d Cir.1975).
The appellant, whose burden it was, offered no evidence whatsoever that he was a law-abiding citizen of upstanding reputation and unblemished criminal record, regularly employed at a full-time job and living within his income. He offered no proof of lack of criminal predisposition.
At most, the appellant seeks solace in the fact that when Wanda Hutson asked him to supply the marijuana that she would then sell commercially, he hesitated and had to be asked three times. He was in that regard very like Caesar upon the Feast of Lupercal "when thrice the people offered him a kingly crown, which thrice he did refuse." The appellant apparently believes, with Marc Antony, that criminal predisposition "should be made of sterner stuff." In United States v. Evans, 924 F.2d 714 (7th Cir.1991), Judge Richard Posner, on the other hand, gives hesitation much shorter shrift, at 924 F.2d 718:
The evidence in this case on the subject of predisposition actually pointed in the opposite direction. The appellant displayed familiarity with the illicit drug traffic. He apparently had a ready and available source of supply for marijuana. Even while claiming it was only for his personal use, he did not cautiously "stash" it at home for clandestine use under cover of darkness but carried it abroad with him, even upon social visits during the hours of the late morning. These are not the tell-tale characteristics of one innocent in the ways of the drug trade.
On the subject of criminal predisposition, moreover, the meaningful distinction is that between criminality and non-criminality, not that between felony and misdemeanor. The appellant acknowledged that he was a criminal on the very morning he claims to have been entrapped. He was guilty of the unlawful possession of marijuana. The distinction he seeks to make between a user and a dealer was not found to have been meaningful in United States v. Evans, 924 F.2d 714 (1991). There, the defendant claimed that "he was a purchaser of marijuana for personal use, not a dealer, was reluctant to become a dealer, and rebuffed the informant's solicitations the first five times that the informant visited him at the store." 924 F.2d at 716. The Seventh Circuit held that a prima facie case had not been established by the defendant. There was also a failure to make a prima facie case in United States v. Marren, 890 F.2d 924, 929 (7th Cir.1989), where the defendant acknowledged criminal conduct at the State level but claimed that he was entrapped into escalating his criminality up to the federal level. Such a claim availed him nothing. The driver of a getaway car might just as well claim that he had been entrapped into becoming the triggerman.
The clincher on the subject was the appellant's 1985 conviction for selling marijuana. The authorities are unanimously agreed that even prior similar crimes which never led to convictions, let alone prior convictions themselves, are highly relevant on the subject of criminal predisposition. Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 200 (1976), observed:
United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.1986), stated unequivocally:
The Maryland case law is completely in line. Snead v. State, 234 Md. 63, 66, 197 A.2d 920 (1964) (quoting Stewart v. State, 232 Md. 318, 193 A.2d 40), observed, "The appellant had a past record of narcotics law violations, and thus was not a `previously law-abiding citizen.'" In Bowser v. State, 50 Md.App. 363, 372, 439 A.2d 1 (1981), (footnote omitted), we observed, "The State may use various permissible methods to rebut an entrapment claim. Among the most common, are proof of prior convictions for similar offenses and evidence of similar criminal acts committed by the accused." See also United States v. Tyson, 470 F.2d 381 (D.C. Cir.1972); Carlton v. United States, 198 F.2d 795 (9th Cir.1952).
Conclusion
We hold that Judge Wise correctly ruled that the appellant had not met his burden of production and was, therefore, not entitled to have the jury instructed on the subject of entrapment. He failed to establish a prima facie showing that, in the words of Judge Chasanow in Bowser v. State, at 50 Md.App. 375, 439 A.2d 1, "the police ensnared in their net an innocent lamb lured astray" rather than a "predatory wolf pursuing the bait."
Other Contentions: An Inducement is Non-Hearsay
The other contentions will not detain us long. The appellant's second contention is simply a shadow version of the first. He claims that he was erroneously precluded from testifying about the inducements made to him by Wanda Hutson and was thereby hindered in establishing the defense of entrapment. When the appellant started to describe Wanda Hutson's initial conversation with him, the State interposed a hearsay objection. The objection was sustained. The appellant was initially precluded from testifying as to the reason Wanda Hutson gave for wanting his marijuana.
In appellate argument, the State continues to maintain that the out-of-court assertion by Wanda Hutson was hearsay. That is gibberish. The burden is upon the defendant to establish an inducement by, inter alia, showing an enticement. Ninety-nine times out of a hundred, the enticement will be verbal rather than non-verbal. What that means is that an enticement is generally an out-of-court assertion. "I want you to give me the marijuana because" 1) "you will receive my undying love if you do"; 2) "you will receive $1,000 if you do"; 3) "I will kill you if you don't." The allegedly entrapped defendant must be permitted to describe the alleged inducement in more than merely conclusory terms because, as we have discussed above, some enticements are legally cognizable catalysts and others are not. To prove that he was induced, the defendant must be permitted to testify as to the siren song he heard and to which he responded.
The State's response is that he should call the siren herself to the stand. Frequently, the siren is a confidential informant no longer readily available. That observation, however, is not pertinent. The defendant's version of the siren song will, in any event, almost always be far more seductive and enthralling than either 1) the real thing or 2) the version to which the siren herself might testify. Whether anyone will ever believe the defendant's version is beside the point. He is at least entitled to put his version on the table.
Hearsay, in its simplest formulation, is "an out-of-court assertion offered in court for the truth of the thing asserted." In the context of a "sting" operation or other governmental entrapment, the enticement, by its very nature, is never the truth. The truth would be, "I want you to sell me the marijuana so I can arrest you and send you to jail." The truth's gain would be effective law enforcement's loss.
When the State poses a hearsay objection to the defendant's recounting of the siren's out-of-court declaration, it is presumptively on the theory that the State would prefer to have the declarant herself on the stand, under oath, and subject to cross-examination with respect to her assertions. If the defendant were thus compelled to call the siren to the stand, however, the State's cross-examination would not go to the truth of the lyrical content of the siren song itself but only to the fact that the lyrics were sung as they had been described. The State would already know that the lyrics were false for the State had invented them in the first instance. Besides, to what end would the State pursue its examination of the truth of the allegedly seductive declaration? If the enticement were exposed as a blatant lie (as the State, as the author of the clever investigative lie, would have to acknowledge), that would not serve to diminish one whit the efficacy of the enticement in terms of the entrapment defense. When our concern is only with whether the words were said (or sung) and not with whether the words were true, that is classic non-hearsay.
The law's concern is only 1) with whether the State's agent uttered the enticement, 2) with whether the defendant heard the enticement, 3) with whether the defendant acted on the enticement, and 4) with whether the enticement was, by its very nature, legally sufficient to be treated as a possible "inducement." The defendant should, therefore, have been permitted to testify about what Wanda Hutson told him.
Having said all that, we nonetheless "upon [our] own independent review of the record, [are] able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict" and that such error was, therefore, harmless. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).
Defense counsel was asked to proffer what the appellant would have testified that Wanda Hutson had said. He proffered as follows:
The proffer, however, was only a starter. A review of the transcript makes it as clear as clear could be that in the course of the lengthy direct examination, cross-examination, and redirect examination of the appellant, every detail he had to offer as to what Wanda Hutson told him and as to why he ultimately turned over the marijuana to her was fully and completely exposed upon the face of the record. The appellant's development of his defense was not ultimately inhibited. It was only slightly delayed.
Other Contentions: The Jury Instruction on Distribution
The appellant's final contention is almost too cosmic to get a handle on. He claims:
The first count of the criminal information charged that the appellant "did distribute to Robert Bradley" the marijuana. At the end of the trial, Judge Wise proceeded to give a jury instruction with respect to distribution:
The appellant objected on the ground that since the information charged distribution to Robert Bradley, the instruction should have informed the jury that nothing less than the appellant's actual handing over of the marijuana to Robert Bradley would suffice for a conviction. Judge Wise declined to modify the instruction, observing: "I don't think that's the law that they have to prove the exact person under these circumstances. All of them in reasonable proximity to each other. I'm not going to slice it that thin."
Out of such humble origins now springs the three-fold argument that Judge Wise's failure to modify the jury instruction 1) broadened the charge against the appellant at the end of the trial from one of distributing to Robert Bradley specifically to one of distributing to anyone in the world generally, 2) deprived the appellant of his constitutional right to notice of the charges he was called upon to defend, and 3) somehow denied him, as well, his right against being placed twice in jeopardy.
At the trial level, however, nothing remotely touching upon either a deprivation of a constitutional right to notice or a denial of the right against being placed twice in jeopardy was even alluded to, let alone raised. There is nothing with respect to either of those claims that has been preserved for appellate review. In reply brief, the appellant alleges that such a response exalts form over substance. That is, mercifully, precisely what a preservation requirement does.
With respect to the third subcontention, however, there is no such balm in Gilead.
We flatly decline to follow counsel into such a doctrinal quagmire. Involved here was a simple communications problem that needs to be dealt with practically as the molehill that it is rather than as the mountain that it threatens to become. As any sentient auditor of the trial, presumably including the appellant, could not have helped but perceive, from first to last the State, undeviatingly, charged and proved the distribution of marijuana to Deputy Robert Bradley. From square one, the investigative plan was to have the undercover policeman pose as a willing buyer, be introduced to the appellant by the Confidential Informant Wanda Hutson, and ultimately to make a purchase of marijuana from the appellant. Under either the State's version or the appellant's version of the facts, that is precisely what occurred.
Under the State's version, the appellant handed Wanda Hutson the plastic baggie containing the marijuana as soon as he entered her home. She, in turn, handed it to Deputy Bradley. Both the conversation about the weight of the marijuana and the payment of the purchase price, however, were directly between Deputy Bradley and the appellant. Even under the appellant's version, Wanda Hutson asked him for his marijuana so that she could consummate her "deal" with Robert Bradley, then sitting in the adjacent room. Albeit following a brief hesitation, the appellant turned over the marijuana to Wanda Hutson knowing of its immediate destination, saw her go directly into the living room to consummate the sale and a few minutes later, at her beckoning, carried the scales from the kitchen to the living room for no conceivable purpose except to weigh the marijuana. Under either version, the marijuana, as an object of sale, went from the appellant's pocket into Robert Bradley's hands within a space of ten minutes and with the appellant's full knowledge.
The jury had a simple little question that might occur to anyone. Does distribution from the appellant to Robert Bradley contemplate that the appellant must deliver "seisin" of the marijuana physically from his hand directly into the hand of Robert Bradley or is it enough to do so indirectly through the intermediary of Wanda Hutson? The second time the jury came back requesting clarification, its question was precisely that:
In the Tinker-to-Evers-to-Chance combination, can Tinker be said to deliver the ball to Chance through the intermediary of Evers or does Tinker deliver the ball only to Evers and to no one else? Our answer is that Tinker delivers to either or to both.
The judge's declination to give any supplemental instruction permitted the jury to conclude, as they did, that delivery or distribution could be indirect as well as direct. We agree with that conclusion. Under the circumstances, the appellant's obsession with whether he placed the marijuana literally into the hands of Wanda Hutson rather than into the hands of the ultimate purchaser is much ado about nothing. The inconsequential distinction between "direct and indirect" became distorted into a distinction between "Bradley and others." What was nothing more than a question about the modality of the transfer, and could easily have been explained in those terms, became magnified into a question about the ultimate recipient of the transfer. Without anguishing the point any further, we see no error.
JUDGMENTS AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
FootNotes
After quoting Simmons, with approval, for several pages, Judge Finan then applied the newly adopted subjective test, at 258 Md. 560, 267 A.2d 193:
See also United States v. Rodriguez, 474 F.2d 587 (5th Cir.1973); and cf. Sherman v. United States, 356 U.S. 369, 375, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).
The basic philosophy was set out by Chief Justice Hughes in Sorrells v. United States, at 287 U.S. 451-452, at 53 S.Ct. 216:
Chief Justice Warren spoke to the same point in Sherman v. United States, at 356 U.S. 373, at 78 S.Ct. 821:
The general law in this regard is well stated by LaFave and Scott, Criminal Law (2d ed. 1986) at 426:
9 Md. App. at 355, 264 A.2d 119.
It is obviously not some erosion of a defendant's mens rea that is at the heart of the defense because the same seductive influences that would establish the defense when those influences are employed by a governmental agent are utterly inefficacious to establish a defense when employed by a private person. The erosive effect on the mens rea, if that were all that mattered, would be the same, of course, whether the temptation emanated from a public source or a private one.
LaFave and Scott, § 5.2, at 422 Criminal Law (2d ed. 1986). See also United States v. Mers, 701 F.2d 1321 (11th Cir.1983) cert. denied 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); Henderson v. United States, 237 F.2d 169 (5th Cir.1956).
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