SORIANO v. STATE

SORIANO v. STATE
2011 OK CR 9
Case Number: F-2009-579
Decided: 02/16/2011
JOSE SALOME GUIZAR SORIANO, Appellant, v. STATE OF OKLAHOMA, Appellee.

OPINION

A. JOHNSON, PRESIDING JUDGE:

¶1 Jose Salome Guizar Soriano, Appellant, was charged and convicted of two counts of Unlawful Delivery of a Controlled Drug (methamphetamine), under

FACTS

¶2 On January 24, 2008, Jason Tucker, an agent with the Oklahoma Bureau of Narcotics and Dangerous Drugs, purchased approximately 3 grams of methamphetamine from Defendant Jose Salome Guizar Soriano. Tucker testified that he was the case agent in an investigation of drug trafficking by Jose Soriano.

¶3 On February 5, 2008, Carreras, Tucker, and other officers again met to set up a methamphetamine purchase from Soriano. This time Carreras called Soriano and asked him to sell "an ounce" for $1600. In a second call from Carreras, Soriano agreed to do so and to meet at "the laundry" again. Tucker and Carreras were waiting near the laundromat when Soriano arrived. Soriano asked Tucker to give him the money, and then he would go get the methamphetamine. Tucker would not agree to that plan, however, and asked Soriano if he had anything with him. Soriano said he had a half-ounce at home and left to go get it. In a third call, this time from Soriano, Soriano indicated that he had a full ounce and asked Tucker and Carreras to meet him at a park by the high school. When Tucker rejected that proposal, Soriano got frustrated and hung up. In a fourth call, this time from Carreras to Soriano, Carreras emphasized that she had the money, that Tucker was "nervous" and would not go to the park, and that if he wanted the money, Soriano should come to the laundromat and get it.

¶4 On February 25, 2008, Agent Tucker called Soriano and told him that he wanted to buy an ounce of methamphetamine.

¶5 On March 17, 2008, Tucker again contacted Soriano and told him that he wanted to buy an ounce of methamphetamine the next day.

¶6 Counts I through IV were based upon these four methamphetamine sales, in the order that they occurred.

¶7 Soriano raises six claims of error. Only one merits full discussion. He argues that his sale of methamphetamine was the product of unlawful entrapment by law enforcement agents. As a subset of that claim he argues that he was the victim of "sentencing entrapment," i.e., that the continuing efforts of the government's agent to buy methamphetamine from him in larger quantities resulted in an unfair increase in his punishment liability.

¶8 We conclude the State did not unlawfully entrap Soriano and affirm this judgment and sentence.

ENTRAPMENT

¶9 In Proposition I, Soriano challenges the trial court's refusal to instruct his jury on the law of entrapment, which was his defense at trial. Soriano requested, both orally and in writing, that his jury be instructed according to Oklahoma's uniform jury instructions on entrapment, as well as some additional instructions drafted by his counsel.

¶10 After hearing the arguments of both parties, the trial court concluded that entrapment instructions were not warranted because (1) the State's actions in setting up the sales by Soriano did not "rise[] to the level of inducement"; and (2) the fact that Soriano sold on four different occasions "in itself creates a predisposition to commit this crime."

¶11 Regarding the meaning and application of the defense of "entrapment," Soriano and the State invoke cases from both this Court and the United States Supreme Court. This Court recognizes that the content and interpretation of this defense in Oklahoma is, first and foremost, a matter of state law, so long as no principles of federal or constitutional law are violated. We also recognize, however, that, particularly in more "modern" cases, this Court has often relied upon and invoked the cases of the United States Supreme Court, in defining and interpreting the parameters of Oklahoma's entrapment defense. A review of some of the seminal cases from both the Supreme Court and this Court demonstrates (1) that there are two fundamentally different approaches to this defense, and (2) that although this Court's early cases took a different approach, this Court has ultimately chosen to follow the approach of the United States Supreme Court and to interpret this defense as more about protecting persons who are "otherwise innocent" of the crime at issue, than it is about controlling "unsavory" or deceitful police conduct.

I. United States Supreme Court Entrapment Cases

¶12 The United States Supreme Court has long recognized the defense of entrapment and has sought to draw a line between the proper action of law enforcement in revealing criminal activity (for which the defense is not available) and the improper action of law enforcement in essentially creating criminal activity, by a person who would not otherwise have been involved in such activity, for which the entrapment defense is available as a matter of public policy. In Sorrells v. United States,

It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. . . . The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

Id.

¶13 In Sherman v. United States,

¶14 In United States v. Russell,

¶15 In Jacobson v. United States,

¶16 The Jacobson Court concluded: "When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene." Id. at 553-54, 112 S. Ct. at 1543. Hence the Supreme Court continued to focus on an evaluation of the defendant's pre(government-contact)disposition as the central issue in determining whether the entrapment defense is available.

II. The Entrapment Defense in Oklahoma

A. Early Cases (Pre-1932 Sorrells Decision)

¶17 In Oklahoma, our entrapment doctrine had a rather different beginning, though it has ultimately reached essentially the same conclusion. Our earliest Oklahoma entrapment cases focused upon the propriety of the method (and type of persons) used to catch the defendant, rather than upon whether the defendant was ready and willing to commit the crime at issue; i.e., our earliest cases adopted an approach much like that of the non-majority Justices in Sorrells, Russell, and Sherman.

¶18 In Shouquette v. State, 1923 OK CR 311, 25 Okl.Cr. 169, 219 P. 727, this Court reversed the defendant's robbery conviction, where the robbery was instigated, planned, and largely carried out by an informant (described as "an ex-convict and all-around crook"), who was hired by the Oklahoma Bankers' Association to help apprehend bank robbers, even if it meant participating in an actual robbery. 25 Okl.Cr. at 171, 219 P. at 728. This Court determined that "entrapping" someone suspected of planning a crime was usually acceptable, but not when the "decoy" was taking the lead:

Ordinarily, it is not against public policy for officers to set a trap for one suspected of planning the commission of a crime, and, if he commits the crime, even though aided or encouraged by the officer who laid the trap, the fact that he was so entrapped will be no defense. This rule will not apply, however, where the decoy proposed a robbery, and was the chief moving actor in the forcible taking of the property.

Id.

¶19 Hence our early Oklahoma entrapment cases focused upon determining whether or not the defendant "initiated" or "instigated" the crime and were quite suspicious of government agents and also private citizens being overly involved in criminal activities, in order to catch would-be criminals. For example, in Stevens v. State,

"[T]he test of criminality is, Did the officers or those acting under them first suggest the commission of the criminal act or lure the accused into the commission of such acts or perform any of the essential acts constituting the offense? If so, a sound public policy will not uphold a conviction."

Id.

¶20 Thus these earliest Oklahoma entrapment cases, which preceded the Supreme Court's 1932 Sorrells decision, were more concerned with the role and behavior of those who "entrapped" the defendant than they were with whether the defendant was ready and willing to commit the crime at issue.

B. Cases from the "Middle Period" (1932-1958)

¶21 From 1932 to 1958, however, this Court's entrapment analysis began to include an evaluation of whether or not the defendant was "otherwise innocent," were it not for the actions of others inducing him to crime. Nevertheless, cases from this "middle period" also continued to emphasize the importance of who "initiated" the crime. For example, in Lee v. State,

¶22 Cases from this middle period continued to show a significant public policy concern regarding the use of known criminals to entrap persons not previously involved in crime, particularly when the known criminal was the "instigator" of the crime at issue.

C. Post-Sherman Cases (1958-present)

¶23 After the Supreme Court's 1958 Sherman decision, however, this Court began to focus its entrapment decisions almost exclusively on the question of whether the defendant was "ready and willing" or "predisposed" to commit the crime at issue. In Crosbie v. State,

¶24 The Crosbie Court found that the defendant was not entrapped into the crime of practicing dentistry without a license, because the privately-arranged informant "did not have to use persuasion or inducements to obtain an appointment for dental work" and because the defendant had an office set up for such work and was "prepared to perform like services for any customer who might appear." Id. at ¶ 15, 330 P.2d at 606. Hence the Court concluded that because the defendant was ready and willing to break the law at issue, thereby showing that the "intent to violate the statute in question originated in the mind of the defendant," the defendant was not entrapped. Id.

¶25 Subsequent cases from this Court continued to focus upon whether the defendant was ready and willing to violate the law as the critical issue in entrapment analysis.

¶26 Hence since at least 1958, this Court's approach to the entrapment defense has consistently followed or paralleled the approach of the United States Supreme Court. Furthermore, this Court, like the Supreme Court, has been willing to reverse convictions--even where a jury rejected the entrapment defense--and find entrapment as a matter of law, where the facts strongly suggest that an innocent person was unfairly lured or pressured into committing a crime that he or she otherwise would not have committed.

D. Proving Entrapment

¶27 This Court's post-Sherman cases have also repeatedly recognized that where evidence is conflicting or where different inferences can be drawn from the evidence, whether or not the entrapment defense has been established is a jury question.33 And in this Court's 1976 decision in McInturff, we clarified that where trial evidence adequately raises the issue of entrapment, the State has the burden to prove, beyond a reasonable doubt, that the defendant was not entrapped. McInturff v. State, 1976 OK CR 226, ¶¶ 11-12, 554 P.2d 837, 840-41 (overruling prior cases to the contrary). These cases have likewise consistently recognized that a defendant does not have to testify or put on any witnesses or evidence to adequately raise the entrapment defense. The defense can be raised entirely through cross-examination of State witnesses, if this testimony can be interpreted to establish entrapment.34 Such cases are in accord with the Supreme Court's decision in Sherman, where the Supreme Court held that the defendant had established entrapment as a matter of law, even though all the evidence in support of this defense was brought out through cross-examination of the government's witnesses.35

¶28 On the other hand, this Court has also recognized that where no trial evidence actually supports the defendant's entrapment defense--or where trial evidence conclusively demonstrates that the defendant was predisposed to commit the crime at issue--a trial court can properly decline to instruct the jury on this defense.

E. Lies, Tricks, Deception, & Government Stings

¶29 Although early Oklahoma entrapment cases expressed great discomfort with the use of known "convicts" and "crooks" to catch individuals in the act of committing a crime, and also with government and private actors "instigating" or "initiating" criminal activity, over time this Court has entirely shifted the focus of its entrapment doctrine to focus more upon who is being "entrapped," rather than how it is being done.

¶30 In cases after 1932, in particular, this Court began to recognize the appropriateness of using some amount of "artifice" to catch criminals.

¶31 Trickery and deceit are natural and inherent parts of any sting operation. The government agents and informants directly involved in such stings are often misrepresenting their true identities, and they are always misrepresenting their true intentions, i.e., they are purporting to be willing participants in a crime, when they are actually trying to "catch" the target in the commission of that crime, in order to apprehend, prosecute, or perhaps use that target in a future sting. Hence the entrapment question is more about what kind of person the government has set out to catch, and whether that person was already ready and willing (i.e., "predisposed") to commit the crime at issue when he or she was first approached, than it is about whether the government tricked or deceived that target. The public policy behind the entrapment defense is meant to discourage the government from corrupting the innocent (otherwise law-abiding citizens) in its legitimate quest to apprehend and prosecute the wicked (those who are already violating or already ready and willing to violate the law at issue). This Court notes that Oklahoma's current uniform instruction, OUJI-CR(2d) 8-25 (Supp. 2005), accurately and succinctly captures the true nature of our modern entrapment defense.

¶32 In drug cases, in particular, this Court has repeatedly recognized that a trial court can properly decline a defense request to instruct the jury on entrapment where the evidence brought out at trial adequately establishes that the defendant was predisposed to commit the offense at issue.

¶33 Furthermore, in Reyes v. State,

¶34 In Jacobson,

Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate "sting" operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant's predisposition.

Id.

¶35 Consequently, this Court recognizes that in situations like the current case, where a defendant readily agrees to commit the crime at issue, where it can be reasonably assumed (as it can in the illegal drug context) that the defendant would know that the proposed act is illegal, and where there is no evidence suggesting that the defendant is an "unwary innocent" who is being unfairly enticed or duped into the crime at issue, trial courts can properly decline to give any instructions on entrapment. In such situations, absent countervailing evidence suggesting the defendant's unpreparedness or unwillingness to commit the crime at issue, the very commission of the criminal act, by itself, adequately establishes the defendant's predisposition--thereby defeating the entrapment defense.

¶36 It is the trial court's job to properly instruct the jury on the applicable law at trial, based on the evidence presented at trial.

¶37 In the current case, the trial court did not err in declining Soriano's request to instruct his jury on the law of entrapment. This Court has thoroughly reviewed the evidence presented at trial, and we find that the totality of the evidence clearly established that Soriano was indeed predisposed to commit the drug crimes for which he was convicted. Soriano correctly notes that he had no prior convictions, that in each of the four transactions, it was the State's undercover officer or the confidential informant who initiated the drug sale, and that no money or drugs were found on his person or in his home when he was eventually arrested. Such facts can be supportive of a defendant's entrapment defense and must be considered by the trial court in evaluating whether to instruct the jury on this defense. However, in a case like the current one, where there is no evidence that the defendant showed any hesitation or reluctance to engage in the crime at issue when given the opportunity to do so, i.e., that the defendant readily engaged in the (obviously) criminal activity proposed without any need for substantial pressure or persuasion, the defendant's predisposition to commit the crime has been established, thereby defeating any entrapment defense.

¶38 The fact that Soriano had to be persuaded/pressured to meet Tucker and Carreras at the location they selected for a particular drug exchange (the laundromat), rather than at the location of his choice (the park), is not relevant to the predisposition issue in this case. Soriano did not have to be pressured or persuaded to sell methamphetamine to Tucker. Soriano readily agreed to the opportunity to commit this crime on each occasion that it was offered--though sometimes it would take him a while to get to the agreed meeting spot, and he did not always provide as much methamphetamine as he was purporting to provide. Furthermore, in the current case, rather than supporting an entrapment claim, Soriano's actions in trying to change or control the meeting place where the drug exchanges would take place tended to demonstrate that he was an experienced and somewhat wary (i.e., cautious) criminal, without at all suggesting that he was a wary or unwary "innocent." Although some of the trial court's initially-stated reasons for declining to instruct Soriano's jury on entrapment are not in accord with the analysis herein, the trial court's decision to reject the proffered instructions and the court's finding that the evidence presented at trial was not "sufficient to raise the defense" are both correct.

F. Sentencing Entrapment

¶39 Within his Proposition I claim, Soriano also raises a secondary claim of "sentencing entrapment." In essence, Soriano is arguing that even if he was predisposed to sell methamphetamine, the trial evidence did not establish that he was predisposed to sell methamphetamine in trafficking quantities. In Leech v. State, 2003 OK CR 4, ¶ 12, 66 P.3d 987, 990, this Court recognized "sentencing entrapment" as a viable defense under Oklahoma law. We defined this defense as applying to situations where "the defendant, although intending to commit a lesser offense, has been entrapped into committing a greater offense."50 We further recognized that drug-related crimes--where the amount of the drug that is possessed, distributed, manufactured, etc., often has a determinative and powerful impact regarding both the crime charged and the potential sentence--are a context in which sentencing entrapment can certainly occur and also that a defendant is entitled to have his jury instructed on this defense where the facts presented at trial support it.51

¶40 Although Soriano orally requested that his jury be instructed on sentencing entrapment and cited Leech, he did not proffer a written instruction on this defense, and the trial court declined his request. We find that the trial court properly declined to instruct Soriano's jury on sentencing entrapment. Although it was Tucker who first proposed that Soriano sell him an "ounce" or "O.Z." of methamphetamine, and who continued asking Soriano to sell him this amount in subsequent sales, Soriano never once showed any hesitation about selling this much, nor did he ever have to be pressured or persuaded to sell this "trafficking quantity" of methamphetamine.

¶41 In Proposition II, Soriano asserts that a particular statement during the testimony of Agent Tucker constituted an improper "evidentiary harpoon," for which defense counsel's request for a mistrial should have been granted.

¶42 In Proposition III, Soriano challenges the trial court's refusal to let him cross-examine Agent Tucker about the prior felony convictions of his confidential informant, Georgina Carreras. Soriano adequately preserved this claim at trial. Nevertheless, Soriano presents no relevant authority in support of his claim and no cogent explanation of why he should have been allowed to impeach the credibility of Tucker via the prior convictions of Carreras--who both the State and Soriano chose not to call as a witness. The trial court's ruling did not improperly impair Soriano's ability to present his defense, nor did it unfairly limit his ability to challenge Tucker's credibility.

¶43 In Proposition IV, Soriano asserts that the trial court improperly admitted Tucker's testimony that during an unrecorded, post-arrest interview at the police station, Soriano confessed to selling methamphetamine to Tucker.

¶44 In Proposition V, Soriano raises a prosecutorial misconduct claim and specifically challenges two particular statements. First, Soriano asserts that the prosecutor "misstated the facts" during his opening statement--when he stated that at the conclusion of the investigation, the evidence was submitted to the OSBI crime laboratory, which "tested the substance," weighed it, and determined "it was all methamphetamine." Second, Soriano asserts that the prosecutor made an "inappropriate comment" during closing argument--when he suggested Tucker had testified that he "had been investigating for about a year before he found someone that could get close to Mr. Soriano." Soriano did not challenge either of these prosecutorial assertions at trial; hence we review these prosecutorial misconduct claims only for plain error.

¶45 Regarding his first challenge, Soriano maintains that it was false for Tucker to assert that the tested evidence was "all methamphetamine," because the substance he sold to Tucker on March 31, 2008, did not actually contain any methamphetamine. Soriano's March 31 sale of white powder to Tucker was originally charged as an additional trafficking count, i.e., Count V, but this count was dropped prior to trial, when it was determined that no actual illegal drugs were contained in the substance sold. This sale was never mentioned at Soriano's trial. This Court notes that the challenged statement occurred after the prosecutor had just summarized the four counts charged against Soriano and the transactions on those four dates. Hence it was not at all false or misleading for the prosecutor to then state that when the evidence was tested, it was "all methamphetamine."

¶46 In Proposition VI, Soriano raises a cumulative error claim. Yet this Court has not found error within any of Soriano's claims. Hence Soriano's Proposition VI cumulative error claim is likewise rejected accordingly.

¶47 We find that neither reversal nor modification of Soriano's convictions and sentences is required by the law and evidence.

Decision

¶48 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY
THE HONORABLE DANITA G. WILLIAMS DISTRICT JUDGE

APPEARANCES AT TRIAL

MATTHEW R. ORENDORFF
WILLIAM K. ORENDORFF
ATTORNEYS AT LAW
P.O. BOX 129
SALLISAW, OKLAHOMA 74955
ATTORNEYS FOR DEFENDANT

MARION FRY
MARGARET NICHOLSON
ASSISTANT DISTRICT ATTORNEYS FOR
LEFLORE COUNTY
P.O. BOX 880
POTEAU, OKLAHOMA 74953
ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL

VIRGINIA SANDERS
APPELLANT DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
LORIS S. CARTER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST ST.
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: A. JOHNSON, P.J.
Lewis, V.P.J.: Concur
Lumpkin, J.: Concur
C. Johnson, J.: Concur
Smith, J.: Concur

FOOTNOTES

1 The jury's verdicts were imprisonment for 10 years and a $20,000 fine on Counts I and IV and imprisonment for 20 years and a $100,000 fine on Counts II and III. None of these sentences are subject to the "85% Rule" under 21 O.S. Supp.2007, § 13.1 or 63 O.S.Supp.2007, § 2-415(D)(4).

2 Although a similar earlier statement by Tucker was objected to and struck by the trial court--and forms the basis for a Proposition II challenge by Tucker--this later statement came in without any defense objection.

3 Carreras initially called Soriano's cell phone around 11:30 a.m., while in the presence of Tucker and other officers, to set up the deal. When Soriano was late getting to the agreed meeting spot, Carreras sent him several text messages to see if he was coming and when he would arrive.

4 The net weight of the plastic baggie containing the crystalline substance was 3.33 grams. Subsequent testing revealed the crystalline substance to be 33.0% methamphetamine.

5 During this conversation, which was recorded, Soriano asks Carreras, "What do you want me to do?" She answers, "Bring it to me Jose. Please? I'm sitting here with the cash. All you gotta do is bring it over here to me Jose." Soriano responds by agreeing to come.

6 The net weight of a plastic evidence bag containing the paper towel with the bag with the crystalline substance inside was 26.37 grams. Subsequent testing revealed the crystalline substance to be 40.0% methamphetamine.

7 Carreras was not involved in Tucker's contacts with Soriano after the second sale. An audio recording of Tucker's side of the conversation during the calls leading up to this third transaction is quite clear and is consistent with Tucker's testimony. In the first call, Tucker asks Soriano if he can "hook him up with an O.Z." (meaning ounce), and in the second call, Tucker asks Soriano if he has "an ounce," to which Soriano responds, "yeah," and they agree to a price of $1400.

8 Tucker testified that the video recording of this third sale, which was admitted at trial, was made by a tiny recorder, which looked like a button on his shirt. The video clearly shows Soriano sitting in his truck, though the audio is not very clear, nor is the exchange visible.

9 The recording of this meeting includes a discussion between Tucker and Soriano about how nice Soriano's truck is and Tucker talking about how he is working on an oil rig by Fort Smith. Tucker complains that he was not able to make any money on the previous "ounce," because he paid $1600 for it. Soriano maintains that he paid $1450 for what he is about to sell Tucker, but then agrees to a price of $1400.

10 The net weight of a plastic evidence bag containing the plastic baggie bindle with the crystalline substance inside was 22.41 grams. Subsequent testing revealed the crystalline substance to be 43.0% methamphetamine.

11 In the audio recording of Tucker's side of this conversation, which is quite clear, Tucker tells Soriano he is "going to be down that way tomorrow" and asks if they can "hook up for an O.Z." After Tucker repeats the request, Soriano apparently agrees, and Tucker says he will call him.

12 Although the video recording of this encounter, done with the same tiny device, is not very clear, Tucker can be heard saying that something "feels a little light," and then going back and forth with Soriano until Soriano offers, "give me $1200."

13 The net weight of the Marlboro package, including the bag with the crystalline substance, was 13.53 grams. Subsequent testing indicated that the substance was 9.49% methamphetamine.

14 Soriano was originally charged with an additional methamphetamine trafficking count (Count V), based upon a sale to Tucker on March 31, 2008. This count was dismissed prior to the start of trial, however, when it was determined that the substance sold on this date did not contain any methamphetamine. This final transaction was not mentioned during Soriano's trial.

15 Soriano requested Oklahoma's three uniform instructions on entrapment, OUJI-CR 8-24, 8-25, and 8-26, as well as a modified version of OUJI-CR 8-25 (regarding the burden of proof on entrapment), an instruction defining the term "inducement," and a final instruction listing 14 factors that the jury could consider in deciding the issue of "predisposition."

16 The trial court noted orally that it was relying, in particular, on the decision in Anderson v. State, 1988 OK CR 291, 765 P.2d 1232, in support of its decision. In a separate written order that same day, the trial court rejected Soriano's request for entrapment instructions by finding, more generally, that "evidence sufficient to raise the defense was not produced."

17 See, e.g., Hancock v. State, 2007 OK CR 9, ¶ 98, 155 P.3d 796, 819.

18 In Sorrells, the Supreme Cout reversed the defendant's convictions for possessing and selling whiskey, because his jury was not instructed on the law of entrapment. 287 U.S. 436, 452, 53 S. Ct. 210, 216. The Sorrells analysis focused upon the character of the defendant, noting that "defendant had no previous disposition" to commit the crime committed and was "an industrious, law-abiding citizen, and that the agent lured defendant, otherwise innocent, to its commission by repeated and persistent solicitation[,] in which he succeeded by taking advantage of the sentiment aroused by reminiscences of their experiences as companions in arms in the World War." Id. at 441, 53 S. Ct. at 212. The Sorrells Court acknowledged that the "price" of the entrapment defense would be an examination of the defendant's character and conduct, in order to determine whether he or she was actually "otherwise innocent": "[I]f the defendant seeks acquittal by reason of entrapment[,] he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." Id. at 451, 53 S. Ct. at 216.

19 The Sherman Court found entrapment as matter of law, where a confidential informant, who met defendant while they were both seeking treatment for drug addiction, purported to be suffering from withdrawal and repeatedly asked defendant to obtain drugs for him, until the defendant eventually acquiesced. 356 U.S. 369, 371, 78 S. Ct. 819, 820.

20 Compare Sorrells, 287 U.S. at 453-59, 53 S. Ct. at 217-19 (Roberts, J., concurring in reversal of convictions, joined by Justices Brandeis and Stone) (arguing that entrapment doctrine should be based upon protecting "purity" of government and courts, by refusing to allow convictions obtained through reprehensible government conduct, regardless of defendant's prior acts or reputation), with Sherman, 356 U.S. at 378-85, 78 S. Ct. at 823-27 (Frankfurter, J., concurring in result, joined by Justices Douglas, Harlan, and Brennan) (criticizing majority opinion as lacking sound theoretical basis and arguing that focus of entrapment doctrine should be propriety of police conduct, rather than defendant's character or predisposition). See also Masciale v. United States, 356 U.S. 386, 388, 78 S. Ct. 827, 828, 2 L. Ed. 2d 859 (1958) (rejecting entrapment appeal where jury rejected defense and evidence was sufficient for jury to find defendant "was ready and willing to search out a source of narcotics and to bring about a sale").

21 Compare Russell, 411 U.S. 423, 428-36, 93 S. Ct. 1637, 1641-45 (maintaining primacy of "predisposition" as central issue in entrapment defense), with id. at 436-39, 93 S. Ct. at 1645-46 (Douglas, J., dissenting, joined by Justice Brennan) (preferring approach of concurring Justices Roberts and Frankfurter, in Sorrells and Sherman, respectively), and id. at 439-50, 93 S. Ct. at 1646-52 (Stewart, J., dissenting, joined by Justices Brennan and Marshall) (arguing that "objective" approach of focusing on lawfulness/appropriateness of government conduct is superior to "subjective" approach of focusing on defendant's so-called "innocence").

22 In Mathews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883, 886, 99 L. Ed. 2d 54 (1988), the Court held that a defendant is entitled to have his jury instructed on entrapment whenever there is sufficient evidence from which a jury could find it. The Court noted that the parties "agree as to the basics of the affirmative defense of entrapment" and that the Court "has consistently adhered to the view [of entrapment] first enunciated in Sorrells . . . ." Id. at 62-63, 108 S. Ct. at 886.

23 In Jacobson, the federal government's agents were focused upon child pornography and the then-new Child Protection Act of 1984. 503 U.S. 540, 543, 112 S. Ct. 1535, 1537-38. Like most cases where entrapment is raised as a defense, the conviction in Jacobson arose within the context of a government "sting" operation. Id. at 550, 112 S. Ct. at 1541. The Court noted that inducement was not even at issue in the case, since the government acknowledged that it had induced the defendant to commit the crime. Id. at 549 n.2, 112 S. Ct. at 1540 n.2.

24 Id. at 542, 550, 112 S. Ct. at 1537, 1541 ("Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985." (citing Sorrells and Sherman)). The Jacobson majority concluded that although the defendant's jury had been instructed on the law of entrapment, it could not have rationally concluded that the defendant was predisposed to commit the crime at issue prior to the government's first contact with him. Id. at 553, 112 S. Ct. at 1543.

25 It should be noted that the Jacobson majority and the dissenters did not disagree on the centrality of the predisposition issue, but rather on how this factual question should be decided.

26 Carter originally proposed the theft to Garrett, who got the defendant involved, but who also told the owner of the cattle about the plot. Garrett then participated in and orchestrated the "theft" with the knowledge and permission of the owner. 53 Okl.Cr. at 394-95, 12 P.2d at 552-53.

27 See also Bayouth v. State, 1956 OK CR 26, ¶ 38, 294 P.2d 856, 863-64 (same (quoting Lee)); Finley v. State, 1947 OK CR 67, 84 Okl.Cr. 309, 330, 181 P.2d 849, 860 ("If the decoy suggests or initiates or induces the commission of the crime, or artificially propagates the crime or lures an otherwise innocent person to commit the crime . . . , a conviction cannot be had on such a basis for that is entrapment." (emphasis added)); see also Ryles v. State, 1956 OK CR 115, ¶ 4, 303 P.2d 449, 452 (no entrapment instructions required where "record fails to disclose any evidence on the part of the enforcement officers tending to induce the defendant to commit the crime").

28 This new entrapment jury instruction included the following language:

[I]f you believe from the evidence that the officers, or persons acting under the direction of the officers, or any other persons with a corrupt private purpose to serve, first suggested the commission of the criminal act, or did first lure the accused into the commission of such acts, he being an otherwise innocent person, then and in that event, it will be your duty to hold for the defendant and acquit him.

Beasley

Therefore, if you find the defendant was induced or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing, then in that event, it will be your duty to hold for the defendant and acquit him. . . .

Accordingly, entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act, or purposely places facilities in his way or aids and encourages him in the perpetration thereof . . . .

Id.

Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he/she is entitled to the defense of entrapment, because the law as a matter of policy forbids a conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that a police officer provides what appears to be a favorable opportunity is no defense.

If you should find from the evidence that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit a crime such as that charged in the information whenever opportunity was offered and the police merely offered the opportunity, the defendant is not entitled to the defense of entrapment.

If, on the other hand, you should find that the defendant had no previous intent or purpose to commit any offense of the character here charged, and did so only because he/she was induced or persuaded by some agent of the police, then the government has seduced an innocent person, and the defense of entrapment is a good defense.