Burnette v. State

497 So. 2d 838, 1986 Ala. Crim. App. LEXIS 6960
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 14, 1986
Docket4 Div. 668
StatusPublished
Cited by1 cases

This text of 497 So. 2d 838 (Burnette v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnette v. State, 497 So. 2d 838, 1986 Ala. Crim. App. LEXIS 6960 (Ala. Ct. App. 1986).

Opinions

TYSON, Judge.

Terry Cornelius Burnette was indicted for the unlawful sale of marijuana in violation of § 20-2-70, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” He was sentenced to six years’ imprisonment.

The facts of this case as presented by the State can be briefly summarized.

On the evening of May 22, 1984, Dennis Hobbs, a narcotics investigator with the Coffee County Sheriff’s Department was working undercover with the Covington County Sheriff’s Department. On that night, Hobbs and an informant named “Frankie” went to an apartment in the Timmerman Building in Andalusia, Alabama. At that time, Hobbs was wired with a transmitter. At the apartment, Hobbs and Frankie had a conversation with this appellant.1 Thereafter, the appellant, Hobbs and Frankie left the Timmerman Building and drove to the Blue Chateau where the appellant sold Hobbs a bag of marijuana.

I

The appellant’s contention on appeal concerns the defense of entrapment.

“Entrapment occurs when state officers or persons under their control incite, induce, lure, or instigate a person into committing a criminal offense; which that person would not have otherwise committed and had no intention of committing. Johnson v. State, 291 Ala. 639, 285 So.2d 723 (1973). Where the defense of entrapment is raised, two separate issues of fact are presented: First, whether there was governmental inducement, and, second, if there was inducement whether the defendant was ready and willing to commit the act without persuasion. United States v. Jones, 473 F.2d 293 (5th Cir.1973), cert. denied, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961 (1973); Lindsay v. State, 41 Ala.App. 85, 90, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 392 (1961).
“The defense of entrapment is not applicable where the law enforcement officer merely affords an opportunity to one intending to violate the law. Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, cert. quashed, 295 Ala. 412, 323 So.2d 116 (1975). ‘It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.’ United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973). The primary focus is on the predisposition of the accused rather than on the agent’s actions. Russell, supra.
“The cases considering the defense of entrapment in prosecutions for offering or paying bribes support the conclusion that the defense cannot be successfully interposed when the accused initiates the transaction by offering or suggesting payment of a bribe, and law enforcement officers, public officials, or others to [840]*840whose conduct the doctrine applies, thereafter pretend to cooperate by furnishing or otherwise aiding the completion of the offense for the purpose of prosecuting the accused or obtaining necessary evidence.
“(T)he defense is established where government officials, or persons acting under their direction, for the purpose of arresting and prosecuting the accused, first request, demand, or suggest payment of a bribe from an otherwise innocent person who apparently did not previously have the intention or design to commit the offense, and the accused, either because of fears of official retaliation or the persuasion and representation of the agents, was lured or induced into committing the offense. Annotation: 69 A.L.R.2d 1396, 1400, 1401 (I960).”

Tyson v. State, 361 So.2d 1182, 1185-86 (Ala.Crim.App.1978).

“ ‘A defendant who seeks to raise a defense of entrapment must first come forward with evidence sufficient to raise a jury issue ‘that the government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.’ United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1975). A defendant will be considered to have met this burden if he produces ‘any evidence’ that governmental conduct created such a risk, Pierce v. United States, 414 F.2d 163 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969), but evidence that the government agent sought out or initiated contact with the defendant, or was the first to propose the illicit transaction, has been held to be insufficient to meet the defendant’s burden. United States v. Humphrey, 670 F.2d 153 (11th Cir.1982); United States v. Hill, 626 F.2d 1301 (5th Cir.1980). The defendant must demonstrate not merely inducement or suggestion on the part of the government but ‘an element of persuasion or mild coercion.’ United States v. Hill, supra. The defendant may make such a showing by demonstrating that he had not favorably received the government plan, and the government had had to ‘push it’ on him, United States v. Hammond, 598 F.2d 1008 (5th Cir.1979), or that several attempts at setting up an illicit deal had failed and on at least one occasion he had directly refused to participate. United States v. Timberlake, 559 F.2d 1375 (5th Cir.1977). When the defendant makes such a showing, the burden shifts to the government to demonstrate beyond a reasonable doubt that the defendant was predisposed to commit the offense charged. United States v. Dickens, supra.
“Appellate review of a jury decision on entrapment is directed to whether the evidence was sufficient to enable a reasonably-minded jury to reach the conclusion that the defendant was predisposed to take part in the illicit transaction. United States v. Dickens, supra.”2

United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.1985). See also, Williams v. State, 409 So.2d 949 (Ala.Crim.App.1981).

Although the appellant did not testify at trial, he met his burden of proof on the issue of entrapment by the testimony of one defense witness and defense counsel’s cross-examination of the State’s witnesses. The following is a cross-examination of witness Hobbs.

“BY MR. TAYLOR:

“Q. How much did you say you paid for the marijuana, Mr. Hobbs?

“A. I gave him a twenty dollar bill.

“Q. Is that what you paid for the marijuana, twenty dollars?

“A. That’s what I gave him.

“Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Davis v. State
570 So. 2d 791 (Court of Criminal Appeals of Alabama, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
497 So. 2d 838, 1986 Ala. Crim. App. LEXIS 6960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnette-v-state-alacrimapp-1986.