State v. Latham

910 S.W.2d 892, 1995 Tenn. Crim. App. LEXIS 247
CourtCourt of Criminal Appeals of Tennessee
DecidedMarch 22, 1995
StatusPublished
Cited by11 cases

This text of 910 S.W.2d 892 (State v. Latham) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Latham, 910 S.W.2d 892, 1995 Tenn. Crim. App. LEXIS 247 (Tenn. Ct. App. 1995).

Opinion

OPINION

HAYES, Judge.

The appellant, Jeffrey Lee Latham, appeals from a conviction for solicitation to commit first degree murder entered in the Criminal Court for Knox County. The appellant presents one issue for our review. The appellant contends that the trial court erred in failing to instruct the jury that entrapment is a defense to the crime of solicitation to commit first degree murder.

After reviewing the record, we reverse the trial court’s decision and remand for a new trial.

7.Factual Background

On November 12, 1991, the Knox County Grand Jury indicted the appellant for solicitation to commit first-degree murder. The appellant filed notice of his intent to rely on the defense of entrapment. The trial court, however, refused to instruct the jury on the entrapment defense. This trial ended in a mistrial because the jury was unable to reach a unanimous verdict.

After the case was set for retrial, the appellant again gave notice of his intent to rely upon the defense of entrapment. During a pre-trial motion, the trial court denied the appellant’s motion to instruct the jury on entrapment based upon its ruling that entrapment is not a defense to the crime of solicitation.

At the second trial, the proof revealed that the defendant solicited Bernard Waggoner, a federal agent with the Bureau of Alcohol, Tobacco, and Firearms, to kill Frank Cooper, his estranged wife’s lover. During the defense’s ease-in-chief, the appellant recounted the events which led to his meeting with the federal agent. The appellant testified that Cooper began having an affair with his wife several months prior to the appellant’s arrest for this offense in July, 1991. After discovery of the affair, the appellant began having mental health problems which resulted in a one week stay in Lakeside Mental Health Institute. Upon his release from Lakeside, the appellant discovered that his wife and children had moved into Cooper’s trailer. The appellant found his own trailer padlocked and his furniture sold. The appellant testified that Cooper made threats to kill him. As a result of those threats, and upon being ousted from the parties’ trailer, the appellant moved into the home of his parents.

The appellant testified that he never actually intended for Agent Waggoner to kill Frank Cooper.1 Instead, the appellant claimed that he had been induced into approaching Waggoner by an acquaintance, Kenny Fann. Unknown to the appellant at that time, Fann was working as a govern[894]*894ment informant.2 According to the appellant, Fann initially contacted him and stated that he had heard about his problems with Frank Cooper. Fann then suggested that he “do something” about Cooper. The appellant testified that, at first, he rejected Fann’s proposal, but Fann became insistent. Several days later, Fann allegedly told the appellant that he had already contacted the “hit man,” and that because this person knew where they lived, the appellant and Fann would be in grave danger if the appellant failed to contact him about killing Cooper. The appellant testified that he only met with Agent Waggoner because of these threats.

Susan Latham, the appellant’s mother, gave testimony corroborating the appellant’s version of events. She stated that Kenny Fann called the appellant on several occasions. At first, the appellant rejected Fann’s attempts to arrange a meeting with Agent Waggoner. She further, testified that her son only agreed after Fann’s persistent prodding led him to believe that Frank Cooper had been mistreating the appellant’s children.

Agent Waggoner testified that, posing as a professional “hit man,” he was introduced to the appellant by Kenny Fann on July 17, 1991. On that date, Waggoner and the appellant discussed the murder for hire of Frank Cooper. The appellant agreed to pay Waggoner a total of $500 to kill Frank Cooper. The appellant was to pay an initial installment of $250 to Waggoner at a local supermarket the next day. On the following day, the appellant arrived at the scheduled location, and, upon payment of the $250, was arrested and charged with solicitation to commit murder. To corroborate Agent Wag-goner’s testimony, the State played a tape recording of the conversation that took place between Waggoner and the appellant on July 17, 1991. Relevant portions of the tape recording include:

MR. WAGGONER: “He said that you needed something?”
MR. LATHAM: “Yeah, I want a guy killed.”
MR. WAGGONER: “Why?”
MR. LATHAM: “Fucking around with my wife; threatening to kill me over my wife. He won’t even .let me see my kids; padlocked my home.” ...
MR. WAGGONER: “What do you want done about it?”
MR. LATHAM: “I don’t want to hear him dead; I want to see him dead.”
MR. WAGGONER: “Do you want to be there? Do you want something to do it with or do you want me to do it?”
MR. LATHAM: “I’d rather have somebody do it. I wanted to see what you charge — what they charge first.”
MR. WAGGONER: “Who is it?”
MR. LATHAM: “Frank Cooper ...”

In rebuttal, the State called Fann, who testified that at no time had he made any threats against the appellant or forced him to do anything. Fann further testified that it was the appellant’s idea to kill Cooper, not his.

Gregg Bowden, an agent with the Bureau of Alcohol, Tobacco, and Firearms, also testified for the State as a rebuttal witness. This witness testified that he heard the appellant state after his arrest: “I should have killed the son-of-a-biteh myself_ I knew better than to go this way. I should have done it myself. This wouldn’t have happened.”

[895]*895The jury found the appellant guilty of solicitation to commit first-degree murder. The trial court then sentenced the appellant to ten years as a Range I standard offender. The appellant now challenges the court’s failure to give the requested entrapment instruction.

II. The Applicability of the Entrapment Defense

Prior to 1980, Tennessee courts did not explicitly recognize entrapment as a defense, although its application was occasionally validated on an ad hoc basis. See State v. Jones, 598 S.W.2d 209, 216 (Tenn.1980). In 1980, the Tennessee Supreme Court expressly recognized entrapment as a valid defense against criminal liability. Id. The court defined entrapment as follows:

[A]s a general rule of criminal practice and procedure entrapment occurs when law enforcement officials, acting either directly or through an agent, induce or persuade an otherwise unwilling person to commit an unlawful act; however, where a person is predisposed to commit an offense, the fact that the law enforcement officials or their agents merely afford an opportunity does not constitute entrapment.

Id. at 220 (citations omitted). However, the court in Jones further held that entrapment is not a defense to the crime of solicitation: “[0]ne may not be solicited into soliciting. He is either the solicitor or the solicitee.” Id. at 221. After Jones,

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Cite This Page — Counsel Stack

Bluebook (online)
910 S.W.2d 892, 1995 Tenn. Crim. App. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-latham-tenncrimapp-1995.