James Michael Kirby v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
JAMES MICHAEL KIRBY
v. Record No. 1627-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JULY 25, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
John D. Gray, Judge
James S. Ellenson for appellant.
Thomas D. Bagwell, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
James Michael Kirby (defendant) was convicted by a jury of
conspiring to possess marijuana with intent to distribute in
violation of Code §§ 18.2-256 and 18.2-248.1(a)(3). Defendant
complains on appeal that the trial court erroneously (1) limited
introduction of evidence pertinent to an entrapment, and (2)
declined to instruct the jury on the defense. We disagree and
affirm the conviction.
The parties are fully conversant with the record, and we
recite only those facts necessary to explain our holding. Under
familiar principles of appellate review, the evidence is viewed in
the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
While participating in an inpatient drug treatment program,
defendant became acquainted with Carey McCormick, a police
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
informant. Over a period of several days, McCormick repeatedly
inquired of defendant's interest in purchasing "a large amount of
marijuana" upon his release. Although defendant initially declined
McCormick's overtures, he eventually agreed to the proposal, "[t]o
make some money."
Shortly after defendant's release, McCormick arranged a
meeting between defendant, Hampton Police Officer Charles Butler,
then posing as a narcotics distributor, and himself. Defendant
advised Butler that he "couldn't buy the twenty pounds of
marijuana, . . . could only come up with money for ten pounds, but
. . . wanted the ten pounds." After confirming the price, quality,
weight, and origin of the marijuana, the meeting was adjourned to
afford defendant an opportunity to obtain the necessary funds.
Later that same evening, defendant, Steven Lynn Kirby, defendant's
brother, and Butler met at the same location. The purchase price
was again discussed, and defendant and Steven together agreed to
purchase six pounds of marijuana from Butler.
At a pretrial suppression hearing, defendant argued that the
contemplated drug transaction had resulted from police entrapment,
which required suppression of all related evidence. Substantial
evidence relevant to the issue was developed at the hearing and
argued by counsel, after which the trial court denied the motion.
Immediately prior to trial, the court reminded counsel that
evidence and argument relative to entrapment had been fully
considered at the earlier hearing and precluded defendant from
again pursuing the defense.
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"The admissibility of evidence is within the broad discretion
of the trial court, and a ruling will not be disturbed on appeal in
the absence of an abuse of discretion." Blain v. Commonwealth, 7
Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) (citing Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)). "An
appellant must demonstrate that the excluded evidence is relevant
and material and that the party was entitled to have it introduced
in order to establish on appeal that the trial court erred by
excluding it." Toro v. City of Norfolk, 14 Va. App. 244, 254, 416
S.E.2d 29, 35 (1992) (citation omitted).
"The principles governing our review of a trial court's
decision refusing a jury instruction are well-settled." Brandau v.
Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563, 564 (1993). If
credible evidence in the record supports the defendant's theory of
defense, the trial judge may not refuse to grant a proper,
proffered instruction. Delacruz v. Commonwealth, 11 Va. App. 335,
338, 398 S.E.2d 103, 105 (1990). "'[A]n instruction, however, must
be supported by more than a mere scintilla of evidence.'" Brandau,
16 Va. App. at 411, 430 S.E.2d at 564 (quoting Boone v.
Commonwealth, 14 Va. App 130, 132, 415 S.E.2d 250, 251 (1992)).
"'Entrapment is the conception and planning of an offense by
an officer, and his procurement of its commission by one who would
not have perpetrated it except for the trickery, persuasion, or
fraud of the officer.'" McCoy v. Commonwealth, 9 Va. App. 227,
231, 385 S.E.2d 628, 630 (1989) (quoting Stamper v. Commonwealth,
228 Va. 707, 715, 324 S.E.2d 682, 687 (1985)). "If the criminal
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design originated in the mind of the defendant and the police did
no more than 'afford an opportunity for the commission of a crime'
by a willing participant, then no entrapment occurred." McCoy, 9
Va. App. at 231, 385 S.E.2d at 630 (citation omitted). Police may
"'use . . . decoys, undercover agents and informers to invite the
exposure of willing criminals and to present an opportunity to one
willing to commit a crime.'" Id. at 232, 385 S.E.2d at 630
(citations omitted). "Reluctance to engage in crime is not
transformed into entrapment whenever a person hesitantly, but
willingly, acquiesces in the request of a close ally to commit a
crime." Id.
Here, the record provides ample support for the trial court's
limitation of defendant's evidence. McCormick and Butler merely
"'present[ed] an opportunity to one willing to commit a crime.'"
Id. (citations omitted). Defendant's evidence at the suppression
hearing did not establish that he was coerced, tricked, or
improperly persuaded into criminal activity by the police, acting
through McCormick or otherwise. Under such circumstances, evidence
of an entrapment defense, accompanied by an attendant instruction,
would have only confused the jury and diverted its attention from
those matters properly in issue and supported by the record. See
Powell v. Commonwealth, 13 Va. App. 17, 24, 409 S.E.2d 622, 627
(1991). Accordingly, the court correctly excluded the disputed
evidence and instruction from the trial proceedings, and the
conviction is affirmed.
Affirmed.
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