Robert Alonza Harrell v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
ROBERT ALONZA HARRELL
MEMORANDUM OPINION * BY
v. Record No. 2821-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
Richard L. Buyrn for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Robert Alonza Harrell (appellant) was convicted in a jury
trial of attempting to possess cocaine. On appeal he contends the
trial court erred by failing to give the jury an entrapment
defense instruction. We disagree and affirm his conviction.
I.
On appeal, we must view the evidence "in the light most
favorable to the theory of entrapment" to determine if the
evidence could have supported a finding of entrapment. Neighbors
v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208 (1973);
accord Lynn v. Commonwealth, 27 Va. App. 336, 344, 499 S.E.2d 1,
4-5 (1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Viewed in the light most favorable to appellant, on the night
of March 22, 1996, appellant and a friend drove to the MacDonald
Manor area of Chesapeake to find appellant's son. He testified
that he was not looking for drugs that evening. At approximately
10:40 p.m. appellant parked his car, got out and yelled at two men
on the street corner, a known drug area, whether they had seen his
son Tion. The men on the street corner were undercover police
officers conducting a reverse sting operation. The undercover
officers responded that Tion was not around, and appellant began
toward a friend's house. As he was walking away from the corner,
one of the undercover officers, Detective Hammond (Hammond),
called out to him and initiated a conversation. Hammond was
dressed in the manner of a drug dealer and spoke to appellant as
if he was a drug dealer. Appellant did not "think he was a police
officer." As Hammond approached, he showed appellant what
appeared to be drugs. Appellant gave Detective Hammond twenty
dollars and received the drugs in return. Appellant admits that
he purchased the drugs claiming "I was weak at that time" and "was
just being vulnerable."
Appellant argues that the undercover officers tricked him
into believing that they were drug dealers selling "crack
cocaine." 1 He was not the instigator of the transaction and but
1
The "crack cocaine" was actually macadamia nuts coated
with flour.
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for the police actions, he would not have bought the "crack
cocaine."
Appellant was arrested later that evening and charged with
attempting to possess crack cocaine. At trial, appellant
requested an instruction on entrapment.2 The trial court refused,
stating there was no evidence that the officers originated the
criminal intent in the mind of the defendant. They merely
presented an opportunity which appellant took.
2
Appellant's proposed jury instruction read:
Entrapment is the origination and
planning of an offense by an officer of the
law and his procurement of its commission by
one who would not have committed it except
for the trickery, persuasion or fraud of the
officer. Where a person intends to and does
commit the crime, the fact that officers of
the law provided a favorable opportunity
for, aided or encouraged the commission of
the offense is not entrapment. If you
believe:
(1) That the defendant had no previous
intent or purpose to commit the crime;
and
(2) That an officer of the law,
directly or through his agents,
originated in the mind of the defendant
the idea to commit the crime; and
(3) That an officer of the law,
directly or through his agents, caused
the defendant to commit the crime by
trickery, persuasion or fraud.
Then you shall find the defendant not guilty
even though you may believe from the
evidence that he consented to the commission
of the crime.
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II.
The sole issue on appeal is whether the trial court erred
in refusing to grant appellant's request for an entrapment jury
instruction. "'[T]he trial court should instruct the jury only
on those theories of the case which find support in the
evidence.'" Woolridge v. Commonwealth, 29 Va. App. 339, 348,
512 S.E.2d 153, 157 (1999) (quoting Morse v. Commonwealth, 17
Va. App. 627, 632-33, 440 S.E.2d 145, 149 (1994)). Even though
an instruction correctly states the law, it should not be given
"'if it is not applicable to the facts and the circumstances of
the case.'" Id. (quoting Hatcher v. Commonwealth, 218 Va. 811,
813-14, 241 S.E.2d 756, 758 (1978)). Unless sufficient evidence
exists to support giving the instruction, it is error to give
the instruction even if the instruction correctly states the
law. See Howard v. Commonwealth, 17 Va. App. 288, 293, 437
S.E.2d 420, 424 (1993). The instruction "must be supported by
more than a scintilla of evidence" which "is a matter to be
resolved on a case-by-case basis." Woolridge, 29 Va. App. at
348, 512 S.E.2d at 157 (citations omitted).
"In a jury trial, it is a trial court's function to
determine whether there is sufficient evidence to submit the
issue of entrapment to the jury." Schneider v. Commonwealth,
230 Va. 379, 382, 337 S.E.2d 735, 736 (1985).
"Entrapment is the conception and planning
of an offense by an officer, and his
procurement of its commission by one who
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would not have perpetrated it except for the
trickery, persuasion, or fraud of the
officer." Entrapment occurs when the
defendant's criminal conduct was the product
of "'creative activity' [by the police] that
implants in the mind of an otherwise
innocent person the disposition to commit an
offense and induce its commission in order
to prosecute." If the criminal 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 v. Commonwealth, 9 Va. App. 227, 231, 385 S.E.2d 628, 630
(1989) (citations omitted).
"There is nothing improper in the use, by the police, of
decoys, undercover agents, and informers to invite the exposure
of willing criminals and to present an opportunity to one
willing to commit a crime." Stamper v. Commonwealth, 228 Va.
707, 715, 324 S.E.2d 682, 687 (1985). A conviction will not be
barred on grounds of entrapment because the police merely afford
an opportunity to commit a crime to one already willing to
commit it. See Schneider, 230 Va. at 382, 337 S.E.2d at 736.
Furthermore, the fact that the undercover agents initiated
the conversation regarding drugs does not entitle the appellant
to a jury instruction on entrapment. See Panell v.
Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989).
"Encouragement or solicitation of the commission of a crime by
one who is willing and predisposed to commit the crime does not
constitute entrapment." McCoy, 9 Va. App. at 232, 385 S.E.2d at
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630. A person's willing acquiescence to engage in crime does
not constitute entrapment because he hesitated before committing
the crime. See id. at 232, 385 S.E.2d at 630.
When viewed in the light most favorable to appellant, the
evidence established that two undercover officers, who appeared
to be drug dealers, initiated a conversation concerning the sale
of drugs. One of the undercover officers showed appellant what
appellant believed was "crack cocaine." Upon being presented
with an opportunity to buy what appeared to be "crack cocaine,"
appellant, without hesitation, purchased the drugs for twenty
dollars.
Appellant's argument that he bought the drugs only because
he was tricked into believing the undercover officers were drug
dealers selling drugs is insufficient to establish the requisite
basis for an instruction on entrapment. Once appellant's
attention was drawn to the possibility of purchasing drugs, he
readily accepted it. There was no evidence that Detective
Hammond coerced, cajoled, threatened or otherwise persuaded
appellant to buy the drugs. Accordingly, we hold that the trial
court did not err when it refused to instruct the jury on
entrapment and affirm the trial court's decision.
Affirmed.
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Benton, J., dissenting.
"Although the Commonwealth prevailed at trial, the
appropriate standard of review requires that we view the
evidence with respect to the refused instruction in the light
most favorable to [Harrell]." Boone v. Commonwealth, 14 Va.
App. 130, 131, 415 S.E.2d 250, 251 (1992). Thus, we must view
the evidence in the light most favorable to the theory of
entrapment. The law is well established that "'[e]ntrapment is
the conception and planning of an offense by an officer, and
[the officer's] procurement of its commission by one who would
not have perpetrated it except for the trickery, persuasion, or
fraud of the officer.'" Falden v. Commonwealth, 167 Va. 549,
555-56, 189 S.E. 329, 332 (1937) (quoting Sorrells v. United
States, 287 U.S. 435, 454 (1932) (Roberts, J., concurring)).
"Entrapment occurs when the defendant's criminal conduct was the
product of '"creative activity" [by the police] that implants in
the mind of an otherwise innocent person the disposition to
commit an offense and induce its commission in order to
prosecute.'" McCoy v. Commonwealth, 9 Va. App. 227, 231, 385
S.E.2d 628, 630 (1989) (citation omitted).
"It is a general rule that where the criminal intent
originates in the mind of the entrapping person and the accused
is lured into the commission of a crime which [the accused] had
otherwise no intention of committing in order to prosecute [the
accused] therefor, no conviction may be had, though the
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committing of the act is not affected by any question of
consent." Ossen v. Commonwealth, 187 Va. 902, 911, 48 S.E.2d
204, 208 (1948). "If there be conflict in the evidence as to
whether the criminal intent originated in the mind of the
accused or was induced or incited by the officer, then the
solution of the question should be submitted to the jury."
Falden, 167 Va. at 556, 189 S.E. at 332. In this case, as in
Schneider v. Commonwealth, 230 Va. 379, 383, 337 S.E.2d 735, 737
(1985), "the evidence, when viewed in the light most favorable
to the theory of entrapment, was sufficient to create an issue
thereon for the fact finder."
The evidence proved the police officers were standing on a
street playing the role of drug dealers and dressed so as to
pass for drug dealers. They talked the language of people
trying to sell drugs. When Donnell Hassell and Harrell left
Harrell's car to walk to a friend's house, two men, later
identified as police officers in plain clothes, called them to
"come here for a second." As Harrell approached them, one of
the officers "had his hand [open] like this trying to show him
something."
Harrell testified that the officer in plain clothes called
to him, "Hold up a minute," and "presented himself as a drug
dealer." The officer "showed [Harrell] what [Harrell] thought
was drugs" and instigated the conversation about drugs. Harrell
testified that the officer "came up to [him] and was talking
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. . . and he was saying, Look. What's up. I got this." He
testified that the officer "convinced [him] to buy it."
This evidence was sufficient for the jury to conclude that
the officers actively initiated and instigated the sale of the
cocaine by orally soliciting Harrell to come to them and
convincing Harrell to buy the substance. Despite Harrell's
testimony that he "had a drug problem at one time" and "was a
little vulnerable," the jury could have reasonably inferred that
when the officer lured Harrell to purchase the cocaine the
officers were actively soliciting buyers.
Whatever may be the demerits of the
defendant or his previous infractions of law
these will not justify the instigation and
creation of a new crime, as a means to reach
him and punish him for his past
misdemeanors. He has committed the crime in
question, but, by supposition, only because
of instigation and inducement by a
government officer. To say that such
conduct by an official of government is
condoned and rendered innocuous by the fact
that the defendant had a bad reputation or
had previously transgressed is wholly to
disregard the reason for refusing the
processes of the court to consummate an
abhorrent transaction. It is to discard the
basis of the doctrine and . . . , in effect,
pivots conviction in such cases, not on the
commission of the crime charged, but on the
prior reputation or some former act or acts
of the defendant not mentioned in the
indictment.
The applicable principle is that courts
must be closed to the trial of a crime
instigated by the government's own agents.
No other issue, no comparison of equities as
between the guilty official and the guilty
defendant, has any place in the enforcement
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of this overruling principle of public
policy.
Sorrells, 287 U.S. at 458-59 (Roberts, J., concurring).
This record contains evidence that the police did more than
merely provide the opportunity to commit a crime, cf. Schneider,
230 Va. at 381-82, 337 S.E.2d at 736, and did more than initiate
a conversation about the sale of drugs, cf. Pannell v.
Commonwealth, 9 Va. App. 170, 173, 384 S.E.2d 344, 346 (1989).
In this case, Harrell testified that when he arrived at the
scene of the transaction, he "was not looking for drugs. [He]
was looking for [his] son." Thus, he produced evidence that,
despite any past involvement with drugs, at the time in
question, he was not at all predisposed to purchase drugs.
Harrell did not acquire the desire to purchase drugs until the
police "convinced" him to buy the fake drugs. This creative
activity implanted the disposition in Harrell to commit the
offense. See McCoy, 9 Va. App. at 231, 385 S.E.2d at 630. But
for this intervention, Harrell, according to his testimony,
never would have purchased crack cocaine on the date in
question. Whether this testimony is believable is an issue that
must be left to the jury. See Falden, 167 Va. at 556, 189 S.E.
at 332.
The evidence of persuasion by the officers is significant.
"In the numerous cases . . . which deal with entrapment the line
of cleavage seems to be whether the inducement or incitement on
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the part of the officer has been active or passive." Id. Based
upon ample evidence of persuasion and inducement by the officer,
Harrell was entitled to have the jury decide whether he was
induced and encouraged by the officer and whether, absent that
inducement and encouragement, he would have otherwise purchased
the cocaine. See Ossen, 187 Va. at 911, 48 S.E.2d at 208. This
evidence was sufficient to create a question of fact which the
jury should have been allowed to resolve after being properly
instructed on the law of entrapment.
For these reasons, I would reverse the conviction and
remand for a new trial. I dissent.
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