Adcock v. State

MOYLAN, Judge. The appellant, Donna A. Adcock, was convicted by an Anne Arundel County jury, presided over by Judge H. Chester Goudy, Jr., of 1) distribution of cocaine and 2) possession of cocaine with intent to distribute. Upon this appeal, she raises two ostensible contentions which reduce themselves to nothing more than facets of a single contention. The ostensible contentions are: 1) That Judge Goudy erroneously failed to grant the appellant’s requested instruction on the subject of entrapment; and 2) That Judge Goudy erroneously instructed the jury that entrapment, as a matter of law, simply did not exist in this case.

If Judge Goudy had been wrong in failing to give the requested instruction, that omission would be reversible error even without the subsequential error of commission. If, on the other hand, Judge Goudy correctly declined to instruct on entrapment, it follows ineluctably that his instruction that there was no entrapment in the case (necessary because the advocates were strenuously arguing the issue) was absolutely correct. The only issue before us is that of whether there had been generated a prima facie case of entrapment so as to create a genuine jury issue in that regard. Entrapment is a phenomenon with respect to which “It Takes Two to Tango.” There needs to be both the active and the passive voice at work.

It is not enough that the policeman induce; it is also required that the defendant, in fact, be induced. With respect to the criminal conduct ostensibly induced, it is not enough that there be an improper solicitation; it is further required that there be a consummation in response to that solicitation. ⁴⁵⁶ W. LaFave and A. Scott, Criminal Law (1972) defines entrapment, at 371: “[F]or entrapment to be established, (1) the government must, for the purpose of obtaining evidence, originate the crime and induce the defendant to commit it; and (2) the defendant must be an ‘innocent’ person who would not have committed a crime of this sort had he not been thus induced." (Emphasis supplied). C. Whitebread, Criminal Procedure (1980) similarly defines entrapment, at 564: “The defense of entrapment arises when a defendant, who has admittedly committed a crime, can prove that the actions of law enforcement authorities caused him to commit the crime.” (Emphasis supplied). It is necessary that there be generated a legally sufficient (prima facie) case, with the burden of production squarely allocated to the proponent of the defense, as to both 1) improper inducing behavior on the part of the government and 2) the actual succumbing to that inducement on the part of the defendant.

We have no difficulty in holding in the case at bar that there was an utter failure of the appellant to make out a prima facie case of entrapment. Without for a moment suggesting that there was anything improper in the police behavior in this case, it is unnecessary to examine it, for it is immaterial. It is not necessary to assess the lures, proper or improper, that may have been dangled, or may not have been dangled, by the undercover policeman, for the only evidence is that the appellant did not rise to the bait. The crime for which the appellant was convicted occurred on the night of August 21, 1984, on the parking lot of the Margate Apartments in Anne Arundel County.

A drug transaction there took place involving the sale of one ounce of cocaine for $2,000. The appellant, as the intermediary between the seller Jacqueline Lawler and the purchaser David Powell, a police