Sparks v. State

MOYLAN, Judge. The entrapment defense is as modern as Abscam. 1 It is as ancient as the Book of Genesis: “The serpent beguiled me and I did eat.” 2 On the merits, it seldom enjoys any more success today than it did in the Garden of Eden. 3 As a generative source of appellate litigation, however, it has been perennially luxuriant. Although pioneered in the state courts, 4 it first achieved high-profile recognition in 1932 with the Supreme Court decision of Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed.2d 413 . Sorrells and progeny, notwithstanding non-constitutional status, have come to be, over half a century, the primary persuasive benchmark for a defense now recognized in all fifty states. 5 Almost all of the Supreme Court effort, however, has thus far been lavished upon the single — and key — substantive issue of what is the essential nature of the defense.

Sorrells, supra; Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958); Masciale v. United ³⁹ States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); United States v. Russell, 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 (1976). The long-running substantive debate has been one between 1) a focus on the “Predisposition” of the defendant— the so-called subjective test — and 2) a focus on the “Conduct of the Authorities” — the so-called objective test. The former, espoused by the Supreme Court majorities in Sorrells, Sherman, Russell and Hampton , looks, on a case-by-case basis, not only at the manner and nature of the inducement dangled by government before a target but also (and predominantly) at the moral and social character of the target who is thus induced. It draws a critical distinction, in the words of Chief Justice Warren in Sherman , between “the trap for the unwary innocent and the trap for the unwary criminal.” 6 The concern is not “to see who held out the bait, but who took it.” 7 The trap itself is neither good nor bad.

The critical question is whether the person caught in the trap is good or bad. 8 A significant majority of the states have followed the lead of the Supreme Court and adopted this subjective test for entrapment. 9 In 1969, this Court opted for that approach in Simmons v. State, 8 Md.App. 355, 360-364 , 259 A.2d 814 (1969). 10 The Court of Appeals placed its imprimatur on ⁴⁰ that decision in Grohman v. State, 258 Md. 552, 556-560 , 267 A.2d 193 (1970). 11 The “road not taken” — the objective test for entrapment — is that espoused by Justice Roberts’ concurrence in Sorrells, 12 Justice Frankfurter’s concurrence in Sherman , 13 Justice Stewart’s dissent in Russell , 14 and Justice Brennan’s dissent in Hampton . 15 It looks to the propriety of the governmental conduct per se and would apply the entrapment defense essentially as a prophylactic device to monitor investigative behavior and to “police the police.” Its concern is not with whether the defendant, before he took the bait, was good or bad but with whether the investigative ⁴¹ offer of the bait was itself good or bad. 16 As with any utilization of a prophylactic sanction, it calls for entrapment decisions to be made, as a matter of course, by the judge and not by a jury. Some few states, legislatively or judicially, have followed this alternative approach to entrapment. 17 At the Supreme Court level, that substantive debate is now concluded and is of no more than historical interest. As Justice Brennan acknowledged, concurring in Mathews v. United States, 485 U.S. 58, 67 , 108 S.Ct. 883 , 99 L.Ed.2d 54, 63 (1988): “Were I still judging on a clean slate, I would still be inclined to adopt the view that the entrapment defense should focus exclusively on the Government’s conduct. But I am not writing on a clean slate; the Court has spoken definitively on this point.

Therefore I bow to stare decisis.” Because of its long preoccupation with the fundamental substantive nature of the defense, however, the Supreme Court has had almost nothing to say about its procedural incidents. Maryland, simply because of the random nature of almost all of the appellate contentions that have thus far been raised, has also had little occasion to examine the procedural nuances. The present appeal, however, requires ⁴² us to stop and to look closely at one such procedural question or, more precisely, at a cluster of closely-related procedural questions: What is required to establish a legally sufficient, prima facie case of entrapment so as to generate a genuine jury issue with respect to it and to warrant a jury instruction on the subject? To whom is allocated the burden of production with respect to such a prima facie case?

Who decides whether a prima facie case has been made — judge or jury? What are the necessary elements of such a prima facie case? The Present Case The appellant, Mark Edward Sparks, was convicted by a Caroline County jury, presided over by Judge J. Owen Wise, of distributing marijuana. Upon this appeal, he raises the following three contentions: 1) That he was erroneously denied a jury instruction on the defense of entrapment; 2) That evidence necessary to establish the defense of entrapment was erroneously rejected; and 3) That an erroneous jury instruction a) amended and thereby broadened the charges against him, b) deprived him of his constitutional right to notice, and c) violated his right against double jeopardy.

The appellant was charged in two counts. The lesser charged simple possession of marijuana. The greater charged distribution. Deputy Sheriff Robert Lee Bradley, an undercover narcotics officer, had been targeting one Wanda Hutson for some time.

Ms. Hutson, apparently caught up in the snares of the law, agreed to extricate herself by entering into a working relationship with the police. She operated both as an informant and as an undercover agent for them. Based upon her knowledge of the local traffic, she supplied Deputy Bradley with a list of possible suppliers of narcotics. The appellant’s name was on that target list.

Deputy Bradley was familiar with the appellant by virtue of having ⁴³ had him pointed out on several prior occasions by other deputy sheriffs. Why he was pointed out was not stated in the record. The action plan was for Wanda Hutson to serve as a go-between and to arrange controlled buys between the targeted sellers on her list and Deputy Bradley, who would pose as an interested buyer. On February 27, 1990, Wanda Hutson arranged for such a “buy.” The appellant was to come to her home at 210 East Sunset Avenue in Greensboro, Caroline County, at 11 A.M. to sell a quarter of an ounce of marijuana to Deputy Bradley.

Deputy Bradley arrived a few minutes before the appellant did. Deputy Bradley knew that the appellant was the target for that morning’s snare. According to Deputy Bradley’s testimony, the operation proceeded like clockwork. Deputy Bradley was seated on a sofa in the living room.

The appellant entered and, while in the hallway entrance, gave Wanda Hutson a plastic baggie containing greenish-brown vegetable matter that later was found to be marijuana. The appellant and Wanda Hutson went briefly into the kitchen. She then handed the baggie to Deputy Bradley. Someone (he was not certain which of the two) handed Deputy Bradley a scale.

He measured the marijuana and found that it was, atypically, “a little over a quarter ounce.” Commenting favorably that “it was better than a quarter ounce,” he prompted the appellant’s reciprocally gracious response that “he takes care of his people.” Deputy Bradley asked the appellant how much he owed him for the bag. The appellant replied, “Fifty dollars.” Deputy Bradley handed the appellant $50. The appellant took it and left the house. The entire transaction lasted approximately ten minutes.

The Defendant’s Version of the Facts Bearing on Entrapment The appellant gave a different version of the episode and it is, of course, his version that we must accept in determining the threshold question of whether he made out a prima ⁴⁴ facie case of entrapment. His version of why he initially went to Wanda Hutson’s house on February 27 establishes nothing with respect to entrapment, one way or the other. He claimed that he had been a social friend of Wanda for about six months. He received a call from her at approximately 9 o’clock that morning.

She wanted to ask him a couple of questions about her boyfriend, specifically about whether her boyfriend was cheating on her. Accordingly, she asked him over to her home. He got a follow-up call from her at about 11 o’clock and in response to that second call, finally did go over to Wanda’s house. He claimed that there was no discussion about marijuana or about any drugs of any kind, let alone a discussion about a possible sale.

The appellant did admit, however, that he carried a supply of marijuana with him on that visit to Wanda. He maintained that the marijuana was exclusively for his own personal use. This adds an interesting wrinkle, for it limits the entrapment defense to the first count charging distribution and forgoes it as to the second charging possession. We have found no other case where the allegedly improper enticement was not one that allegedly lured its victim from the ranks of the law-abiding into the underworld of criminality in the first instance but only one that allegedly pushed him upward from a lower level of criminality to a higher echelon.

Upon arrival at Wanda’s, the appellant was surprised to find a stranger “sitting there and ... walked through to the kitchen.” He there “talked to Wanda for a few minutes.” It was in that brief conversation in the kitchen that the subject of marijuana first arose and that the entrapment allegedly occurred. By way of a proffer initially but ultimately in the course of cross-examination and redirect examination as well, it came out that Wanda told the appellant “she needed to make this deal with this person ... who she had befriended” and she asked the appellant “if she could have whatever marijuana he had so she could sell it to Deputy Bradley.” Putting to the side for the moment the ⁴⁵ questions of whether Wanda asked once or as many as three times and of whether Wanda was a friend of the appellant’s, this “need to make a deal” was the sum total of the reason given by Wanda as to why she needed to have his marijuana. Turning from the stated reason for the solicitation to the persistence of the solicitation, we note that when the appellant was asked, “Did you have any conversation with her?”, he responded, “Yes, a little bit.” When Wanda initially asked the appellant for his marijuana, he responded in the negative, causing her to ask again: “A: I, uh, told her that I would not sell the marijuana at that time because a ... Q: Was that the end of it, or was there anything further?

A: Well, she asked me a couple of times.” The sequence of events then becomes a little garbled. On direct examination, the appellant indicated that he then, at Wanda’s request, reached into her kitchen drawer, took out the scales, and gave them to her. The request to sell the marijuana was then repeated: “Q: Did you give anything else to her? A: At that time, no, I just gave her the scales.

Q: Alright. What happened then? A: I was asked to sell the pot.” There then came an interlude of “about ten minutes” during which Wanda apparently left the appellant alone in the kitchen while she talked to Deputy Bradley in the living room. Without any further explanation, the appellant gave Wanda Hutson his marijuana: “Q: Did there ever come a time that you gave the marijuana in your possession to anyone?

A: Uh, yes, it was ... I did give it to Ms. Hutson. Q: And that was after how long a period of time? A: About ten minutes ... ten or fifteen minutes.

Q: This was after you had said no to her one time or had you said no on any other occasions? A: I had told her a few times that I would not sell it.” ⁴⁶ Wanda Hutson then delivered the marijuana to Deputy Bradley: “Q: What did she do with the marijuana? A: She took it to Mr. Bradley. Q: I'm sorry?

A: She took it to Officer Bradley. Q: And where were you when that occurred? A: I was in the kitchen. Q: And what did she do with it?

A: She handed it to Officer Bradley. I sat around in the kitchen for a few minutes after she handed it to him and then I left.” On cross-examination, the appellant pinpointed the number of times he declined to deliver his marijuana to Wanda Hutson at three: “Q: How many times did you say to Wanda Hutson that you would not sell marijuana at that time? A: On three different occasions. Q: Three different times?

A: Yes, sir. Q: Were all three times in the kitchen when you first arrived? A: Yes, sir.” He acknowledged, moreover, that it was right after these three requests and before the ten-minute interlude, during which he was left in the kitchen, that he turned over the marijuana: “Q: At what point did you give your marijuana to Ms. Hutson? A: Uh, after she asked me about three times ...

Q: Well ... A: Well, I know. I can’t say she, but, uh, what ... A: ... point, I give it to her right before she went into the [living room] to talk to Mr. Bradley.

Q: So you gave her the marijuana before she came back to talk to Mr. Bradley? In other words, you gave her the ⁴⁷ marijuana during that initial conversation that you had with her in the kitchen? A: I did after I had told her no about three times. Q: Right.

You told her no about three times and then you gave it to her. Is that right? A: Yes, I did. 18 Q: And then she went into the living room? A: Yes, sir.” It was while Wanda Hutson was in the living room, apparently selling the marijuana to Deputy Bradley, that she called to the appellant in the kitchen to bring her the scales (for the obvious purpose of weighing the marijuana): “Q: Okay.

Who did you give the scales to? A: Ms. Hutson. Q: Was she in the kitchen when she got the scales or was she in the living room ... or did you bring them to her in the living room? A: I brought them to her in the living room and went back in the kitchen.

Q: And then went back into the kitchen? A: Yes, sir.” The appellant stated that he received no money from Wanda Hutson (or from anyone) for the marijuana he turned over to her, although he did testify that the marijuana he gave her was worth between $40 and $50. He stated he did this “because we were friends.” The closest the appellant came to pinpointing the energizing reason for having done something he was ordinarily not inclined to do came during cross-examination. It boiled down to the fact that he distributed the marijuana to Wanda Hutson because she had, three times, asked him to do it intertwined with the fact that she was a friend: ⁴⁸ “A: ...

I gave [it] to her so I could go about my business. Q: So that’s the reason that you gave her the marijuana so that you could go about your business? A: So I could leave. Q: You couldn’t leave without giving that stuff to her?

A: I could have, yes. But I was doing it for a friend. You know.” On redirect examination, the motivation for the criminal act of distributing seemed to switch subtly from an act of friendship to an act of mild exasperation: “Q: If she asked you just once for marijuana, would that be fine with you? A: Would it be fine?

No, it wouldn’t be fine with me. Q: What was it that caused you to say no three times and then finally ... ? A: Well, after a while, I got tired of listening to it so I just went ahead and give it to her.” One other pertinent fact bearing on the issue of entrapment was brought out both on direct and on cross-examination. It was that the appellant had been convicted in 1985 of selling marijuana.

The Ruling on the Prima Facie Case Ordinarily, a ruling on whether a defendant has made out a prima facie case of entrapment would be made at the close of the entire case. That ruling would control whether the jury would be permitted to consider the issue of entrapment. It would thereby control whether the judge would be required to instruct the jury on the subject of entrapment— its elements, the appropriate burden or burdens of persuasion as to aspects of entrapment, and the allocation of that burden or those burdens to one party or the other. In this case, however, the State, quite appropriately, requested Judge Wise to rule upon whether the appellant had made out a prima facie case as soon as the defense rested and before the State had finally rested.

If the ⁴⁹ prima facie case had, indeed, not been made out, the State was then prepared to rest its entire case. If a prima facie case had been made out, on the other hand, and the issue were going to the jury, the State then intended to call rebuttal witnesses for the purpose of establishing the appellant’s predisposition to commit narcotics-related offenses, thereby counteracting any possible entrapment defense. The State proffered that, inter alia, it would put on Deputy Bradley to testify that after the criminal incident of February 27,1990, the appellant, still believing that Deputy Bradley was a good and bona fide customer, approached him on two subsequent occasions “offering to sell him more marijuana” and inquiring as to whether he “was satisfied with the marijuana he had purchased from [the appellant] on the 27th.” The State further proffered that this testimony was only one of “the several other pieces of evidence that would be introduced.” The appellant’s 1985 conviction for selling marijuana had already been brought out in evidence but it might, on rebuttal, have been developed more fully and more formally. Once the possibility of entrapment has been established as a genuine jury issue, it is clear that the State acquires far-ranging latitude in offering rebuttal evidence to show the defendant’s criminal predisposition that would not be allowed under any circumstances other than in counteracting the entrapment defense.

As LaFave and Scott, Criminal Law (2d ed. 1986), pointed out at 426: “[0]nce the entrapment defense is raised, certain usual evidentiary rules are discarded, and the defendant will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.’ This means a prosecutor may admit evidence of a prior criminal record, reputation evidence, acts of prior misconduct, and other information generally barred as hearsay or as being more prejudicial than probative.” (footnote omitted). ⁵⁰ That this admissible evidence of criminal predisposition includes subsequent sales of contraband and other subsequent conduct as well as antecedent conduct is clear. In Berlin v. State, 12 Md.App. 48 , 277 A.2d 468 (1971), we ruled that in rebutting the entrapment defense the State was entitled to offer evidence of subsequent sales of controlled drugs. Judge Powers held for this Court, at 12 Md.App. 60 , 277 A.2d 468 : “That such evidence may relate to offenses after as well as before the one on trial was pointed out by Judge Learned Hand in United States v. Smith, 283 F.2d 760 (1960). The evidence then developed from appellant was that on two later occasions he sold amphetamines to Trooper Lawrence, probably 1,000 tablets.

We conclude that the evidence was admissible for the purposes stated.” (emphasis supplied). Judge Chasanow made a thorough and scholarly survey of the same latitude on rebuttal for this Court in Bowser v. State, 50 Md.App. 363 , 439 A.2d 1 (1981). He observed, at 50 Md.App. 372 -373, 439 A.2d 1 : “This Court has held evidence of similar criminal acts committed by a defendant admissible to rebut an entrapment defense, even where a defendant has not been convicted of nor even arrested for the other offenses, and even where the similar crimes occurred subsequent to the offense for which the defendant is being tried____ [Generally where a defendant is charged with the sale of narcotics, it is improper for the State to offer evidence of other unrelated sales. Nevertheless, there is a recognized exception where the defendant claims entrapment.

There the State may offer proof of other unrelated narcotics offenses to establish that the sale charged was the result of the defendant’s predisposition rather than any inducement by the police.” (citations omitted) (emphasis ⁵¹ supplied). 19 See also Cason v. State, 66 Md.App. 757, 775-776 , 505 A.2d 919, 929 (1986). And see United States v. Coady, 809 F.2d 119, 121 (1st Cir.1987). The potential rebuttal, however, never came to pass, for Judge Wise ruled that the appellant had not established a prima facie case of entrapment. The State rested.

The jury received no instruction on the subject of entrapment and entrapment was a non-issue as far as the jury was concerned. Upon this appeal, the appellant's primary contention is that that ruling was incorrect. ⁵² The Procedural Precedents Are Sparse As we turn to the correctness of that ruling, one problem is immediately apparent. Except for the lower federal courts, to whose opinions we shall presently turn, the case law on the procedural incidents of the entrapment defense is exceedingly skimpy. In the course of eight decisions on the subject, the Supreme Court has said nothing about the proper procedures for handling entrapment issues.

Despite multitudinous cases raising, directly or obliquely, the subject of entrapment, Maryland has only a meager handful of cases touching upon the procedural incidents, all of them from this Court. The Supreme Court Law In Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932), the lower federal court had, to be sure, refused to submit the issue of entrapment to the jury, ruling as a matter of law that it had not been established. The Supreme Court overruled the lower federal court and remanded the case so that a jury verdict could be had on the subject. The opinion, however, was not called upon to deal with evidentiary sufficiency, allocations of burdens, or other procedural problems.

The lower federal court, rather, had refused, as a matter of law, to recognize as a valid entrapment defense what the Supreme Court ultimately declared to be legitimate circumstances for asserting such a defense. Beyond that, the bulk of the majority and concurring opinions clashed at length over their different conceptualizations of the essential nature of the entrapment defense— the subjective test versus the objective test. The Supreme Court revisited the subject twenty-six years later in Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958). Chief Justice Warren and Justice Frankfurter, respectively, simply picked up the cudgels earlier wielded by Chief Justice Hughes and Justice Roberts and renewed the battle over the basic conceptualization of the defense, the subjective test again prevailing.

In the lower federal court, the entrapment issue had gone to the ⁵³ jury and the jury had nonetheless convicted the defendant. The Supreme Court, in a very fact-specific and clearly result-oriented decision, overturned the jury verdict and declared that entrapment had been established as a matter of law. Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958), was a brief companion case handed down the same day. The Supreme Court declined to hold that on the facts of the case, entrapment had been established as a matter of law.

It refused to overturn the jury verdict of conviction, which had implicitly discredited the entrapment defense. Entrapment was only a secondary issue in both Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963) and Osborne v. United States, 385 U.S. 323 , 87 S.Ct. 429 , 17 L.Ed.2d 394 (1966). In each case, a convicted defendant made the bald appellate assertion that he was entitled to a reversal of his conviction because the evidence revealed that entrapment, as a matter of law, had been affirmatively present. The Court simply held on both occasions, without any meaningful discussion, that entrapment had not been established as a matter of law.

At present, the most significant Supreme Court treatment of entrapment is its 1973 opinion in United States v. Russell, 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 . After summarizing the development of the defense, it reiterated that “the thrust of the entrapment defense [is the] focus on the intent or predisposition of the defendant to commit the crime.” 411 U.S. at 429 , 93 S.Ct. at 1641 . Although there was adequate evidence of predisposition to support the jury verdict of guilty, the 9th Circuit had reversed the conviction. It added an element to the defense by holding that entrapment was established, as a matter of law, “solely for the reason that an undercover agent supplied an essential chemical for manufacturing the methamphetamine which formed the basis of the Respondent’s conviction.” 411 U.S. at 424 , 93 S.Ct. at 1639 .

The Supreme Court reversed the 9th Circuit and held that such governmental participation in the offense by supplying necessary ingredients did not in ⁵⁴ any way change the law and that the predisposition of the defendant to participate in the criminal activity was still a bar to any successful assertion of the entrapment defense. Four justices in dissent continued to push for the objective test conceptualization of entrapment. In 1976, Hampton v. United States, 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 , failed to produce a majority opinion. Although ostensibly raising an entrapment issue, it was ultimately held that the “case does not qualify as one involving ‘entrapment’ at all.” 425 U.S. at 489 , 96 S.Ct. at 1649 .

Under circumstances where the defendant was clearly possessed of a predisposition to commit the crime for which he was tried, the defense argued that the heavy governmental involvement in the case, arguably supplying narcotics to him at one end of the chain and customers to him at the other end of the chain, entitled him to a ruling that prosecution was constitutionally barred as a violation of due process. Five justices agreed that that was not so. The plurality maintained that a defendant’s predisposition would always defeat a due process claim based upon governmental involvement. Two concurring justices agreed with the decision on the facts before them but hesitated to join the sweeping and absolute statement of the plurality.

Three dissenting justices continued to push for the objective test approach. Mathews v. United States, 485 U.S. 58 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988), dealt with a very limited issue. The federal trial court, affirmed by the 7th Circuit, refused to permit an entrapment defense to go to the jury because the defendant declined to admit having committed the offense as to which he claimed entrapment. The Supreme Court held that as long as there is evidence to generate the defense, it is appropriate for the jury to consider it and there is no bar to a defendant’s assertion of alternative and apparently inconsistent positions.

Thus, except for the limited principle that inconsistent positions are permitted the defendant without dooming his entrapment defense, the Supreme Court has given no guid ⁵⁵ anee at all as to how to handle the many procedural problems inevitably attendant upon that defense. The Maryland Law As we approach the Maryland law on the subject, we can quickly eliminate from consideration four of the 39 opinions of the Court of Appeals and of this Court that have touched upon the defense of entrapment. Those four opinions simply alluded, in passing, to the defense but offered no real illumination either upon its substance or upon the procedures for handling it. In Regle v. State, 9 Md.App. 346 , 264 A.2d 119 (1970), we pointed out that an entrapper cannot constitute a necessary party to a conspiracy because of the lack of a true meeting of the minds. 20 In Tripp v. State, 36 Md.App. 459, 464 , 374 A.2d 384, 388 (1977), in the course of discussing other defenses, we referred to entrapment as an illustrative parallel, essentially pointing out that it is necessary for a defendant to generate a genuine jury issue as to certain defenses before becoming entitled to jury instructions with respect to them. 21 In Reimsnider v. State, 60 Md.App. 589, 600-601 , ⁵⁶ 483 A.2d 1324 (1984), we rejected a challenge to jury instructions because the challenge was not preserved for appellate review.

In Cason v. State, 66 Md.App. 757, 775-776 , 505 A.2d 919 (1986), a case not involving entrapment at all, we, in the course of a general discussion about “other crimes” evidence, reiterated the statement from Berlin v. State, 12 Md.App. 48, 59-60 , 277 A.2d 468 (1971), to the effect that evidence of a defendant's criminal predisposition, otherwise inadmissible, is admissible to rebut the defense of entrapment. Of the cases dealing with entrapment by more than merely allusive reference, the first was Callahan v. State, 163 Md. 298 , 162 A. 856 (1932). 22 It actually anticipated the first Supreme Court decision of Sorrells v. United States by several months. It was, however, very rudimentary. In a one-paragraph discussion, at 163 Md. 302 , 162 A. 856 , the Court rejected the defendant’s contention that entrapment entitled him to the suppression of evidence, pointing out ⁵⁷ that it “is not objectionable for an officer of the law to lay a trap or unite with others to detect an offender.” The holding was that there was not sufficient evidence of entrapment to require the Court of Appeals even to consider the viability of the doctrine.

Despite the fact that entrapment has been an issue calling for decision in the other 34 post-Callahan opinions of the Court of Appeals and of this Court, the procedural field nonetheless remains essentially unplowed. The reason for this neglect is easy to understand. In most cases, entrapment has not been the central issue but has been merely a peripheral “other contention” raised in its simplest form. That is where the appellant claims that entrapment was affirmatively established, as a matter of law, and that the appellant was, therefore, entitled to a directed verdict of not guilty.

The Procedural Postures: To place the various entrapment issues that may arise in some kind of an organizational context, it is important to note that, generally speaking, appellate issues involving entrapment will take one of three procedural postures. These involve the three stages to which proof of entrapment in a given case may have advanced. The question “Has entrapment been established?” will yield one of three answers: A. Yes, as a matter of law; B. Yes or no, as a matter of fact; or C. No, as a matter of law. In procedural posture A, the defendant will be claiming on appeal that the affirmative establishment of entrapment, as a matter of law, entitled him to an acquittal — not at the hands of the jury but at the hands of the judge.

If he was convicted in a court trial, the claim will be that the verdict of the judge was clearly erroneous. If he was convicted in a jury trial, the claim will be that the judge was legally in error in submitting the case to the jury. This is, essentially, where all of the Maryland appellate action has been. ⁵⁸ The only procedural issue that may arise will be that of whether, in a jury trial, the defendant made the appropriate motion for a judgment of acquittal so as to preserve the sufficiency question for appellate review. See Kenney v. State, 62 Md.App. 555 , 490 A.2d 738 (1985).

If the appellate court rules against the defendant on this issue of entrapment as a matter of law (as every Maryland decision thus far has done), the decision will not, except by way of gratuitous dicta, establish whether the proof of entrapment actually ended up at Stage C (no prima fade case; non-entrapment as a matter of law) or at Stage B (a genuine question of fact for the jury). That will not have been the question before the court. The decision will do no more than establish that the proof was at either Stage C or Stage B but had in no event attained Stage A (entrapment, as a matter of law). The frequent overly broad readings of this limited decision and the frequent carelessly broad statements of this limited decision are recurring sources of confusion.

Issues in this procedural posture may arise in court or jury trials. In procedural posture B, the establishment of entrapment will be a genuine issue of fact to be determined by a jury (or by the fact-finding judge in a court trial). It is only, however, in the context of a jury trial that appellate issues in this posture will arise. Here the issues will involve such procedural questions as what is the burden of persuasion— bare preponderance, clear and convincing, beyond a reasonable doubt?

To which party is allocated the burden of persuasion? Is there a single issue with a single allocation of the burden of persuasion or are their multiple issues, possibly with different allocations of the burden as to different issues? It is in this posture as well that the adequacy of jury instructions defining the elements of entrapment may be involved. Also involved may be questions about the type of evidence the State may use to show a defendant’s criminal predisposition.

See Bowser v. State, 50 Md.App. 363, 371-375 , 439 A.2d 1, 5-8 (1981). In this procedural posture, on ⁵⁹ the other hand, no question will ever arise with respect to a burden of production. That is a non-issue here. The only questions will involve the burden or burdens of persuasion, the correctness and adequacy of jury instructions, and the admissibility of evidence.

Issues in this procedural posture will, by their very nature, arise only in jury trials. In procedural posture C, the judge will have ruled that the defendant failed to establish a prima facie case of entrapment. He will, in effect, have ruled that there is non-entrapment, as a matter of law. The defendant will not be entitled to have the jury consider the issue of entrapment and there will, therefore, be no jury instructions on the subject.

The appellate issue here will be whether the defendant did or did not establish a prima facie case. Also involved may be the sub-issue of what are the elements of entrapment as to which the defendant is required to establish such a prima facie case. Issues in this procedural posture also will, by their very nature, arise only in jury trials. Procedural Posture A — Entrapment As a Matter of Law: Since first recognizing the existence of entrapment in Callahan in 1932, all twelve Court of Appeals cases dealing with entrapment have arisen in this procedural posture, dealing with the single question of whether entrapment was established, as a matter of law.

In 1952, the Court of Appeals decided Ferraro v. State, 200 Md. 274 , 89 A.2d 628 . In that first post-Sorrells case to be decided in Maryland, the Court of Appeals recognized the existence of the entrapment defense, pointing out that “This Court has never directly passed upon the defense of entrapment, because the question was not presented by any ruling in the record.” 200 Md. at 279 , 89 A.2d 628 . It referred to the earlier allusions to entrapment, however, in Hummelshime v. State, supra, and Callahan v. State, supra. It summarized fully the two different theories of entrapment expressed by the Supreme Court in Sorrells v. United States, even as it concluded that it was not “necessary to decide which, if any, of the divergent views of the defense of ⁶⁰ entrapment is law in Maryland.” 200 Md. at 281 , 89 A.2d 628 .

It was only necessary to decide that under any theory of entrapment, entrapment had not been affirmatively established, as a matter of law, and that the verdict of guilty, in a court trial, was not, therefore, clearly erroneous. Since Ferraro , eleven additional Court of Appeals decisions have considered the entrapment defense. The issue in each of those cases has been in precisely the same posture as in Ferraro . In each, the defendant has claimed that entrapment was established as a matter of law and in each, the Court of Appeals has held that that was not the case.

In three of the cases, defendants were appealing jury verdicts of guilty. In each, they claimed that because of the foreclosing effect of entrapment, as a matter of law, they were entitled to directed verdicts of not guilty and the trial judges were in error in submitting the cases to the jury. The Court of Appeals rejected all three claims. Baxter v. State, 223 Md. 495 , 165 A.2d 469 (1960); Lane v. State, 226 Md. 81, 87-88 , 172 A.2d 400 (1961); Whyte v. State, 229 Md. 459 , 184 A.2d 738 (1962).

In the other eight cases, verdicts of guilty 23 had been handed down in court trials. In each of the eight cases, the defendants claimed that because of the affirmative establishment of entrapment, as a matter of law, the trial judges had been clearly erroneous in rendering their verdicts of guilty. Indeed, in a non-jury case, this is the only way in which the issue of entrapment could arise. The Court of Appeals rejected all eight claims.

Matthews v. State, 228 Md. 401 , 179 A.2d 892 (1962); Stewart v. State, 232 Md. 318 , 193 A.2d 40 (1963); Banton v. State, 232 Md. 328 , 193 ⁶¹ A.2d 46 (1963) cert. denied 375 U.S. 977 , 84 S.Ct. 497 , 11 L.Ed.2d 422 (1964); Snead v. State, 234 Md. 63 , 197 A.2d 920 (1964); Cross v. State, 235 Md. 377, 201 A.2d 767 (1964); Pointer v. State, 239 Md. 641 , 212 A.2d 260 (1965); Smith v. State, 242 Md. 712 , 219 A.2d 16 (1966); and Grohman v. State, 258 Md. 552 , 267 A.2d 193 (1970) cert. denied 401 U.S. 982 , 91 S.Ct. 1204 , 28 L.Ed.2d 334 (1971). Other than for Grohman v. State’s placing of its seal of approval upon our decision in Simmons v. State, 8 Md.App. 355 , 259 A.2d 814 (1969), to adopt the subjective test of entrapment, following the Supreme Court majorities, rather than the objective test of entrapment, urged by the Supreme Court minorities, this has been the sum total of legal doctrine developed by the Court of Appeals on the subject of entrapment. There has been no discussion of what is required to establish a prima facie case so as to avoid a directed verdict of non-entrapment, as a matter of law. There has been no discussion, once a prima facie case had been established, of the elements as to which a jury must be persuaded; of the burden of persuasion itself; or of its allocation.

Turning to the decisions of this Court, on 26 prior occasions the subject of entrapment has been before us. As with the cases from the Court of Appeals and for precisely the same reason, most of our opinions have been singularly unenlightening. On nine occasions, following jury verdicts of conviction, defendants had claimed that the affirmative establishment of entrapment, as a matter of law, entitled them to directed verdicts of not guilty and that the trial judges thereby committed reversible error in submitting the cases to the juries. We rejected all nine such contentions.

Dolan v. State, 1 Md.App. 292 , 229 A.2d 443 (1967); Gamble v. State, 2 Md.App. 271, 234 A.2d 158 (1967); Holt v. State, 3 Md.App. 544 , 240 A.2d 355 (1968); Poff v. State, 4 Md.App. 186 , 241 A.2d 898 (1968); DiNatale v. State, 8 Md.App. 455 , 260 A.2d 669 (1970); Gill v. State, 11 Md.App. 593, 597 , 275 A.2d 505 (1971); Berlin v. State, 12 Md.App. 48, 58-59 , 277 A.2d 468 (1971); Perkins v. State, 26 Md. ⁶² App. 526, 339 A.2d 360 (1975); Bowser v. State, 50 Md.App. 363, 439 A.2d 1 (1981). 24 On nine other occasions, following convictions in court trials, defendants claimed that the affirmative establishment of entrapment, as a matter of law, rendered the guilty verdicts by the judges clearly erroneous. We rejected all nine of those contentions. Jarrett v. State, 1 Md.App. 448 , 230 A.2d 683 (1967); Simmons v. State, 8 Md.App. 355 , 259 A.2d 814 (1969); Rettman v. State, 15 Md.App. 666 , 292 A.2d 107 (1972); Hignut v. State, 17 Md.App. 399 , 303 A.2d 173 (1973); Schuman v. State, 19 Md.App. 400 , 311 A.2d 460 (1973); Lawson v. State, 25 Md.App. 537, 335 A.2d 135 (1975); Dravo v. State, 46 Md.App. 622 , 420 A.2d 1012 (1980); Grindstaff v. State, 57 Md.App. 412 , 470 A.2d 809 (1984); Sproates v. State, 58 Md.App. 547 , 473 A.2d 1289 (1984). In summary, in 31 of the 34 post-Callahan, post-Sorrells Maryland cases to have considered the subject of entrapment, 25 the actual issue for decision was whether entrapment had been affirmatively established, as a matter of law, so as to entitle the defendant to a reversal, either 1) because the trial judge erroneously submitted the case to a jury or 2) because the trial judge, sitting as a jury, was clearly erroneous in arriving at a guilty verdict.

In none of the cases did either appellate court find entrapment to have been established as a matter of law. ⁶³ As a group, the cases have unfortunately been clustered in that appellate posture least conducive to the growth of any body of legal doctrine on the subject of entrapment. Our precedents on the other two procedural postures are few. Procedural Posture B — Entrapment as a Matter of Fact: Shedding light on the questions of what to do when the entrapment issue is in the hands of the jury is a single case (but an exceedingly well reasoned one). One of the two necessary holdings in Bowser v. State, 50 Md.App. 363 , 439 A.2d 1 (1981), was that entrapment had not been established, as a matter of law, and that the trial judge, therefore, was not in error in permitting the case to go to the jury.

The second holding was that the trial judge committed error in admitting untrustworthy hearsay evidence before the jury as the State sought to prove the defendant’s criminal predisposition. Although the entrapment defense may open up areas of substantive inquiry not ordinarily accessible to the prosecution, such as the defendant’s basic character and criminal predisposition, the ordinary rules of evidence for pursuing those inquiries still abide. We held, at 50 Md.App. 375 , 439 A.2d 1 : “[Sjuspicion, rumor, secondhand reputation evidence, and other unreliable hearsay normally barred by rules of evidence do not individually or collectively become admissible merely because the defendant has raised the defense of entrapment. By asserting the defense, however, the defendant does place predisposition in issue, and prior convictions for similar offenses, prior similar criminal acts, and other probative evidence of state of mind are admissible to assist the trier of fact in determining whether the police ensnared in their net an innocent lamb lured astray, or a predatory wolf pursuing the bait.” In discussing the procedural incidents when the entrapment question is properly before the jury, Bowser con ⁶⁴ sidered both the level of the burden of persuasion and its allocation.

The indispensable service of this thoroughly researched and meticulously analyzed opinion of Judge Chasanow, however, was that it extirpated from the procedural field (or should have, if read and followed) some vines of doctrinal confusion that were well on their way to choking off more rational growth. The effort in Bowser was doubly heroic because of the Olympian credentials of some of the sources of the misbegotten and intertwining strands and because of their gradually lengthening pedigrees. Bowser cut the Gordian knot. The original source of confusion (perhaps even error) was no less a figure than Judge Learned Hand.

Even Homer nods. The prosecution that ultimately led to the Supreme Court decision of Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958), went to the Second Circuit Court of Appeals twice before making it to the Supreme Court. On the first occasion, Judge Hand, writing for the Court, reversed the conviction in the District Court and remanded for a new trial. United States v. Sherman, 200 F.2d 880 (2d Cir.1952).

The reason for the reversal was that a supplemental jury instruction on entrapment was erroneous. The source of future confusion, however, came in dicta. The only predecessor case on entrapment that Judge Hand felt called upon to analyze was the only Supreme Court pronouncement on the subject then extant, Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932). Judge Hand properly distilled from Sorrells the fact that the entrapment defense consists of two elements.

They are classically stated as they were restated in Bowser at 50 Md.App. 368 -369, 439 A.2d 1 : “Entrapment occurs when a police officer or government agent induces the commission of a crime by one who, except for the government’s enticement, solicitation or persuasion, would not have committed the crime. The test requires two inquiries: ⁶⁵ ‘(1) [Wjhether there was an inducement on the part of the government official ... and if so (2) [Wjhether the defendant showed any predisposition to commit the offense.’ ” Judge Hand then somehow came up with a conceptualization of the two elements and of their relationship that was not to be found in Sorrells. Instead of looking upon the two elements as both necessary conditions for a successful entrapment defense, he seemed to conceptualize the first element — the inducement — as the “defense” itself and the second element — predisposition—as the government’s possible “reply” to the defense. Out of this, he wove, in dicta, the following conclusion, 200 F.2d at 882 -883: “Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence.

On the first question the accused has the burden; on the second the prosecution has it.” The cause for this illusion that there are opposing burdens is semantic. The appearance of such a phenomenon arises almost automatically out of the typical way in which the entrapment defense is phrased. The elements of the defense are traditionally stated in the affirmative, which is ordinarily good conventional usage. The first element, therefore, ends up being asserted in terms of what a defendant must show, whereas the second ends up being asserted in terms of what the prosecutor must show.

A consistency in looking at the elements from a fixed vantage point (the defendant’s or the State’s but not both) would, of course, be much more desirable. It would result, however, in the mixing of affirmative and negative statements. Doctrinally, the elements of the defense that an accused must establish to make a prima facie case are: 1. The presence of an inducement, and 2.

The absence of a predisposition. ⁶⁶ Conversely, the State’s burden of persuasion to overcome such a prima facie case is to prove: 1. The absence of an inducement, and/or 2. The presence of a predisposition. Unfortunately, the definitions seldom come out that way.

The linguistic imperative of parallelism prevails over doctrinal consistency and we get a mish-mash of a definition combining the presence of an inducement with the presence of a predisposition. We typically end up, simply through thoughtless phrasing, with a hybrid definition that combines the first half of the burden of production with the second half of the burden of ultimate persuasion. This is why our procedures get mixed up. Out of just such a semantic happenstance or quirk of language has arisen the misperception that these are separate and bi-directional burdens of persuasion.

It is even understandable why the traditional phraseology took the turn it did. Although a defendant must prove both elements as part of his burden of production, his major effort will generally be made as to the first — -the inducement. It was inducement, therefore, that enjoyed the affirmative phrasing. Although the State may disprove either element as part of its counter burden of persuasion, its major effort will generally be made as to the second.

It was predisposition, therefore, that enjoyed the affirmative phrasing — the usage “predisposed” rather than “non-predisposed” ends up in the definition. As a result, the mind is required to shift viewpoints halfway through the definition. Language plays tricks on us and, fifty years later, we have no idea how certain things came to be. The whole notion of separate burdens of persuasion going in opposite directions might have been avoided if Judge Hand had focused on the more singular statement in Sorrells v. United States where, at 287 U.S. 448 , at 53 S.Ct. 215 , it defined entrapment as “the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to ⁶⁷ punish them.” (emphasis supplied).

From that definition, the initial burden is more readily perceived as being on the defendant to prove that he was “otherwise innocent” rather than on the prosecution to prove that he was criminally predisposed. Indeed, the Supreme Court’s most recent stating of the definition, through Chief Justice Rehnquist in Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883, 886 , 99 L.Ed.2d 54, 60-61 (1988), proceeds from the fixed vantage point of what the defendant must show to establish a prima facie case: “[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.” (emphasis supplied). This more careful stating of the definition helps us avoid the semantic snare to which earlier statements exposed us. Judge Hand’s conceptualization of the defense as one involving opposing burdens of persuasion has been almost universally rejected.

To be sure, his own Second Circuit still utilizes his suggested approach. United States v. Braver, 450 F.2d 799, 801-803 (2d Cir.1971). Every other federal circuit, however, considers the defendant to have the initial burden of production as to both inducement and lack of predisposition and, if a prima facie case be established, the prosecution to have the ultimate burden of persuasion beyond a reasonable doubt to negate the defense by showing either the lack of an inducement or the presence of a criminal predisposition. Sagansky v. United States, 358 F.2d 195, 202-203 (1st Cir.1966); Kadis v. United States, 373 F.2d 370 (1st Cir.1967); United States v. Watson, 489 F.2d 504, 509 (3d Cir.1973); United States v. Groessel, 440 F.2d 602, 606 (5th Cir.1971); United States v. Marren, 890 F.2d 924 (7th Cir.1989); Notaro v. United States, 363 F.2d 169, 175 (9th Cir.1966); United States v. Christopher, 488 F.2d 849 , 851 n. 1 (9th Cir.1973); United States v. Ortiz, 804 F.2d 1161 (10th Cir.1986); Johnson v. United States, 317 F.2d 127 , 129 n. 2 (D.C.Cir.1963). ⁶⁸ In larger terms, this is the only approach that makes sense.

When a party has a burden of production on an issue — e.g. primary negligence, the existence of a contract, a legally sufficient case of burglary, a defense of entrapment — it bears the onus of producing some credible evidence which, if believed, would establish each and every necessary element of the thing to be proved. The burden of production is not to establish a prima facie case of inducement but to establish a prima facie case of entrapment (in all of its parts). If the prima facie case is established and the question is submitted to a jury, one party or the other then assumes the burden of persuasion. It is either for the State to persuade the jury that entrapment did not occur or for the defendant to persuade the jury that entrapment did occur.

In either context, the thing to be proved is entrapment (not just a part of entrapment). Although generally rejected elsewhere, Judge Hand’s notion of separate and opposing burdens of persuasion found initial favor in Maryland. Simmons v. State, 8 Md.App. 355 , 259 A.2d 814 (1969), involved a very limited issue. The literal holding was that entrapment had not been established as a matter of law and that the trial judge was not, therefore, in error in having submitted the case to the jury.

Simmons , however, engaged in extensive dicta. Some of the Simmons dicta adopted the Learned Hand dicta. After quoting at length and with approval the critical language of Judge Hand from United States v. Sherman, 200 F.2d 880 (2d Cir.1952), at 8 Md.App. 361 -362, 259 A.2d 814 , Simmons went on, at 8 Md.App. 364 -365, 259 A.2d 814 , to restate the notion in its own words: “The defense of entrapment having been raised, the issue of whether a defendant has been entrapped is for the trier of fact as part of its function of determining the guilt or innocence of the accused. Thus it is a matter of the sufficiency of the evidence.

The burden as to the first question — did the police, directly or through their agent, induce the defendant to commit the offense charged in the indictment — is on the defendant. This ⁶⁹ may be established by a preponderance of the evidence. The burden as to the second question — was the defendant’s criminal conduct due to his own readiness and not to the persuasion of the police, that is, did he have a predisposition to commit the offense — is on the State. This must be established beyond a reasonable doubt.

(footnotes omitted) (emphasis supplied). Simmons actually added a wrinkle that was nowhere to be found in the opinion of Judge Hand. Not only were there to be two burdens of persuasion moving in opposite directions but the levels of persuasion were to be different as well. The defendant was required to persuade the jury that an inducement occurred by a bare preponderance of the evidence.

Then the State was required to persuade the jury that the defendant was criminally predisposed beyond a reasonable doubt. Compounding the problem is that although this statement in Simmons is only dicta, it is dicta which, locally, through constant repetition, has taken on almost patriarchal status. Bowser has been the antidote. Judge Chasanow recounted, without any remote suggestion of disapproval, the trial judge’s instructions to the jury which placed the burden of persuasion, at the beyond a reasonable doubt level, on the State with respect to both aspects of the entrapment defense: “The trial judge instructed the jury on the issue of entrapment and further instructed to the effect that where the defense of entrapment is raised, the State has the burden of proving beyond any reasonable doubt that the defendant was not induced by a state agent to violate the law.

If the State fails to prove the defendant was not induced, then in order to convict, the jury would have to find beyond any reasonable doubt that the defendant was ready and willing to commit the crime charged.” (emphasis supplied). 50 Md.App. at 367 , 439 A.2d 1 . Bowser also noted that, without any parsing of the defense into constituent elements, the State had conceded that “the State had the ⁷⁰ burden of proving beyond any reasonable doubt that the defendant was not entrapped.” 50 Md.App. at 367 n. 4, 439 A.2d 1 . Bowser then indicated that the cases of Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), Evans v. State, 28 Md.App. 640 , 349 A.2d 300 (1975), and State v. Evans, 278 Md. 197 , 362 A.2d 629 (1976), cast some doubt upon the constitutional propriety, under the Due Process Clause, of placing a burden of persuasion on the issue of inducement upon a defendant, after the defendant had successfully met his burden of production in that regard. Judge Chasanow then effectively, at 50 Md.App. 367 n. 4, 439 A.2d 1 , ended the argument by quoting Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 262-263 (1971): “[Mjodern case law indicates that while the defendant has the burden of production on the issue of inducement, he does not have the burden of persuasion.

To raise an issue for the jury, he need only produce, through government witnesses or otherwise, some evidence that government agents induced the offense. He need not persuade the trial judge that the evidence is credible. Nor is he required to persuade the jury. Almost every federal court of appeals that has considered the issue has disapproved jury instructions placing the burden of persuasion upon the defendant on the issue of inducement, (footnotes omitted).” Once a defendant has met his burden of production by establishing a prima facie case of entrapment in all of its aspects, then the burden of persuasion falls upon the State to persuade the jury beyond a reasonable doubt that entrapment has not occurred.

It may do this by persuading the jury that any of the necessary elements of entrapment did not exist. See United States v. Rodriguez, 858 F.2d 809, 814-815 (1st Cir.1988); United States v. Groessel, 440 F.2d 602, 606 (5th Cir.1971). ⁷¹ Procedural Posture C — Non-Entrapment As a Matter of Law: In this final procedural posture, the judge will have ruled, as a matter of law, that there was non-entrapment. The literal ruling will have been that the defendant failed to make out a prima facie case. The jury, therefore, will have received no instructions on the subject of entrapment.

The jury, moreover, will not even have been allowed to speculate about something which, for it, was a non-issue. By its very nature, this procedural problem will arise only in the context of a jury trial. The single appellate issue will be whether the defendant, as a matter of law, made out a prima facie case. Three decisions of the Court of Special Appeals have considered this issue.

They are Byrd v. State, 16 Md.App. 391 , 297 A.2d 312 (1972); Fisher v. State, 28 Md.App. 243 , 345 A.2d 110 (1975); and Adcock v. State, 66 Md.App. 454 , 504 A.2d 1160 (1986). IT IS OUR CONCLUSION THAT THE FIRST OF THESE, BYRD v. STATE, WAS WRONGLY DECIDED. WE HEREBY OVERRULE IT. It was flawed in several regards and we will consider each of them in turn.

Basically, it adopted a faulty framework of analysis. It was the third installment of what we deem to have been the Learned Hand — Simmons v. State — Byrd v. State — strain of confusing (and perhaps confused) analysis. a. Byrd v. State: A False Light It is Byrd v. State, of course, on which the appellant in this case, quite understandably, places his major reliance. 26 The facts in Byrd were sufficiently similar to the facts in ⁷² the present case to make it an attractive analogue. An undercover policeman, working through an informant, purchased $20 worth of heroin from the defendant Byrd.

Byrd’s defense was entrapment. He testified that one of the two undercover informants working with the police pleaded with him for twenty minutes to sell him heroin to give to “sick friends.” Byrd protested that he was reluctant to sell the heroin because he was addicted to it and needed it for his own use. Significantly, he acknowledged that he was “in the business of selling heroin” but “merely to support my own habit.” At the end of the entire case, the trial judge ruled that a prima facie case of entrapment had not been established. He declined to give any jury instructions on the subject.

Byrd reversed that decision of the trial judge. We conclude that the Byrd analysis was faulty in two significant respects: the first, general; the second, more specific. b: Flaw No. 1: An Exaggerated Sense of the Jury’s Role Even before we turn to its precise holding, we note that the Byrd opinion betrays an exaggerated sense of the role of the jury in resolving entrapment issues, a misperception that permeates the opinion. Instead of a careful analysis of the respective roles of jury and court, burdens of persuasion for the one but burdens of production for the other, there is an almost exalted view of the jury function on the subject of entrapment. The reason for the misperception is readily understandable.

It involves a pitfall so basic and common that it deserves to be analyzed fully. The case law abounds in broad, bold statements about entrapment’s being characteristically a jury issue. It is an ABC of first semester Legal Method, however, never to take a statement, no matter how rhetorically attractive, as true, without careful and constant reference back to its originating context. Pronouncements lifted from context do not travel well.

Such statements about the jury’s role were correct in the limited seedbeds in which they sprouted. Once uprooted, however, they take on the appearance of ⁷³ universal verities. Many an unwary reader (including judicial opinion writers), oblivious of the generative context, has been led to transplant the attractive verity into all sorts of other settings in which it is sadly out of place. Two particular situations have been especially prolific in giving rise to the broad, bold statements about entrapment being generally a question for the jury.

One such context was the prominent and ongoing debate between the two competing theories as to the substantive nature of entrapment — the subjective test versus the objective test. “[U]n-less it can be decided as a matter of law, the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.” Sherman v. United States, 356 U.S. 369, 377 , 78 S.Ct. 819, 823 , 2 L.Ed.2d 848, 854 (1958). “The question of entrapment is generally one for the jury, rather than for the Court.” Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883, 886 , 99 L.Ed.2d 54, 61 (1988). Out of context, those statements seem attractive authority for the proposition that a judge should be quick to pass the entrapment issue to the jury and should be concomitantly hesitant to rule that a prima facie case has not been established. In context, of course, those statements did not remotely stand for any such thing. The statement in Sherman came as Chief Justice Warren, for the majority, was rejecting the argument of Justice Frankfurter, proponent of the alternative “objective test” conceptualization, that entrapment issues, as a matter of course, “should be decided by the judge, not the jury.” The Sherman statement, moreover, was carefully limited by the proviso, “unless it can be decided as a matter of law.” The entire discussion, in context, had nothing to do with when entrapment is an issue of law for the judge and when it is an issue of fact for the jury.

It involved rather the very different ways in which the two competing conceptualizations of the entrapment defense handled actual issues of fact. Under the subjective test, such issues of fact were for the jury. Under the objective test, on the other hand,