Proposed Jury Instruction for Entrapment


NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

ENTRAPMENT

_______________ INSTRUCTION NO. _____

    The Court instructs the jury that where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment and the law as a matter of policy forbids his conviction in such a case. On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that the state law enforcement agents provided what appears to be a favorable opportunity is not entrapment. (For example, when the state law enforcement agents suspect that a person is engaged in the illicit sale of narcotics, it is not entrapment for a state law enforcement agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to purchase narcotics from the suspected person). If, then, the jury should find beyond a reasonable doubt from the evidence in the case that: before anything at all occurred respecting the alleged offense involved in this case, that the defendant was ready and willing to commit [a] crime[s] such as are charged in the indictment, whenever an opportunity to commit such [a] crime[s] were afforded, and that state law enforcement or their agents did no more than offer the opportunity to commit such [a] crime[s], then the jury should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the state, then it is your duty to find him not guilty.

COMMENT

ENTRAPMENT

1.     Franklin D. Cleckley, Handbook On West Virginia Criminal Procedure, The Michie Company, 1993, Volume I, pages I-566-567 citing I. E. Devitt & C. Blackman, Federal Jury Practice And Instructions, Section 13.09 (3rd ed. 1977). Justice Cleckley notes that this instruction was approved by the West Virginia Supreme Court of Appeals in State v. Taylor, 175 W.Va. 685, 687-688, 337 S.E. 2d 923, 925- 926 (1985) citing his "Handbook." See also State v. Basham, 159 W.Va. 404, 223 S.E. 2d 53 (1976); State v. Smith, 156 W.Va. 385, 193 S.E. 2d 550 (1972).
2.     Cleckley, Supra., Justice Cleckley points out that if an "...entrapment [defense] is raised, the state is entitled to explain a police officer's role in a drug investigation and this can be done by an instruction from the trial court." Citing State v. Dameron, 172 W.Va. 186, 188, 304 S.E. 2d 339, 341-342 (1983). See "Police Officer's Role In Drug Investigation" instruction.
3.     State v. Dillon, 447 S.E. 2d 583 (W.Va. 1994). The State may offer Rule 404(b) evidence of a defendant's other uncharged drug dealings to rebut evidence of an entrapment. A limiting instruction will need to be given, limiting the jury's use of such evidence to combating the entrapment defense. See instruction "...Collateral Acts."
4.     State v. Hinkle,169 W.Va. 271, 286 S.E. 2d 699 (1982); State v. Knight, 159 W.Va. 924, 230 S.E. 2d 732 (1976). Failure to offer any evidence to rebut an entrapment defense fairly raised can result in a directed verdict of acquittal. The defendant must offer some evidence of entrapment first to fairly raise the defense, as entrapment is an affirmative defense. See State v. Hinkle, 169 W.Va. 271, 286 S.E. 2d 699 (1982).