dissenting. We are called upon frequently to review cases involving allegations of entrapment by various law enforcement agencies. This case, like White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989), and many others, was initiated by the. police. Naturally, the scheme included an informant who has a criminal record and is facing another trip to the penitentiary, and an “undercover” law enforcement person — in this case a woman.
The informant in this case faced not just a sentence involving a shooting; he faced a sentence for shooting with intent to kill. His desire to obtain favorable action in his own criminal case no doubt weighed most heavily on his mind as he went about his designated job of setting people up for criminal charges. The fact that the informant’s rent was paid by the police, as were his expenses such as travel, food, drinks, pool fees, and game machine costs, did not reduce his desire to trap the appellant. The informant was also paid $30 to $50 “by the sale” for each transaction for all those he could get to deal in marijuana. The state also paid the rent and expenses for the undercover officer and her live-in state police boyfriend.
In the present case only two people know what actually occurred when this deal was planned — the appellant and the informant. The informant, pursuant to a subpoena issued by the state, showed up at the commencement of the trial but mysteriously disappeared for the rest of the trial. This disappearing act, although not new, is becoming commonplace in this type of case. Had this witness been compelled to testify, it is not too inconceivable that the jury might have believed that indeed the appellant was entrapped. The defense counsel had caused a subpoena to be issued for the same witness but it was not served by the sheriff because he had already served the state’s subpoena.
The jury was shown a video tape of the meeting of Bryant, McCaslin, and Powell, at Powell’s Russellville apartment, in which McCaslin sold Powell a quarter of a pound of marijuana for $650. All of this, of course, had been pre-planned by the officers and the informant. No doubt Bryant coached the appellant on what to do and say when they arrived at the undercover agent’s apartment. If the appellant and the informant had rehearsed the transaction, the video could not have been more incriminating to the appellant’s case. The missing witness was absolutely essential to the defense. The state offered no explanation for his mysterious disappearance, but I have no doubt whatsoever that the state could have produced him for trial.
In Arkansas, entrapment is by statute an affirmative defense, Ark. Code Ann. § 5-2-209(a) (1987). Consequently the tradition has been that the defendant must bear the burden of proof on this defense by a preponderance of the evidence. Ark. Code Ann. § 5-1 -111 (d) (1987); see Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); and Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). The majority correctly notes that McCaslin has cited no precedent from this jurisdiction in which it was held that entrapment was established as a matter of law solely on the basis of the unrebutted testimony of the defendant. However, I have found no Arkansas decision where this issue has been presented to an appellate court.
Ordinarily there is no requirement that the trier of fact believe a defendant’s testimony. Thus, given the defendant’s burden of proof on the issue of entrapment, this question of fact was submitted to and decided by the jury. However, it is significant that the state made no effort to offer any evidence to rebut the appellant’s version of the facts.
McCaslin has cited and quoted extensively from Sorrells v. United States, 287 U.S. 435 (1932), and also has cited Sherman v. United States, 356 U.S. 369 (1958). These two decisions define the entrapment defense in the federal courts, but they are not binding on this court. The Supreme Court’s discussion of the entrapment defense is, however, quite instructive.
The United States Supreme Court discussed the function of the entrapment defense in Sherman v. United States, supra:
In Sorrells v. United States, 287 U.S. 435, this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” 287 U.S. at 442. Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.
The majority opinion discusses in some detail several Mississippi, Arizona, and Ninth Circuit Court of Appeals decisions that essentially shift the burden to the state once the defense has been raised. As noted by the Arizona Supreme Court in State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972), a defendant is in a very poor position to establish entrapment. The question to be decided is whether we should do as the Mississippi and Arizona courts have done and hold that, by presenting a prima facie case of entrapment, a defendant has satisfied his burden of proof at that point and that the burden then shifts to the state to come forward with evidence that the defendant was not entrapped.
The nature of entrapment is such that it is often unlikely the act itself will be observed by anyone other than the defendant and the government operative. Moreover, I cannot help but note the pattern of “unavailability” of these “informants” to testify at trial. A defendant who asserts entrapment necessarily places himself in the posture of admitting commission of an illegal act. Spears v. State, supra; and Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). He thus is in a very weak position to convince a jury that he was indeed induced by the state to commit a crime.
The state cites Walls v. State, supra, and Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978), in support of its contention that entrapment may be established as a matter of law only where there are no disputed facts. In Leeper, there was testimony by the undercover officers who participated in the illegal whisky purchase. The “informant” also testified. In Walls, the informant was not present to testify. However, an undercover state police officer testified that, while the alleged informer had “paved the way” for the drug sale, he was not, to the officer’s knowledge, employed by or otherwise compensated by the state police. That left open the question whether, in the words of Ark. Code Ann. § 5-2-209(b) (1987), the alleged informant was “a person acting in cooperation with” a law enforcement officer. Walls is distinguishable from the present case because here there is no dispute concerning the fact that Bryant was acting in cooperation with the police.
There is absolutely no rebuttal by the state of McCaslin’s testimony that Bryant supplied the marijuana and induced him to make the sale. The majority cites no case holding that the testimony of a defendant asserting entrapment may not establish the defense as a matter of law if the state has produced no rebuttal evidence. Nor have I found any such case. Since this question is one of first impression in this jurisdiction, we should strive to insure that this decision is founded upon solid principles of law and justice.
I conclude that we should follow the decisions from other jurisdictions holding that the burden of proving the defense may be satisfied by the testimony of the accused unless that testimony is rebutted by evidence produced by the state. Because an accused must in effect admit having committed what would otherwise be an offense in order to take advantage of the entrapment defense, it is of no consequence whether the state must prove lack of entrapment beyond a reasonable doubt. That is so because assertion of the defense of entrapment does not negate an element of the crime. See E. Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 429 (1976). The overall burden of proof, or the “burden of persuasion” as Professor Osenbaugh calls it, remains with the defendant on the issue of entrapment. However, the state must go forward with the evidence when the defendant’s evidence has presented a prima facie case on the issue. When the state is unable to produce any evidence to dispute that evidence, even if it consists only of the testimony of the accused, a verdict should be directed.
The police in this case at the least actively participated in the crime; at worst the police actually were the major factor that precipitated this crime. Under such circumstances, it is not unreasonable to place upon the state the burden of establishing that the defendant was not entrapped. I would reverse and dismiss because, in my opinion, it was the police who planned and executed this crime. After all, the function of law enforcement does not include the manufacturing of criminal activity.