Taylor v. State

HOFFMAN, Judge.

I respectfully dissent. Relying on the colloquy set forth in the majority opinion, the majority holds that an instruction on the defense of entrapment was warranted because Taylor’s testimony provided some evidence negating his predisposition to sell cocaine. I disagree.

Indiana has a bifurcated entrapment procedure. Hardy v. State (1982), Ind.App., 442 N.E.2d 378, 381. Evidence must first be presented showing the illegal conduct was instigated by government agents. Id. Once this becomes apparent, the State then has the burden of proving beyond a reasonable doubt the defendant had a prior disposition to commit the illegal act. Id. If the defendant presents any evidence which contradicts the State’s showing, then an instruction on entrapment is warranted. However, when the defendant does not present any evidence contradicting the State’s showing, an instruction on the affirmative defense of entrapment is unnecessary. Johnston v. State (1988), Ind., 530 N.E.2d 1179, 1181. More specifically, entitlement to an instruction on entrapment arises not upon the simple assertion of the defense, but rather when the defendant presents evidence showing a lack of predisposition. Salinas v. State (1991), Ind.App., 566 N.E.2d 1058, 1060.

Here, the majority acknowledges that the State presented sufficient evidence that Taylor was predisposed to deal in cocaine. Having done so, in order to warrant an instruction on entrapment, Taylor necessarily had to provide some evidence which contradicted the State’s showing.

Taylor did not do this. On the contrary, the evidence most favorable to the State discloses that during his direct examination, Taylor admitted to having sold cocaine on at least one prior occasion. Thus, we are not faced here with a situation in which a defendant offers rebuttal evidence to show that he was a normal law-abiding citizen with no predisposition to sell cocaine. Rather Taylor himself, by his own admissions at trial, closed the issue by establishing as a matter of law that he was predisposed to sell cocaine. He was not merely an innocent victim of government inducement. This concession in place, the question of whether he felt additional pressure from the authorities to sell cocaine on the incident in issue became irrelevant in the analysis.

Indiana adheres to a subjective rather than an objective approach to entrapment. The subjective standard centers upon the predisposition of the accused to commit the charged crime whereas1 the objective approach places its focus on the quality of the governmental acts. See Hardin v. State (1976), 265 Ind. 635, 358 N.E.2d 134, 136; Hardy, 442 N.E.2d at 380-381.

The colloquy relied on' by the majority does not serve to contradict Taylor’s predisposition. Rather, it goes to show, at best, that even though admittedly predisposed, he felt additional pressure by the authorities to deal in cocaine on the incident in question. “It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” U.S. v. Russell (1973) 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366, 376. In Russell, the Supreme Court found that respondent’s concession in the Court of Appeals that the evidence supported his predisposition to engage in illegal drug manufacturing was fatal to his claim of entrapment. Id. Also, because he was an active participant in an illegal drug manufacturing enterprise which began before the government appeared on the scene and continued after the government left the scene, the Russell court found *857that respondent was not an “unwary innocent” which the defense of entrapment was created to protect. On the contrary, he was an “unwary criminal” which the law of entrapment did not apply. Id. Such is the case here.

Although a correct statement of the law on entrapment, Taylor’s proposed instruction would have improperly forced the jury to conclude that although predisposed to sell cocaine in the past, this predisposition was somehow negated by the amount of pressure placed on Taylor during the incident in question. Such a case would amount to an objective approach to entrapment, a stance which Indiana does not take. Not only did Taylor fail to offer any evidence to contradict the State’s showing of predisposition, but his own testimony admitting the prior sale of cocaine closed the issue of entrapment for him. An instruction on entrapment was unnecessary. Because the trial court did not err in refusing to allow Taylor’s instruction, I would vote to affirm Taylor’s conviction.