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State v. Lively

August 29, 1996


Madsen, J. Durham, C.j. (concurring in part, Dissenting in part)

The opinion of the court was delivered by: Madsen


MADSEN, J. -- At issue in this case is whether: (1) the trial court erred in instructing the jury as to the burden of proof for the defense of entrapment; (2) the evidence supports a finding, as a matter of law, that the Defendant was entrapped; and (3) the actions of the State constitute outrageous conduct in violation of the Defendant's right to due process. On direct review, we reverse the Defendant's conviction.


This case arises from an undercover drug investigation in Walla Walla assisted by a police informant, Kamlesh "Koby" Desai. On June 6, 1991, Desai phoned a drug unit detective to arrange a delivery of cocaine from the Defendant, Amy Lively. The detective arrived at Desai's residence at about 3:00 p.m. and gave the Defendant $70. She left in Desai's automobile and returned in fifteen minutes. She told the detective, whom she knew as Rick, a friend of Desai, that she would have the cocaine for him later that day. The detective left and, after receiving a call from Desai, returned to Desai's apartment three hours later. At that time, the Defendant delivered a packet of cocaine weighing 1.3 grams to the detective.

On June 17, 1991, the same detective, along with another member of the drug unit, responded to a telephone call from Desai arranging another delivery of cocaine. They arrived at Desai's apartment at 8:30 p.m. The purchase price was $85 because the Defendant was using a different source. One detective handed her the money and she left in Desai's car. The Defendant called to say her connection would be delayed. She did not return until after midnight.

The detectives testified that when she returned, the Defendant was upset and initially said she did not have the cocaine or the money. After one of the detectives claimed she was trying to steal his money, she went into the kitchen, retrieved a packet of cocaine weighing .9 grams and handed it to him. The detectives stated she then indicated she wanted to get high and have sex with one of them. In addition, she wanted $10 for her troubles and the detective gave her the money. The Defendant denied saying she wanted to get high or have sex with the detective. She also stated she did not profit from the sales. She admitted receiving the $10, but stated the money was to be used to put gas in Desai's car.

The Defendant was charged with two counts of delivery of a controlled substance. At her trial in November 1992, she did not dispute the two deliveries of cocaine, but claimed a defense of entrapment. In support of that defense, the Defendant testified that by the time she was fourteen years old she was drinking alcohol and using cocaine. She stopped using cocaine at fifteen when she learned she was pregnant. At age eighteen, she was raising two children and her husband was stationed in Korea. She began drinking alcohol heavily. After attempting alcohol withdrawal on her own, she admitted herself into a detoxification program at St. Mary's Medical Center. Immediately following the program she began attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. In March 1991, she had an alcoholic relapse and entered a 28-day inpatient detoxification program at Walla Walla General Hospital. Prior to meeting Desai, the Defendant testified that she had never sold or offered to sell drugs. She has never been arrested or convicted of any crime other than the charges for delivery of cocaine in June 1991. She also testified that she was not using drugs at the time of the offenses and had not used cocaine since her first pregnancy.

Further, the Defendant established that early in 1991, Desai began working as a police informant employed by the Walla Walla City/County Drug Unit. He was relocated from LaGrande, Oregon, where he also had operated as an informant. Desai was provided with an apartment, including utilities, a car, and other living expenses, in exchange for his work as an informant. He signed a contract with the drug unit which required that he not break any criminal laws, not use narcotics, and stay in daily communication with the drug unit. The detectives were in contact with Desai as many as six to twelve times a day to check on his progress.

Desai began attending AA/NA meetings with the knowledge and approval of the detectives from the drug unit. He attended these meetings in order to identify repeat drug addicts continuing to sell illegal drugs.

The Defendant met Desai at an AA/NA meeting in mid-April 1991, following her completion of the inpatient hospital program. She tried to kill herself after completing the program and remained emotionally distraught. She testified that Desai asked her out on a date about two weeks after they met. She maintained the relationship because he was very supportive and responsive to her emotional needs.

According to the Defendant, she and Desai began a sexual relationship in May 1991, and she moved in with him for two months. She also testified that in late June, Desai proposed marriage. Three defense witnesses testified that in early July 1991, Desai and the Defendant spoke of their plans to marry, of his assistance to her in obtaining a divorce, and of his offer to fly her friends to California for the wedding. From the testimony, it is clear the Defendant lived with Desai around the time the offenses occurred. A defense witness testified that the two lived together in the summer of 1991 until early July. Desai and one of the detectives testified that the Defendant stayed with Desai for three weeks. The detective testified that this living arrangement occurred when the Defendant was going through a divorce and Desai stated that at the time she was still a suspect. He also testified that the detectives approved the living arrangement. However, both detectives testified they did not approve and advised Desai not to develop a close personal relationship with the Defendant. The Defendant testified that about four to six weeks after she met Desai, he said he had a very good friend who wanted to buy cocaine and asked if she had a connection. She stated that Desai asked her to get drugs for Rick (the detective) repeatedly each day for two weeks before she agreed to purchase cocaine and she did so only because she was emotionally reliant on Desai.

Desai, who was called only as a rebuttal witness for the prosecution, disagreed with much of the Defendant's testimony. He stated that she was the first to discuss drugs by mentioning she had a connection and could get marijuana and cocaine. In response to a specific question, he denied asking her to obtain cocaine for his friend Rick a dozen times a day for two weeks. He testified that they never dated and never had a sexual relationship. He admitted, however, allowing her to stay at his apartment, but said that she used a separate bedroom during her stay. He also admitted that marriage was discussed, but testified that he never proposed to her and that she initiated the Discussion. Desai told the detectives that when the Defendant discussed marriage plans he thought it was a joke. He denied offering to assist her in obtaining a divorce. He also testified that he saw her use cocaine on three separate occasions.

Desai admitted lying repeatedly about his background in a deposition taken by the defense. He stated that he thought it was all right to do so to maintain his cover story and said he did not believe he was under oath during the deposition.

Based on the State's conduct in this case, the Defendant proposed instructing the jury that the absence of entrapment is an element of the offense of delivery of a controlled substance which the State must prove beyond a reasonable doubt. The court disagreed and instructed the jury that the Defendant had to prove the existence of entrapment by a preponderance of the evidence. Prior to closing argument, and instruction of the jury, the Defendant moved for a directed verdict contending that no rational trier of fact could find that she had failed to prove she was entrapped. The court also denied this motion.

Following a verdict of guilty on both counts of delivery of cocaine, the defense filed motions for arrest of judgment and for a new trial. These motions were denied. On March 24, 1993, the trial court sentenced the Defendant to thirteen months, an exceptional sentence below the standard range. The Defendant was granted direct review in this court. The State did not appeal the exceptional sentence.


In challenging her conviction, the Defendant first contends that the trial court erred because the jury instructions required her to prove the defense of entrapment by a preponderance of the evidence and failed to require the State to prove beyond a reasonable doubt that she was not entrapped.

This court has long recognized the existence of the common law defense of entrapment which occurs where:

the accused is lured or induced by an officer of the law or some other person, a decoy or informer, to commit a crime which he had no intention of committing. Such defense is not available where the criminal intent originates in the mind of the accused and the police officers, through decoys and informers, merely afford the accused an opportunity to commit the offense. State v. Littooy, 52 Wash. 87, 100 P. 170; State v. Ragan, 157 Wash. 130, 288 P. 218; Seattle v. Gleiser, 29 Wash. 2d 869, 189 P.2d 967. State v. Moore, 69 Wash. 2d 206, 208, 417 P.2d 859 (1966).

In 1975, the Washington Legislature adopted a statutory definition of entrapment which provides:

(1) In any prosecution for a crime, it is a defense that:

(a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and (b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.

(2) The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime. *fn1 RCW 9A.16.070.

The statute codified the common law definition of entrapment. Under RCW 9A.16.070, and common law, entrapment occurs when the crime originates in the mind of the police or an informant and the defendant is induced to commit a crime which he was not predisposed to commit. State v. Smith, 101 Wash. 2d 36, 42, 677 P.2d 100 (1984). The statute thus constitutes a restatement of the subjective test of entrapment as applied by both the federal and Washington State courts. *fn2 See Sorrells v. United States, 287 U.S. 435, 451, 53 S. Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249 (1932); State v. Waggoner, 80 Wash. 2d 7, 10, 490 P.2d 1308 (1971). See also 21 Am. Jur. 2d Crim. L. sec. 202, at 365 (1981). The defendant must "demonstrate that he was tricked or induced into committing the crime by acts of trickery by law enforcement agents. Second, he must demonstrate that he would not otherwise have committed the crime." Smith, 101 Wash. 2d at 43. While the court in Smith placed a burden of production on the defendant claiming the defense of entrapment, the question of which party had the burden of persuasion was not at issue before that court and is a question of first impression.

The Defendant concedes that she has the burden of producing evidence of the affirmative defense of entrapment, but only to the extent necessary to create a reasonable doubt of guilt. Once she has produced sufficient evidence, she argues that the State has the burden of persuading the jury beyond a reasonable doubt that the Defendant was not entrapped. In support of this argument, the Defendant relies on the statutory construction analysis discussed in State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983) and State v. Acosta, 101 Wash. 2d 612, 683 P.2d 1069 (1984).

McCullum and Acosta provide a two-tiered test to evaluate whether the State or a defendant has the ultimate burden of persuasion. First, the court must determine whether the defense is an element of the crime or whether the defense negates an element of the crime. Under the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution, the State must prove every element of an offense beyond a reasonable doubt. If a statute indicates an intent to include absence of a defense as an element of the offense, or the defense negates one or more elements of the offense, the State has a constitutional burden to prove the absence of the defense beyond a reasonable doubt. McCullum, 98 Wash. 2d at 490; Acosta, 101 Wash. 2d at 615; see also Patterson v. New York, 432 U.S. 197, 214-15, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

Second, if there is no due process requirement, the court must determine whether the Legislature intended, nevertheless, to place the ultimate burden of persuasion on the State to prove the absence of the defense beyond a reasonable doubt. If the statute does not expressly assign the burden to either the State or the defendant, and provides no indication of the Legislature's intent to overrule common law, the statute will be presumed to follow judicial precedent. McCullum, 98 Wash. 2d at 493; see also State v. Calderon, 102 Wash. 2d 348, 351, 684 P.2d 1293 (1984).

Turning to the first consideration of the McCullum/Acosta test we conclude that there is no due process requirement that the State prove the affirmative defense of entrapment beyond a reasonable doubt because it is not an element of the crime nor does it negate an element of the crime. State v. Casbeer, 48 Wash. App. 539, 740 P.2d 335, review denied 109 Wash. 2d 1008 (1987). The defense of entrapment is not of ...

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