Morris v. State , 300 Ark. 340 ( 1989 )

Robert H. Dudley, Justice.

The appellant was convicted and sentenced for the sale of a controlled substance. We affirm the judgment of conviction.

An undercover agent met the appellant at the Crystal Nickel Club in Cherokee Village. She asked if he had any marijuana to sell. He said yes and asked her to follow him to his car. There he sold her a small baggie of marijuana and said it was “good marijuana.” Laboratory tests showed the baggie did in fact contain marijuana. Appellant pleaded not guilty and, at trial, testified that he did not sell marijuana to the undercover agent. The trial court denied appellant’s requested instruction on entrapment. Appellant assigns this ruling as error.

Ark. Code Ann. § 5-2-209 (1987), provides that entrapment is an affirmative defense which occurs when a law enforcement officer induces the commission of an offense by a normally law-abiding person. The statute further provides: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” We have held that merely affording one the means and opportunity to do that which he is otherwise ready, willing, and able to do does not constitute entrapment. See Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

We have considered entrapment an affirmative defense and, when it is invoked, it is necessarily assumed that the act charged was committed. Fight, supra. We have held that when a defendant insists that he did not commit the acts he is charged with, one of the bases of the defense is absent, and he is not entitled to use the defense of entrapment. Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1974); Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). Thus, according to our cases, the appellant was not entitled to a jury instruction on entrapment, since he denied any involvement in the crime of selling marijuana to an undercover agent.

However, in Mathews v. United States, 485 U.S. 58 (1988), the Court held:

[E] ven if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

The underlying rationale of the holding is that a defendant is entitled to an instruction on any defense when there is sufficient evidence for a jury to find in his favor. We are not bound by the Mathews decision as it involves the construction of federal criminal procedure law and does not have a footing in constitutional law. Still, appellant asks us to follow Mathews, rather than our prior cases.

It makes no difference in the case at bar whether we follow Mathews or our prior decisions because there simply was no evidence in this case from which the jury could have found entrapment. Thus, we affirm the point of appeal. However, we can think of at least two situations where our prior cases and Mathews would conflict: (1) when the accused denies committing the offense charged, but the prosecution’s case-in-chief includes substantial evidence of entrapment; and (2) when the accused is charged with conspiracy, but denies being party to the conspiracy, and claims that any overt acts done by him were the result of entrapment. Neither of those cases are before us, and we will save the resolution of the issue until we have such a case.

For his other point of appeal the appellant argues that the trial court erred in refusing to grant a mistrial because of a question asked on cross-examination of a character witness. The trial court did not err. On direct examination the witness testified as follows:

Well, I’ve never heard anything against Dale Morris since I can remember, I mean, and I’ve never heard of him being in any trouble except the present trouble that he’s in now. All I know about him, he was always a pretty hard-working fellow and took care of his own business pretty well.

On cross-examination the prosecutor asked, “You haven’t heard about his DWI’s?” The witness responded that he had not, and appellant objected and moved for a mistrial.

A.R.E. Rule 404(a) deals with the basic question of whether character evidence should be admitted. Under it, an accused may introduce evidence of good character, just as the appellant in this case did. Once the admissibility of character evidence is established, Rule 405 provides the method of proof, as follows in pertinent part: “[P]roof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.”

The rule clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’s knowledge of specific instances of conduct. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion.

Affirmed.

Newbern, J., concurs. Purtle, J., dissents.