David Morrow v. Commonwealth of Kentucky
2007-SC-000505-DG June 25, 2009
Opinion by Justice Scott. All sitting; all concur.
Morrow was convicted of drug trafficking—on appeal he argued the trial court erred by refusing to give a jury instruction on entrapment. The Commonwealth had opposed granting such an instruction because Morrow’s alternative defense theory was that he was a participant in an “independent drug investigation” scheme and had, in fact, been trying to set up a police informant when he was arrested. The Court of Appeals affirmed, holding that allowing a defendant to argue two defenses that cannot both be true amounted to courtsanctioned perjury. The Supreme Court reversed and remanded for a new trial, adopting the U.S. Supreme Court’s rule from Mathews that a defendant may properly deny one or more elements of a criminal offense and alternatively claim the 8 affirmative defense of entrapment if sufficient evidence is introduced at trial to warrant instructing the jury as to the defense.