WYATT V. COM.
CRIMINAL: Conspiracy; entrapment
PUBLISHED: REVERSING AND REMANDING (LAMBERT)
DATE RENDERED: 4/19/2007
SC held that a defendant need not testify in order to avail himself of the defense of entrapment. If the evidence presented is sufficient to support an entrapment instruction, it is of no consequence that such evidence is introduced during the Commonwealth’s case-in-chief, through direct or cross-examination. Entrapment is an available defense when a defendant "was induced or encouraged to engage in [the criminal] conduct by a public servant or by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and [a]t the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct. In light of the conflicting evidence and inferences arising therefrom, it appears that an issue of fact was presented and that the trial court erred by denying Defendant’s request for an instruction on the defense of entrapment. KRS 505 .010(2)(b) does not disqualify Defendant from the defense of entrapment.
Questions and arguments regarding payment or consideration, while not dispositive, were probative of whether Defendant "encouraged" Special Agent Thielhorn to commit the murders and also relevant to Defendant’s defense that she lacked the requisite intent. However, the trial court effectively disposed of available inferences by informing the jury that payment was not required. As there was only one act of encouragement, Defendant may be convicted of only one act of solicitation.
Note: This case screams for an entrapment instruction given the actions of law enforcement.
Digested by Scott Byrd