Keaton v. StateKeaton v. State
- Reporters:
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- Before:
- Smith
Appellant Thomas Keaton, Jr., was indicted for two counts of selling marijuana in violation of the Georgia Controlled Substances Act.
The evidеnce introduced at trial showed that on the night of October 14, 1982, Keaton, age seventeen, and friends had congregated at Arly’s, a combination video arcade, pool hall and bar in Carrollton. Keaton was approaсhed by Shirley Dawson, an undercover narcotics agent employed by the Georgia Bureau of Investigation, who inquired if he had any marijuana to sell. Keaton replied that he had no marijuana, but would speak with friends vyho might be able to supply some. Later that evening, Keaton approached Agent Dawson and offered the name of an acquаintance who had marijuana to sell. Dawson asked Keaton to act as a middleman in the purchase, and he аgreed. Dawson gave Keaton $25 and drove him to a nearby residence where he went inside and returned with a bag of marijuana, which he handed to Dawson. One week later, on October 21, a similar transaction involving a second seller оccurred.
At trial Keaton admitted being involved in the drug purchases,
The only question for decision is the correctness of the trial court’s charge on entrapment. In addition tо the standard entrapment charge based on the language of
Keaton argues that the italicized portion of the charge erroneously caused the jury to focus on the subjective state of mind of the police officer, in effect creating a “good faith” exception to the entrapment defense. This argument is well taken. 1
The language of the challenged charge was derived, almost verbatim, from the Court of Appeals’ decision in
Sutton v. State,
59 Ga. App. 198, 200 (200 SE 225) (1938). It was specifically approved in
Rucker v. State,
135 Ga. App. 468 (3) (218 SE2d 146) (1975), and can be found in the book of pattern jury charges for criminal сases prepared by the Council of Superior Court Judges. The trial judge’s use of this charge is, therefore, understandable. It is unfortunate that the dicta from
Sutton
upon which the charge was based is inconsistent with the modern entrapment defense as embodied in
In Georgia, the entrapment defense consists of three distinct ele
Thus it can readily be seen that, while proof of a defendant’s “innocent” state of mind (i.e., non-predisposition) is essential to maintenance of a successful entrapment defense, the state agent’s subjective stаte of mind is irrelevant to the determination of whether the crime was induced by “undue persuasion, incitement, or deceitful means.” The agent’s conduct is to be viewed objectively, and evaluated by the jury in light of the standard of conduct exеrcised by reasonable persons generally. See LaFave and Scott, Criminal Law, § 48, at p. 371 (1972). A contrary view would be inсonsistent with the theory of the entrapment defense, which is to deter government conduct that entices innocent рersons to break the law. See Jones v. State, 101 Ga. App. 851, 863 (115 SE2d 576) (1960). In this case Keaton presented evidence which, if believed by the jury, would have authorized an acquittal based on the entrapment defense. The judge then charged the jury that, if they found that the officer “actfed] in good faith in the honest belief that the defendant [was] engaged in unlawful conduct,” the defense of entrapment was without merit. This part of the charge was erroneous, and it effectively negated Keaton’s main line of defеnse. We cannot say that it is highly probable that this error did not contribute to the verdict of guilty. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). To the extent that Rucker v. State, supra, Sutton v. State, supra, and Cherry v. State, 98 Ga. App. 107 (104 SE2d 694) (1958) are in conflict with the views expressed herein, those decisions are hereby overruled.
Judgment reversed.
All the Justices concur.
Notes
Keaton does not object to the non-italicized portion of the quoted charge, and we find it to be a correct statement of the applicable law.