entrapment defense in Kentucky

2022“A defendant may assert an entrapment defense, which if successful would exonerate him from criminal liability, if he was induced by police or their agent to commit a crime for which he was not otherwise predisposed to commit.” Dillman v. Commonwealth, 257 S.W.3d 126, 129 (Ky. App. 2008) (emphasis added) (citing Johnson v. Commonwealth, 554 S.W.2d 401, 402 (Ky. App. 1977)).

2008Johnson v. Commonwealth, 554 S.W.2d 401, 402 (Ky.App.1977).

2021Criminal defendants are not required to testify to avail themselves of the entrapment defense (see Wyatt v. Commonwealth, 219 S.W.3d 751, 756 (Ky. 2007), but nonetheless there must be some evidence to support the instruction. “[A] criminal defendant may properly deny one or more elements of a criminal offense and alternatively claim the affirmative defense of entrapment if sufficient evidence is introduced at trial to warrant instructing the jury as to the defense.” Morrow v. Commonwealth, 286 S.W.3d 206, 213 (Ky. 2009).

2010The defendant need not testify in order to invoke the entrapment defense (Saxton did not testify *302 in this case) but there must be sufficient other evidence of record to justify an instruction on entrapment, Wyatt, supra or, in this case, evidence of “probative force” to justify the directed verdict of acquittal under KRS 500.070(1) to which Saxton claims he was entitled.

2009In Matheius, the United States government argued that a criminal defendant should not be allowed to both deny an offense and alternatively rely on an entrapment defense “[bjecause entrapment presupposes commission of a crime.” Id. at 63 , 108 S.Ct. 883 (citing United States v. Russell, 411 U.S. 423, 435 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973)).

2009In Matheius, the United States government argued that a criminal defendant should not be allowed to both deny an offense and alternatively rely on an entrapment defense “[bjecause entrapment presupposes commission of a crime.” Id. at 63 , 108 S.Ct. 883 (citing United States v. Russell, 411 U.S. 423, 435 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973)).

2023Jackson v. Commonwealth, 363 S.W.3d 11, 15-16 (Ky. 2012).

2022“A defendant may assert an entrapment defense, which if successful would exonerate him from criminal liability, if he was induced by police or their agent to commit a crime for which he was not otherwise predisposed to commit.” Dillman v. Commonwealth, 257 S.W.3d 126, 129 (Ky. App. 2008) (emphasis added) (citing Johnson v. Commonwealth, 554 S.W.2d 401, 402 (Ky. App. 1977)).

2021Criminal defendants are not required to testify to avail themselves of the entrapment defense (see Wyatt v. Commonwealth, 219 S.W.3d 751, 756 (Ky. 2007), but nonetheless there must be some evidence to support the instruction. “[A] criminal defendant may properly deny one or more elements of a criminal offense and alternatively claim the affirmative defense of entrapment if sufficient evidence is introduced at trial to warrant instructing the jury as to the defense.” Morrow v. Commonwealth, 286 S.W.3d 206, 213 (Ky. 2009).

2021Criminal defendants are not required to testify to avail themselves of the entrapment defense (see Wyatt v. Commonwealth, 219 S.W.3d 751, 756 (Ky. 2007), but nonetheless there must be some evidence to support the instruction. “[A] criminal defendant may properly deny one or more elements of a criminal offense and alternatively claim the affirmative defense of entrapment if sufficient evidence is introduced at trial to warrant instructing the jury as to the defense.” Morrow v. Commonwealth, 286 S.W.3d 206, 213 (Ky. 2009).

2013As we stated in Pate v. Commonwealth, “CR 50.01 requires that a directed verdict motion ‘state the specific grounds therefor[,]’ and Kentucky appellate courts have steadfastly held that failure to do so will foreclose appellate review of the trial court’s denial of the directed verdict motion.” 134 S.W.3d 593, 597-98 (Ky.2004).

2009Mathews unequivocally held that “when the defendant denied one or more elements of the offense, the defendant is still entitled to an entrapment instruction whenever sufficient evidence exists from which a reasonable jury could find entrapment.” United States v. Walther, 867 F.2d 1334, 1339 (11th Cir.1989) *213 (considering the retroactive applicability of Mathews for purposes of permitting alternate defenses).

2009Id. at 65, 108 S.Ct. 883 (citing United States v. Demma, 523 F.2d 981, 985 (9th Cir.1975)).

2003See United States v. Mendoza-Prado, 314 F.3d 1099, 1103 (9th Cir.2002) (noting that an entrapment defense makes character such an “essential element” because it requires the government to prove that "the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”).