By John Lyon
Arkansas News Bureau
LITTLE ROCK — A divided state Supreme Court today abolished its long-held rule that a defendant cannot claim entrapment while also claiming innocence.
In a 4-3 decision, the court overturned David Smoak’s conviction of Internet stalking of a child, saying Smoak should not have been forced to choose during his trial between claiming he was innocent and arguing that Van Buren police entrapped him.
The high court sent the case back to Crawford County Circuit Court for a new trial.
Smoak was sentenced to eight years in prison, with two years suspended. Prosecutors said Smoak attempted to solicit sex from a person he met in an online chat room whom he believed to be a 15-year-old girl named Amanda Moore. In fact, “Amanda Moore” was Van Buren police Det. Donald Eversole.
Smoak, now 31, was 28 when he chatted online with “Amanda.” When told she was 15, he said, “free trip to jail lol,” according to police.
During their conversation, Smoak offered to bring chicken nuggets to “Amanda,” and she replied, “i don’t want you to drive all the way just to give me chicken nuggets.” Smoak said that “i would give u more than dinner but u got to say you want it.”
“Amanda” said she did not want to get pregnant and asked Smoak if he had condoms. He responded, “yep.” He then went to an address he was given, where police arrested him and found condoms in his vehicle.
Smoak’s trial attorney argued that he was innocent of the stalking charge. The attorney also said during opening statements that Eversole solicited and induced Smoak, which drew an objection from the state.
Circuit Judge Gary Cottrell said Smoak had to choose between denying the crime and claiming entrapment, and Smoak chose to deny the crime. The jury was instructed not to consider entrapment as a defense.
Under Arkansas law, entrapment occurs “when a law enforcement officer or any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or any other means likely to cause a normally law-abiding person to commit the offense.”
The U.S. Supreme Court ruled in 1988 in Mathews v. U.S. that a federal criminal defendant can deny elements of a crime while also raising the defense of entrapment. The Arkansas Supreme Court acknowledged in its majority opinion Thursday that it has declined previously to adopt “the Mathews rule.”
Chief Justice Jim Hannah wrote in the opinion that former Arkansas Supreme Court Justice David Newbern dissented from a previous ruling rejecting the Mathews rule. In his minority opinion in that 1992 case, Young v. Arkansas, Newbern said a defendant who may have been entrapped should not be forced to admit guilt and so be prevented from requiring the state to prove its case against him.
Hannah wrote in today’s opinion, “We are persuaded that the purpose of the entrapment statute cannot be served when a defendant is required to admit all the elements of the crime, and we agree with the reasoning of Justice Newbern’s dissent in Young. Accordingly, we abolish the rule that a defendant cannot deny the commission of an offense and simultaneously assert the defense of entrapment.”
Justices Robert Brown, Paul Danielson and Courtney Goodson joined in the majority opinion.
In a dissenting opinion, Justice Donald Corbin said he would have upheld Smoak’s conviction because his attorney never proffered a jury instruction about entrapment. Despite the judge’s statements, the attorney had to proffer an instruction for the issue to be preserved for appeal, Corbin said.
Justice Karen Baker wrote in a separate dissenting opinion that she would have upheld the conviction because, given the ample evidence of Smoak’s guilt, any error regarding the entrapment defense was harmless.
Justice Jim Gunter concurred with both dissenting opinions.
