{ "id": 1678986, "name": "Fred BRASCOMB Jr. v. STATE of Arkansas", "name_abbreviation": "Brascomb v. State", "decision_date": "1977-05-16", "docket_number": "CR 76-231", "first_page": "614", "last_page": "619", "citations": [ { "type": "official", "cite": "261 Ark. 614" }, { "type": "parallel", "cite": "550 S.W.2d 450" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "252 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629829 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0526-01" ] }, { "cite": "242 Ark. 34", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717351 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0034-01" ] }, { "cite": "226 Ark. 921", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725801 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/226/0921-01" ] }, { "cite": "228 Ark. 891", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725100 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/0891-01" ] }, { "cite": "208 Ark. 114", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478618 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/208/0114-01" ] }, { "cite": "113 S.W. 2d 512", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1938, "opinion_index": 0 }, { "cite": "195 Ark. 639", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723310 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ark/195/0639-01" ] }, { "cite": "212 Ark. 718", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470462 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/ark/212/0718-01" ] }, { "cite": "220 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660066 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/220/0129-01" ] }, { "cite": "9 S.W. 851", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1888, "opinion_index": 0 }, { "cite": "51 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720436 ], "year": 1888, "opinion_index": 0, "case_paths": [ "/ark/51/0088-01" ] }, { "cite": "21 S.W. 2d 850", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1929, "opinion_index": 0 }, { "cite": "180 Ark. 363", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393665 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/ark/180/0363-01" ] }, { "cite": "215 S.W. 886", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1920, "opinion_index": 0 }, { "cite": "141 Ark. 11", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1592934 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ark/141/0011-01" ] }, { "cite": "100 S.W. 70", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "82 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529045 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/82/0064-01" ] }, { "cite": "91 S.W. 12", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1906, "opinion_index": 0 }, { "cite": "77 Ark. 141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499054 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/ark/77/0141-01" ] }, { "cite": "287 U.S. 435", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369577 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/us/287/0435-01" ] }, { "cite": "260 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616744 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0473-01" ] }, { "cite": "260 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616744 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/ark/260/0473-01" ] } ], "analysis": { "cardinality": 565, "char_count": 8820, "ocr_confidence": 0.883, "pagerank": { "raw": 1.0523809830199442e-07, "percentile": 0.5542674495694536 }, "sha256": "fc8310a4b523cafe0038ce922aae3e29bcafeffcf4e412d014bbf751ae2b2d8c", "simhash": "1:47a8fb7453709dda", "word_count": 1450 }, "last_updated": "2023-07-14T16:40:25.982646+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., and Fogleman, J., dissent.", "Fogleman, J., joins in this dissent." ], "parties": [ "Fred BRASCOMB Jr. v. STATE of Arkansas" ], "opinions": [ { "text": "Frank Holt, Justice.\nA jury convicted appellant of delivery of heroin (Ark. Stat. Ann. \u00a7 82-2617 (a) (1) (i) [Repl. 1976]) and assessed his punishment at 15 years imprisonment in the Department of Correction. For reversal appellant first contends that \u201cthe court erred in refusing to let the defense introduce evidence of the arrangement of the undercover officer and one Billy Lincoln whereby Lincoln would be compensated for getting people to sell drugs to the undercover officer.\u201d An undercover police officer, Morfey, arranged to buy heroin from appellant through James \u201cJazz-bone\u201d Barnes, who was paid by Morfey for setting up drug buys. Appellant was arrested after two separate sales to Morfey procured by Barnes. Appellant\u2019s defense was entrapment which Morfey denied. However, Morfey agreed that \u201cJames Barnes is not the only person [he, Morfey] had told that [he] would pay them money to bring people to [him] to buy from. ...\u201d Further, \u201cthat if [Barnes] brought Fred Brascomb [appellant] to [Morfey] that according to [Morfey\u2019s] agreement [Barnes] would get this kick back you\u2019re talking about. ...\u201d Appellant attempted to cross-examine Morfey about Billy Lincoln, another drug producer. Morfey admitted knowing him and that he was working for him.\nQ. You never did pay Billy Lincoln to bring people to you?\nA. That was done\u2014\nMr. Fields: Your Honor, I\u2019m going to object to the final question unless defense counsel can show that it is relevant to that.\nMr. Graves: Your Honor, what I\u2019m trying to show is the entire operation or scheme of paying people to set other people up.\nAppellant argues that evidence as to the activities of the state\u2019s witness is permissible as relevant to proving appellant\u2019s defense of entrapment. Entrapment is an affirmative defense. Ark. Crim. Code \u00a7 41-209 (1976). The state responds that any evidence with respect to Morfey and Lincoln is a collateral issue and, therefore, the limitation on cross-examination was proper. We cannot agree. In French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976), the contention was made that a contingent arrangement, which depended upon whether an informer made a case and how many arrests resulted, involved a collateral issue. In rejecting this contention and holding that an arrangement between an undercover agent and his informer was not a collateral issue, we said:\nThe same contention, now made by the State, was argued by the Government in Sorrells v. United States, [287 U.S. 435 (1932)]. In answer to the argument there that the defense of entrapment would lead to \u2018the introduction of issues of a collateral character relating to the activities of the officials of the Government. . .,\u2019 the court there stated: \u2018The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused. . . .\u2019\nHere the defense was entrapment by the activities of a government official and, consequently, we are of tht\u00ed view that evidence sought by the cross-examination of the witness was not a collateral issue. Common justice requires that any evidence pertinent to the controlling issue of the defense, entrapment, should be permitted. Here appellant sought to show the course of conduct or activities utilized by the state\u2019s witness in his undercover operations.\nWe next consider appellant\u2019s contention that the trial court erred in giving instruction No. 5 which defiYied delivery of a controlled substance and then told the jury that if they believed beyond a reasonable doubt that the defendant committed the offense \u201cyou should find the defendant [appellant] guilty. ...\u201d Appellant argues that the instruction, in effect, is binding and prejudicial since it omits his defense of entrapment. The state responds that another instruction, which immediately followed, supplied the omitted defense and no prejudice resulted. It appears that our cases are in conflict on these opposing contentions. Typical cases in support of the state\u2019s position are Clingan v. State, 77 Ark. 141, 91 S.W. 12 (1906); Satterwhite v. State, 82 Ark. 64, 100 S.W. 70 (1907); Slaytor v. State, 141 Ark. 11, 215 S.W. 886 (1920); and Edwards v. State, 180 Ark. 363, 21 S.W. 2d 850 (1929). In the latter case we said:\nAs to the omission of the self-defense plea, the next instruction fully covers the subject, and we do not think the jury could have been misled on either proposition.\nTypical cases in support of appellant\u2019s position are Claiborne v. State, 51 Ark. 88, 9 S.W. 851 (1888); Davis v. Self, 220 Ark. 129, 246 S.W. 2d 426 (1952); Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304 (1948); Vaughn v. Herring, 195 Ark. 639, 113 S.W. 2d 512 (1938); Holmes v. Lee, 208 Ark. 114, 184 S.W. 2d 957 (1945); Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958); Whaley v. Crutchfield, 226 Ark. 921, 294 S.W. 2d 775 (1956); and Miller v. Ballentine, 242 Ark. 34, 411 S.W. 2d 655 (1967). In Miller we said:\nIt is inherently wrong to give an instruction which ignores a material issue in the case and allows the jury to find a verdict without considering the omitted issue. Such error cannot be cured by correct instructions separately given.\nThere we further said: \u201cIt is not unreasonable to believe that the jury gave considerable weight to this instruction.\u201d\nWe have consistently discouraged the giving of a binding instruction \u201cbecause of the impracticability of stating all the various propositions of law involved in one instruction\u201d and courts, \u201cshould wherever possible, avoid the giving of binding instructions.\u201d Moore v. State, 252 Ark. 526, 479 S.W. 2d 857 (1972). Further, it is significant, as we recognized there, that AMI Civil \u201cdoes not contain a binding instruction.\u201d\nIt seems that in civil cases we have consistently disapproved a binding instruction which omitted a material or vital issue. We have not consistently so held in criminal cases. It is difficult to understand the double standard. Certainly it must be said that a jury is as competent and perceptive in criminal cases as in civil cases. We observe that a Supreme Court Committee is presently drafting model instructions for use in criminal cases. No doubt, these model instructions will not contain a binding instruction which, as indicated, was carefully avoided by the Committee which drafted AMI Civil.\nBecause of the inconsistency in our cases with respect to binding instructions, we deem it necessary to hold that after the effective date of this opinion, we will reconsider the disharmony in our cases.\nWe have considered appellant\u2019s two other contentions for reversal and find no merit in them. For the error indicated, the judgment is reversed and the cause remanded.\nReversed and remanded.\nHarris, C.J., and Fogleman, J., dissent.", "type": "majority", "author": "Frank Holt, Justice." }, { "text": "Carleton Harris, Chief Justice,\ndissenting.\nI disagree with the reversal in this case.\nAs to the first point relating to the attempt to interrogate Officer Morfey regarding the arrangements made with an \u201cundercover\u201d helper, Billy Lincoln, I simply point out that Lincoln was not involved in any way with the sale made by appellant Brascomb. Rather, the \u201ccontact man\u201d in this transaction was James \u201cJazzbone\u201d Barnes. Whatever agreement Morfey had with Lincoln was completely collateral to the entrapment issue since appellant admittedly had absolutely no connection or contact with Lincoln. Morfey was questioned fully about his arrangement with Barnes and the officer explained his agreement with Barnes and stated that the latter was paid.\nI cannot see how the case of French v. State, 260 Ark. 473, 541 S.W. 2d 680, has any relevancy whatsoever to the facts in the present litigation. In French, the defendant testified that he was talked into obtaining the marijuana by an agent named Haas working on behalf of the government, and it was contended that Haas was paid by the Drug Enforcement Administration on a contingent fee basis, dependent upon the result in the case and the number of arrests effected. The defense attempted to call a special agent of the government to show the financial arrangement with Haas, which the trial court denied, and this court reversed. Now \u2014 let it be pointed out that French testified that Haas was the individual who talked him into getting the marijuana. Haas accordingly in that case, stood in the same position as \"Jazzbone\u201d Barnes in the present case, but it is not contended, even in the slightest, that Lincoln had anything at all to do with enticing Brascomb into making the heroin sale.\nI would affirm the judgment.\nFogleman, J., joins in this dissent.\nHaas did not testify.", "type": "dissent", "author": "Carleton Harris, Chief Justice," } ], "attorneys": [ "Don Langston and Hubert Graves, for appellant.", "Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Fred BRASCOMB Jr. v. STATE of Arkansas\nCR 76-231\n550 S.W. 2d 450\nOpinion delivered May 16, 1977\n(In Banc)\nDon Langston and Hubert Graves, for appellant.\nBill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee." }, "file_name": "0614-01", "first_page_order": 654, "last_page_order": 659 }