The opinion
David Newbern, Justice, dissenting. Every appellate judge is faced from time to time with deciding whether to give up on a point of view previously published and rejected by the majority of the members of the court on which the judge serves. For me, this case presents such an occasion.
In a concurring opinion in Morris v. State, 300 Ark. 340 , 779 S.W.2d 526 (1989), I stated my view that a defendant’s assertion of entrapment and denial should not result in denying consideration of both issues by the trier of fact. I choose to restate it here because I hope that in a future case this Court, as did the United States Supreme Court in Mathews v. United States, 485 U.S. 58 (1988), may recognize the point.
The entire concurring opinion from the Morris case need not be repeated here. I will, however, say again that the federal case, Rodriguez v. United States, 227 F.2d 912 (5th Cir. 1955), which formed the basis of our initial decision, Brown v. State, 248 Ark. 561 , 453 S.W.2d 50 (1970), that entrapment and denial were fatally inconsistent defenses is no longer the law in view of the Mathews case.
While I understand the majority opinion’s reference to stare decisis, which forms one horn of the dilemma expressed at the outset of this opinion, I am troubled by blind adherence. I must point out that in the Morris case the majority did not ignore the logic of the Supreme Court’s decision in the Mathews case because it “applied federal criminal rules of procedure rather than principles of constitutional law.” That, of course, was only a reason we were not bound by the Mathews decision. Our reason for not even getting to the issue in the Morris case — a reason with which I could not then or now quarrel — was that the defendant had not presented a prima facie case of entrapment.
If the defendant’s contention is, as here, that there was a misidentification which led to his being accused of a crime he did not commit, it is not logically improper to instruct the jury on the defense of entrapment. While those theories of defense may be inconsistent, that should not deprive the trier of fact of the opportunity to consider both. A jury could readily decline to believe the accused’s denial but believe the evidence of entrapment. Refusal to allow the defense may thus result in infliction of punishment upon a defendant which should not be inflicted upon one who was entrapped. The result may be that the defendant is punished for a serious crime when his “offense” is only that he sought to require the State to prove its case against him in addition to offering an affirmative defense.
I respectfully dissent.