Grossman v. State, 1015

• Decision Date: 21 July 1969
• Docket Number: No. 1015,1015
• Citation: 457 P.2d 226
• Parties: Gayle GROSSMAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 226

457 P.2d 226

Gayle GROSSMAN, Appellant, v. STATE of Alaska, Appellee.

No. 1015.

Supreme Court of Alaska.

July 21, 1969.

Peter LaBate, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., Russell J. Gallagher, Asst. Dist. Atty., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for appellee.

Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.

OPINION

CONNOR, Justice.

This appeal raises the question of whether the evidence before the court below required a finding of entrapment as a matter of law.

Appellant was indicted for selling morphine to an undercover agent of the Alaska State Police. ¹ She pleaded mot guilty, was tried by a jury, and was convicted and sentenced upon a verdict of guilty. At the close of the prosecution's case, her counsel moved for a judgment of acquittal ² on the ground that the evidence required a finding of entrapment as a matter of law. The motion was denied and the issue of entrapment was submitted to the jury, which found against appellant. Appellant does not question the adequacy of the instructions, nor has she raised any question about the burden of proof concerning entrapment. These and certain other questions concerning the defense of entrapment are not, therefore, before us.

Although some authorities regard the defense of entrapment as a relatively simple concept, ³ outstanding jurists have had difficulty in stating a workable or rational set of rules for its application. The doctrine of entrapment has occupied an identifiable position in our law for over 50 years, ⁴ having evolved from earlier decisions covering unconscionable deceit or activity by the police. ⁵

It is plain enough that the underlying basis of entrapment is found in public policy, as discerned and announced by the courts. As Judge Learned Hand perceptively observed in United States v. Becker, 62 F.2d 1007, 1009 (2d Cir. 1933),

'The whole doctrine derives from a spontaneous moral revulsion against using the powers of government to beguile innocent, though ductile, persons into lapses which they might otherwise resist.'

A similar notion was expressed in Butts v. United States, 273 F. 35, 38 (8th Cir. 1921), where the court said,

'(I)t is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded and lured him to attempt to commit it.'

It is in the attempt to state more precise standards that trouble has been encountered. In Sorrells v United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the majority opinion viewed entrapment as an implied statutory condition that one who has been entrapped shall not be convicted of violating the statute. It held that the defense of entrapment should be treated as a matter of law when the facts are substantially undisputed, but as a question of fact for the jury when the evidence is more conflicting. The court stated that the officers of government may afford opportunities to commit crime, may employ artifice and stratagems to catch persons engaged in criminal enterprise, but they cannot implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. ⁶

The court emphasized that entrapment applies only when the criminal conduct is 'the product of the creative activity' of the government agents. ⁷ It held that the determination in each case should focus on whether the particular defendant was predisposed to commit the crime or was an otherwise innocent person who would not have erred except for the persuasion of the government's agents. This permits a searching inquiry into the conduct and motivations of both the officers and the defendant, including the past conduct of the defendant in committing similar crimes, and the general activities and character of the defendant.

In a separate opinion by Mr. Justice Roberts, who was joined by Brandeis and Stone, JJ., it was urged that entrapment in all cases should be determined by the trial court as a matter of law. He did not regard entrapment as a true defense but as an analogue of the principle in civil actions that the courts will refuse their aid in perpetrating or consummating an illegal scheme. He saw entrapment as based on public policy which protects the purity of government and its processes, and not as an implied statutory condition to be attributed to congressional intent.

Because the effect of the Sorrells decision was to focus inquiry upon the particular mental and character traits of the defendant, it has been labeled by some as a 'subjective' test.

The outlines of the Sorrells approach were stated by Judge Learned Hand in United States v. Becker, 62 F.2d 1007 (2d Cir. 1933). There is little that could be added to his summary to express the state of the law under Sorrells today. In his analysis the inquiry turns on whether the government instigation of a crime is excusable. He observed,

'The only excuses that courts have suggested so far as we can find, are these: an existing course of similar criminal conduct; the accused's already formed design to commit the crime or simnar crimes; his willingness to do so, as evinced by ready complaisance. The decisions are plentiful, but the judges generally content themselves with deciding the case upon the evidence before them; we have been unable to extract from them any definite doctrine, and it seems unprofitable once more to merely catalogue the citations. However, it has been uniformly held that when the accused is continuously engaged in the proscribed conduct, it is permissible to provoke him to a particular violation which will be no more than an instance in a uniform series.' 62 F.2d, at 1008.

The majority opinion in Sorrells was reaffirmed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). But four members of the court, speaking through Mr. Justice Frankfurter, took issue with the majority and with the majority in the Sorrells case. They proposed an objective test of whether the police activity falls below standards of fair and honorable administration of justice. The standards of honorable administration of justice would depend upon the effect of the officer's inducements upon an average person, and not upon the particular defendant in each case. The determination would not be made by the jury. The standards themselves would be evolved gradually in accumulative precedents. The effect would be to check police activity in a manner similar to the exclusionary rules that apply to search and seizure, custodial interrogation, and confessions.

The minority opinion in Sherman dealt with both the policy behind the law of entrapment and the way in which that policy can best be effectuated:

'The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. * * * Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply 'proper standards for the enforcement of the federal criminal law in the federal courts,' McNabb v. United States, 318 U.S. 332, 341, 87 L.Ed. 819, 824, 63 S.Ct. 608, 613 * * *.' 356 U.S., at 380, 78 S.Ct., at 824.

The minority then stated that the better way to further this policy is to focus the determination upon the character of the police conduct rather than upon the defendant's predisposition. To rest the determination on the origin of intent is irrelevant because,

'(I)n every case of this kind the intention that the particular crime be committed originates with the police, and without their inducement the crime would not have occurred.' 356 U.S. at 382, 78 S.Ct., at 825.

The result of that logic is that the inquiry becomes limited to one of predisposition, and the defendant is then put on trial for his past offenses and character. This results in prejudice, especially if the question is presented to a jury. Moreover, the result will differ on whether the defendant has previously committed a crime or has no record.

'Appeals to sympathy, friendship, the possibility of exorbitant gain, and so forth, can no more be tolerated when directed against a past offender than against an ordinary law-abiding citizen. * * * Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modern penology and prison administration strongly counsel against such a view.' 356 U.S., at 383, 78 S.Ct., at 826.

The scholarly examinations of the defense of entrapment have also revealed the inadequacies of the subjective test. ⁸ To speak of entrapment as an implied statutory condition, and then to focus inquiry on the origin of intent, the implanation of criminal design, and the predisposition of the defendant does not make much sense. If entrapment is a substantive condition of guilt, then it ought to apply when private persons induce the commission of an offense. But no court has ever been willing to make such an application of the Sorrells doctrine. An external standard, if it can be achieved, is certainly preferable to a doctrine founded in theoretical riddles.

While this court in Goresen v. State, 432 P.2d 326 (Alaska 1967), applied the Sorrells majority test, it did not consider what...