Simmons v. State
| Decision Date | 16 December 1969 |
| Docket Number | No. 160,160 |
| Citation | 8 Md.App. 355,259 A.2d 814 |
| Parties | Patrick Alan SIMMONS v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Robert A. DiCicco, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., and Clewell Howell, Jr., State's Atty., and Asst. State's Atty. for Baltimore County, respectively, on brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
We find it clear that the opinions of the Court of Appeals have established that the defense of entrapment is available to criminal defendants in this jurisdiction. In Baxter v. State, 223 Md. 495, 499, 165 A.2d 469, the Court said:
'The law in this State with respect to the defense of entrapment was restated in Ferraro v. State, 200 Md. 274, at page 279, 89 A.2d 628, at page 630 (1952), (by quoting from Callahan v. State, 163 Md. 298, 301, 162 A. 856 (1932)) in this manner:
'It is not objectionable for an officer of the law to lay a trap or unite with others to detect The rationale of making the defense available to an accused is 'not in the view that the accused though guilty may go free, but the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct.' Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 216, 77 L.Ed. 413. Or as the Court said in Sherman v. United States, 356 U.S. 369, at 372, 78 S.Ct. 819, at 820, 2 L.Ed.2d 848:
an offender. The only effect would be to justify a more careful scrutiny of the evidence. Where the crime is not against the person nor the property of the instigator, 1 it is not clear how, in the absence of special circumstances, the commission of a crime at the solicitation or procurement of another, although an officer of the law, makes the culprit any less guilty than if the criminal design had originated with the wrongdoer himself."
'The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include Application of the law as stated in Ferraro is not without difficulties. It requires consideration of the phrase 'in the absence of special circumstances.' We believe the 'special circumstances' refers to the circumstances surrounding the 'solicitation or procurement' of the accused, that is the inducement to commit the crime. It has been held that where there was 'no repeated and persistent solicitation of a previously law abiding citizen in order to overcome his reluctance to commit a crime' there was no entrapment as this 'was only the permissible offering of an opportunity to a known offender to exercise his predisposition to violate the law.' Stewart v. State, 232 Md. 318, 193 A.2d 40; Snead v. State, 234 Md. 63, 64, 197 A.2d 920. Where the illegal transaction originated with the accused and not the enforcement authorities there was no entrapment. Pointer v. State, 239 Md. 641, 212 A.2d 260; Cross v. State, 235 Md. 377, 201 A.2d 767. In Lane v. State, 226 Md. 81, 172 A.2d 400, that the police laid not one but three separate traps for the accused was not deemed to be entrapment, the Court stating 'that the conduct of the officers * * * had an appropriate objective of uncovering criminal design, and was permitted police activity, often employed and frequently essential to the effective enforcement of the law.' At 88, 172 A.2d at 403. This Court in disposing of the contention of entrapment has simply There opinions, while lending some guidance, do not provide the full answer to questions presented when the defense of entrapment is raised. Determined in effect on findings from the particular circumstances of each case that 'special circumstances' were absent, they do not enunciate a test for the application of the Ferraro rule and we think it fair to say that the trial courts, prosecutors and defendants are not without some confusion with respect to the matter. It appears that the Court of Appeals has expressly not adopted either of the two divergent views regarding entrapment. In Ferraro it discussed at length the divergent views in the majority and concurring opinions in Sorrells but concluded: 'We do not find it necessary to decide which, if any, of the divergent views of the defense of entrapment is law in Maryland.' 200 Md. at 281, 89 A.2d at 631. And see Baxter v. State, supra, at 499-500, 165 A.2d 469, quoting Ferraro. We feel it advisable now to adopt a test for the application of the rule regarding the defense of entrapment. We believe that the view the majority opinions of Sherman v. United States, Supra, and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 is the better one, and adopt it. We note that in Sherman, the Court said, 356 U.S. at 372, 78 S.Ct. at 820: 'The intervening years have in no way detracted from the principles underlying (the Sorrells) decision.' We think, at the least, the opinions of the Court of Appeals do not preclude its adoption.
the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind [259 A.2d 817] of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' (Sorrells v. United States), 287 U.S. at page 442, 53 S.Ct. at page 212. Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search.' applied the rule as stated in Ferraro, by finding no special circumstances existent. 2
We construe the opinion of the Court in Sorrells as enunciating what has been termed the 'origin of interest' test. 3 This test was stated in substance by Judge
Learned Hand in United States v. Sherman, 200 F.2d 880 (2d Cir. 1952). Probing the aspect of inducement he concluded that in Sorrells 'all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed.' At 882. 4 Inducement was further explained in Sherman man v. United States, 356 U.S. 369, at 372, 78 S.Ct. 819, at 821
But the inducement should not per se be an absolute bar to criminal liability, unanswerable by the State. If it were, law enforcement would founder in cases, for example, involving secret transactions where informers are used. 5 Resolving this problem in the light of Sorrells, Judge Hand said '* * * (I)t is a valid reply to the defense, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense charged, whenever the opportunity offered. In that event the inducement which brought about the actual offence was no more then one instance of the kind of conduct in which the accused was prepared to engage; and the proseution has not seduced an innocent person, but has only provided the means for the accused to realize his pre-existing purpose. * * *
Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.'
The principles by which these questions of fact are to be determined by the courts were outlined in Sorrells. See 287 U.S. at 451, 53 S.Ct. 210. As stated in Sherman, 356 U.S. at 373, 78 S.Ct. at 821, they are:
'On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an 'appropriate and searching inquiry into his own conduct and predisposition' as bearing on his claim of innocence.'
Once the accused has met his burden by establishing that the police induced him to commit the offense charged, it does not necessarily follow that the State, to meet its burden of showing that the accused had a predisposition to commit the offense, must show that the police prior to the inducement, had a 'reasonable suspicion' that the accused was engaged in the commission of a crime or was
about to be. It is clear that if the original suggestions or initiative had come from the accused this would not be necessary. See Cornelius, The Law of Search and Seizure (2d Ed.) § 75, p. 256. But contrary to Cornelius, who was not discussing the point in the frame of reference of the test we have here adopted, even if
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