Smith v. State, 671S186

• Decision Date: 01 May 1972
• Docket Number: No. 671S186,671S186
• Citation: 258 Ind. 415,281 N.E.2d 803
• Parties: Carl Lewis SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 803

281 N.E.2d 803

258 Ind. 415

Carl Lewis SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 671S186.

Supreme Court of Indiana.

May 1, 1972.

John R. Brant, II, Richmond, for appellant; Harlan, Schussler & Keller, Richmond, of counsel.

Theodore L. Sendak, Atty. Gen., of Indiana, Michael Schaefer, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was found guilty in a trial by jury on the offense of selling heroin. His motion to correct errors raises the issue of entrapment and the admissibility of contraband into evidence, such objection being predicated upon a break in the chain of possession, citing Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652. The case at bar is easily distinguished from Graham (supra) and we find no merit to Defendant's claim of inadmissibility.

The doctrine of entrapment has been elaborately analyzed in Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 and in Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 and very recently reviewed and properly applied by this Court in Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793. It would serve no useful purpose here to attempt an elaborate dissertation upon the doctrine and the somewhat conflicting theories regarding its application. Chief Justice Arterburn, writing for a unanimous court, in Gray v. State (supra) met a situation almost identical to the one at bar and applied the doctrine as we believe to have been there required and to be required here.

Various reasons have been cited for the development of the defense of entrapment, and consequently the courts have not always been in agreement with respect to the circumstances under which it should apply. There is general accord, however, with the following statement taken from Sorrells v. United States (supra):

'* * * When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.' 287 U.S. at 445, 53 S.Ct. at 214, 77 L.Ed. at 418.

'This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations.' Sherman v. United States (supra), 356 U.S. at 383--384, 78 S.Ct. at 826.

Thus, if the government agents merely hold out an opportunity for the commission of the crime, and the offender takes advantage of that opportunity, he cannot complain of an entrapment, because it cannot be said that the criminal conduct was the product of the agents' creative activity.

'To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.' Sherman v. United States (supra), 356 U.S. at 372, 78 S.Ct. at 821.

The evidence before us is clear and uncontroverted. All of it, in this connection, comes from the agent who participated in the scheme to trap the defendant. The police, through their informer, advised the defendant of an acquaintance who made pornographic moving pictures. Thereafter, Narcotics Agent, John Chmelik, appeared at the request of the local police, and was introduced to Defendant by the informer. The first words spoken at this meeting were by the agent who testified, 'I told Mr. Smith that I had heard that he was interested in being in fornographic (sic) films.' (Tr. p. 130). The conversation for the next several minutes concerned pornographic pictures, prostitutes and narcotics traffic. Precisely what was said by whom cannot be determined from the record, but the defendant indicated that he would like to perform for such pictures, and the agent told him that he would consider him and that he would pay him but that at that time he was working on a location. (Tr. p. 104). The agent then told the defendant that he had some prostitutes working for him in Indianapolis and needed some drugs for them (Tr. p. 105) and asked the defendant if he knew where he could get some narcotics. (Tr. p. 105 and p. 131). Defendant then told the agent that he had a source. (Tr. p. 105). Thereupon, the defendant attempted to contact his 'source' but failed. By arrangement between them, the defendant and the agent met the following day; the 'source' was contacted, and a purchase was made with the defendant ostensibly acting as intermediary.

As said by Chief Justice Arterburn in Gray v. State (supra) 'Here we have no evidence whatever that this appellant, before he was approached by this informant, had been engaged in the sale of heroin or that he had any intent to make a sale before he was asked to do so by a plan of law enforcement officers. * * * If law enforcement officers use a scheme or plan to disclose illegal activities of one charged with a crime, then they must also bring forward evidence to show that that party was not innocently lured and enticed to commit the illegal act.' 249 Ind. at 634, 231 N.E.2d at 796. The burden, then, is clearly upon the State, under such circumstances, to convince the trier of facts, beyond a reasonable doubt, that there was no entrapment. No attempt was made by the State to carry this burden. Not one shred of evidence was produced in this connection, hence the evidence was insufficient, as a matter of law.

There is another closely related but yet somewhat different reason why the judgment should be reversed. The theme emerges in the cases hereinabove cited and was ultimately clearly stated by this Court in Walker v. State (1970), Ind., 262 N.E.2d 641, wherein we permitted the State to introduce hearsay testimony to show 'probable cause,' saying:

'When appellant evoked the defense of entrapment he imposed upon the State the requirement of proving that it had probable cause of suspecting that the appellant was engaged in illegal conduct. (Citing Heath v. United States (10th Cir. 1948) 169 F.2d 1007.)' 262 N.E.2d at 645.

We, therefore, have clearly adopted or embraced a rule of law that before the State sets into operation a scheme to trap a particular suspect, there must be probable cause for the suspicions. We recognize the absolute necessity, under certain circumstances, of permitting police officers to use this method of detecting crimes and apprehending criminal...