State v. Campbell, No. 5941

• Citation: 265 A.2d 11,110 N.H. 238
• Decision Date: 30 April 1970
• Docket Number: No. 5941
• Parties: The STATE of New Hampshire v. James CAMPBELL.
• Court: Supreme Court of New Hampshire

Page 11

265 A.2d 11

110 N.H. 238

The STATE of New Hampshire v. James CAMPBELL.

No. 5941.

Supreme Court of New Hampshire.

April 30, 1970.

William F. Cann, Deputy Atty. Gen., Thomas B. Wingate, Asst. Atty. Gen., Donald Stever, Attorney for the State.

Harkaway, Gall & Shapiro, Aaron A. Harkaway, Nashua, for defendant.

GRIFFITH, Justice.

The defendant in this case was convicted of four separate sales of narcotic drugs. A sale of marijuana and one of LSD on November 7, 1968, and sales of marijuana on November 16, 1968 and November 23, 1968. Defendant's exceptions were reserved and transferred by the Trial Court, Keller, J.

The defendant relies upon two exceptions here. First, he argues that he was entitled to an acquittal because it must be found as a matter of law that he was entrapped and second that RSA 318.A:21 is unconstitutional in that it provides for a mandatory sentence and forbids the Trial Court to suspend any part of the sentence.

Two state troopers, who were acting as undercover agents, testified that they first went to the trailer of the defendant in Salem on the night of November 6, 1968. The troopers were dressed in dungarees and shirts and both had long hair and beards. They stated that they approached the defendant on information from the Salem police that he was suspected of selling narcotics. Upon admission to the trailer they told the defendant that they had been told by a man named Silver in Lowell that they could obtain marijuana from the defendant. The defendant stated that he did not have any but offered to take them to Lowell where he said they could obtain some. When they told him that they preferred to take delivery in New Hampshire he agreed to get some and to also attempt to get some LSD. Because they were unknown to the defendant, it was finally agreed that they would make a deposit of ten dollars on the purchase. The next night they returned and the defendant sold them two ounces of marijuana and four LSD tablets for a total purchase price of fifty-two dollars.

The troopers testified that the defendant gave them his telephone number so that they could call in future orders and that the deliveries of November 16 and November 23 were as a result of telephone orders. They further testified that they were in the trailer some fifteen or twenty minutes the first visit, that on the second visit the defendant gave them some amphetamine tablets to try, and that on the final delivery of November 23 he produced double the amount of marijuana they had ordered and suggested they take the excess amount to sell. The defendant was arrested at the time of the delivery of the final order on November 23. The troopers testified that they did not know whether or not the defendant made any profit on the sales.

The defendant's wife was present during each visit of the officers to the trailer. Her testimony and that of the defendant differed from the officers in some respects. Defendant and his wife testified that the officers were at the trailer about an hour on the first visit and that they appealed to the defendant to obtain drugs on the basis for their mutual friendship with Silver. That the defendant offered to tell them where to go in Lowell but they expressed fear of the Lowell police and the defendant reluctantly and after considerable urging agreed to obtain the drugs for them as a favor to his friend Silver. The defendant stated that he made no profit on any of the sales. He further testified that he did not give them the amphetamine pills but that they took them without his knowledge. He testified that the pills were diet pills he took and had obtained from a doctor.

The Trial Court without objection by the defendant submitted the issue of entrapment of the jury. The defendant does not object to the instructions as given but claims that on these facts the Trial Court should have dismissed the prosecution.

The defense of entrapment is a twentieth century American doctrine which probably evolved as a result of the increasing use of informers and undercover agents in the detection of crimes particularly in the liquor and narcotics field. See Annot. 55 A.L.R.2d 1322; Annot. 33 A.L.R.2d 883. Courts were shocked by cases in which the crime appeared to be created by the very officers charged with preventing crime. See Woo Wai v. United States, 9 Cir., 223 F. 412; State v. Neely, 90 Mont. 199, 300 P. 561. The rule was judicially created to prevent the conviction of innocent persons enticed by government agents to commit a crime for the agents to prosecute. Mikell, The Doctrine of Entrapment in the Federal Courts, 90 U.Pa.L.Rev. 245. Various reasons have been assigned for the defense. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. Learned Hand expressed it thus: '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.' United States v. Becker, 2 Cir., 62 F.2d 1007, 1009.

Whatever the basis for the rule it has been almost universally accepted and it appears that except for Tennessee all states have now adopted it either by court decision or by statute. See 45 Texas L.Rev. 578. Annot. 55 A.L.R.2d 1322; Annot. 33 A.L.R.2d 883, supra. The possibility that denial of the defense might constitute denial of due process has not been foreclosed. See United States ex rel. Hall v. Illinois, 7 Cir., 329 F.2d 354, Comment 1964 U. of Ill.L.Forum 821.

The defense of entrapment was first recognized in this state in State v. Del Bianco, 96 N.H. 436, 78 A.2d 519 and is referred to as 'well-recognized' in State v. Groulx, 106 N.H. 44, 46, 203 A.2d 641. The later case points out that the doctrine 'has been the subject of much confusion and that the definition, formulation and application of the doctrine may not be completely settled at this date.' Chief Justice Kenison authored both of the above opinions and was Chairman of the Commission for the Revision of the Criminal Laws. Their report filed in April 1969 recommended the following statutory provision: '571:5 Entrapment. It is an affirmative defense that the actor committed the offense because he was induced or encouraged to do so by a law enforcement official or by a person acting in cooperation with a law enforcement official, for the purpose of obtaining evidence against him and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a...