State v. Folk

• Citation: 278 N.W.2d 410
• Decision Date: 30 April 1979
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mary Ann FOLK, Defendant and Appellant. os. 664, 667.
• Court: North Dakota Supreme Court

Page 410

278 N.W.2d 410

STATE of North Dakota, Plaintiff and Appellee, v. Mary Ann FOLK, Defendant and Appellant.

Cr. Nos. 664, 667.

Supreme Court of North Dakota.

April 30, 1979.

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee.

Mackenzie & Jungroth, Jamestown, for defendant and appellant; argued by William A. Mackenzie, Jamestown.

PEDERSON, Justice.

Although Mary Folk had entered a plea of not guilty, she did not dispute the State's allegation that on two separate occasions she sold controlled substances to special agents of the Attorney General's Drug Enforcement Unit. On May 2, 1978, for $50.00, she sold two quarters of crystal, methamphetamine (§ 19-03.1-07, Schedule II (4)(b), NDCC) to Gerald Kemmet. On May 17, 1978, she sold five bags of marijuana (§ 19-03.1-05, Schedule I (4)(m), NDCC) to Gerald Kemmet and Daniel Smith for $250.00. In spite of Mary's defense of entrapment, the jury returned verdicts of guilty on both charges. On her appeal, Mary claims error in the instructions, in the admission of hearsay evidence, and in limiting impeachment testimony. We find no error. The convictions are affirmed.

From his opening statement, through the trial, and on this appeal, counsel for Mary acknowledges that the burden of proving entrapment is on the defense. This court so held in State v. Pfister, 264 N.W.2d 694 (N.D.1978), and we are not reexamining that issue now. Also, in Pfister it was held that entrapment is a question for the jury (in a jury trial) unless there is no dispute as to the facts or the inferences to be drawn from them. Mary makes no claim now that there was entrapment as a matter of law in this case. ¹ We do not decide whether Mary could have made the entrapment issue a question of law she did not do so. Pfister also concluded that the North Dakota entrapment statute (§ 12.1-05-11, NDCC) adopted the "objective test." This court, in State v. Mees, 272 N.W.2d 284, 288 (N.D.1978), commented that it would be more descriptive to use the phrase "normal law-abiding person test." ² Certainly all "subjectivity" has not been eliminated by the adoption of the "objective" test. When the "focus" is upon the police conduct, there is room for as much subjective, personal-value judgment as when the "focus" is upon a defendant's state of mind.

In the case of State v. Currie, 13 N.D. 655, 102 N.W. 875, 877, 112 Am.St.Rep. 687, 69 L.R.A. 405 (1905), this court said that a "feigned complicity of a detective in the crime should not be a shield to the defendant." Whether the court was judicially adopting entrapment as a defense, ³ or had concluded that there was a common-law entrapment defense, ⁴ or a due-process entrapment constitutional defense ⁵ is of no great concern because we now have a statutory entrapment defense, § 12.1-05-11, NDCC, adopted as § 5, Ch. 116, S.L. 1973.

At trial Kemmet and Smith referred to themselves as undercover narcotics agents. During their investigation, Kemmet and Smith relied upon a "paid confidential informer," apparently retained by the Jamestown Police Department and the Stutsman County Sheriff, but also paid a contingent fee by the State. The informer's name was Ronald Bosco, also known as Bomino Geje. Bosco's function for the police was to establish contact with the drug culture in Jamestown. The "cover" of confidentiality had been "blown" before the trial of this case and before Bosco was called as a defense witness by Mary. Bosco testified concerning his acquaintance with Mary and his efforts to set up the meetings between Mary and the special agents so that they could make the drug purchases from her. Bosco was not cross-examined by the prosecutor.

Entrapment Instructions

Mary voluntarily took the stand to testify in her own behalf. There was no significant difference in Bosco's testimony and in Mary's testimony as to the relationship between them, nor in their descriptions of the nature of the influence exerted by Bosco over Mary. The State produced no conflicting rebuttal testimony. Clearly, there were sufficient facts and inferences present to warrant an instruction to the jury on the defense of entrapment. The following instruction was given:

"Entrapment is an affirmative defense that the defendant was entrapped into committing the offense. Entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. 'Law enforcement agent,' for this purpose includes personnel of federal and local law enforcement agencies as well as state agencies, and any person cooperating with such an agency. You are instructed that the informant, known to the Defendant as Ronald Bosco, was a law enforcement agent as defined above.

"The affirmative defense of entrapment must be proved by the defendant by a preponderance of the evidence. By 'preponderance of the evidence' is meant that such evidence, when considered and compared with that opposed to it, is more persuasive and convinces you that what the defendant seeks to prove is more likely true than not true.

"If the defendant has proved the affirmative defense of entrapment, you should return a verdict of 'Not Guilty.'

"The fact that the defendant may not prove the defense of entrapment does not alter the fact that the prosecution must prove all of the elements of the offense beyond a reasonable doubt before you can find the defendant guilty of the offense."

Mary argues that the words "normally law-abiding persons" which are found in § 12.1-05-11, NDCC, ⁶ should not have been used in the instruction, first of all because "the language is not clear to lay-jurors," and, second, because defendants in narcotic cases who wish to raise the entrapment defense "almost always" have to take the stand and admit to using controlled substances, which opens the door to a "devastating argument" by the prosecutor that the defendant has admitted that she is not a "normally law-abiding person."

Only when examining the theoretical legal nuances and subtleties do the words "normally law-abiding persons" appear to be ambiguous. As in applying the "reasonable-man" yardstick, lawyers and judges appear to encounter more, not less, difficulty than lay jurors. We see no chance that any instruction, no matter how artfully drawn, will prevent lay jurors from "focusing" Some attention to evidence introduced by the defendant herself that relates to her willingness or predisposition to commit the very crime charged. Pfister, supra, stands for the proposition that neither the evidence offered by the prosecutor nor the instructions given by the court should direct the attention of the jurors to a focus upon the defendant's predisposition. The law does not prevent defendants themselves from doing so. Mary's citations of Alaska cases are not persuasive on this question.

In addition to a requested instruction based upon § 12.1-05-11, omitting the phrase "normally law-abiding persons," Mary requested instructions which she extracted from the law proposed by writers of concurring and dissenting opinions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). It must be remembered that in federal courts a requirement to apply objective tests has been rejected.

An instruction on entrapment under present North Dakota law, which would omit reference to "law-abiding persons" when evaluating the "persuasion or other means utilized," might be erroneous. Instructions which fairly inform the jury of the law that must be applied is all that is required. A court need not give instructions in the specific language requested by the defendant. See Wasem v. Laskowski, 274 N.W.2d 219, 226 (N.D.1979), and Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182 (N.D.1973). It was not error for the court to reject the instructions that were requested.

If entrapment under our statute fails to provide an adequate defense in narcotics cases, the remedy lies with the legislature, not with this court. No doubt a meritorious case can be made for the proposition that a defense which diverts the juror's attention away from the defendant and onto the police is designed to benefit a professional criminal, but is a detriment to a beginner who may be gullible to the wiles of a worldly and conniving, confidence-type, undercover agent. Professor Park (see footnote 1, Supra ) says "the hypothetical-person test aids the chronic offender at the expense of the nondisposed novice."

Hearsay Evidence

During the prosecutor's examination of Special Agent Kemmet, the following discussion occurred:

"Q. Would you outline to the Court and to the jury who was all present at that time and the circumstances under which you were introduced to Miss Folk?

"A. On May 2nd at approximately 8:08 p. m. in the evening, the confidential or the informant had contacted me prior to that day and I had arrived that day and we were waiting at his house for Miss Folk to arrive. Approximately 8:08 that evening there was a knock at the door. He answered the door. She came in. He introduced me to her. At that point he left the room and I asked Miss Folk if she still had crystal or methamphetamine for sale and she indicated yes.

"Q. If she still had, why did you ask it in that particular phraseology?

"A. Because the informant had told me that she had been selling.

MR. MACKENZIE: Objection, hearsay.

"THE COURT: Continue as you said excuse me. Just continue on before I interrupted you."

At this point in the trial Mary had not opened the door to the issue of her reputation, predisposition or nondisposition, or past criminal activities. The objection should have been sustained and, if there had been an appropriate request at that time, the answer should have been stricken and there...