State v. Lampone, 42723
| Decision Date | 15 January 1980 |
| Docket Number | No. 42723,42723 |
| Parties | STATE of Nebraska, Appellee, v. Frank Anthony LAMPONE, Jr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Entrapment. Where a person has no previous intent or purpose to violate the law, but does so only because he is induced to commit the act by law enforcement officers or agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer or agent provides a favorable opportunity for the violation does not constitute entrapment.
2. Criminal Law: Entrapment: Instructions. Ordinarily where the defense of entrapment is properly raised and an entrapment instruction is given by the trial court, the instruction should be in the form of NJI 14.34, although the names of law enforcement officers or agents may be added or other pertinent alterations made where appropriate.
S. J. Albracht of Lathrop, Albracht & Swenson, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Jerold V. Fennell, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
Defendant was charged on two counts of delivery of a controlled substance. He was found guilty by a jury on both counts and sentenced to 2 years probation on each count, the sentences to run concurrently.
By stipulation the defendant admitted that he delivered the controlled substances involved in counts I and II at the times and places alleged, but denied the delivery was made knowingly and intentionally, and raised the defense of entrapment.
The evidence for the State established that on June 13, 1978, the defendant offered to sell pills to Richard Fay, gave him one pill to try, and told Fay that he would stop at Fay's house that evening. That evening the defendant came to Fay's house, brought several hundred pills with him, and asked Fay to try some. Defendant told Fay the prices for various pills, told him to see if anyone was interested in buying them, and left the pills with Fay.
The next day Fay returned the pills to defendant and told him that Fay thought the pills had been stolen from a local drugstore. Defendant admitted they had been and took them back. Sometime later Officer Nichols of the Norfolk city police department, who was investigating a drugstore burglary, was advised by Fay that Fay believed the defendant had some of the stolen drugs that Officer Nichols was searching for.
On June 16, 1978, Officer Nichols asked Fay to make arrangements for an undercover agent to be introduced to the defendant to make a drug buy from him. Fay was to receive $100 if the defendant made a sale to the undercover agent.
On the evening of June 16, 1978, Fay went to defendant's house, told the defendant he had a friend who was interested in the pills, and told the defendant that it was safe. Officer Fosmer, an undercover agent of the Nebraska State Patrol, arrived at the defendant's house driving an unmarked car. Fay introduced the undercover agent to the defendant and the defendant suggested that they drive to a place out of town. The defendant and Fay drove in the defendant's van and the undercover agent followed in his car. They parked off a gravel road. The undercover agent got into the back of defendant's van with the defendant. Fay stayed in the front seat and took no part in the negotiations. The defendant showed Officer Fosmer pills, discussed prices, and sold him packets of capsules and tablets for $150. Fosmer gave defendant three $50 bills. Fosmer left and the defendant gave Fay $40. Later Fay received the $100 agreed upon from the officer.
The State's evidence as to the facts and circumstances surrounding the sale of drugs by the defendant on June 16, 1978, is uncontradicted. The defendant attacked the credibility of the State's witnesses on cross-examination, but the defendant did not testify.
The jury found the defendant guilty on both counts and he was sentenced to 2 years probation.
Defendant complains that the District Court failed to give the standard jury instruction on...
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