State v. Matheson

Decision Date02 September 1976
Citation363 A.2d 716
PartiesSTATE of Maine v. Tom MATHESON.
CourtMaine Supreme Court

David M. Cox, Dist. Atty., Eugene W. Beaulieu, Asst. Dist. Atty., Bangor, for plaintiff.

Jerome B. Goldsmith, Bangor, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE *, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

With the marked increase in the number of prosecutions had for alleged violations of various 'drug' statutes, the 'entrapment' issue is being raised with increasing frequency. Occasion for the raising of this issue results naturally from the fact that the technique most commonly employed in the detection of violations of these statutes is the use of undercover agents of the State and purchases by such agents of drugs from the person thereafter indicated and charged with illegal sale of drugs.

This case now before us raises such issue and provides us with occasion to discuss entrapment in the special context in which we have described it as a 'defense.' State v. Calanti, 142 Me. 59, 46 A.2d 412 (1946) (emphasis supplied).

This appeal results from the denial of appellant's motion for acquittal on charges of selling LSD-25 (D-lysergic acid diethylamide). 22 M.R.S.A. § 2212-C.

We deny the appeal.

At trial it was stipulated that the transaction here under discussion constituted a 'sale' within the meaning of 22 M.R.S.A. § 2212-C. The sole issue presented at trial and now is whether or not under the evidence in this case the appellant ought to be freed from criminal responsibility for the sale by reason of the government activity surrounding the sale.

The factual framework in which the issue arises is substantially as follows. Appellant and Harold Smith became acquainted when both were confined at the Boys Training Center in South Portland. Both were released from such confinement. Smith became a police informer.

On August 22, 1974, Smith, in company with Dennis Dyer, a police undercover agent, approached the appellant in a Bangor restaturant and asked him if he knew where they could purchase some drugs. The appellant replied that he thought they could buy some brown mescaline if a certain individual was at a specified location. The appellant, Smith, Dyer, and a fourth person identified as Sam Gray, then proceeded to the place designated by the appellant. The appellant got out of the car and approached an individual who was standing by a fountain. A brief conversation ensued, following which appellant returned to the car and informed its occupants that he could purchase 'five hits of mescaline' for ten dollars. Agent Dyer supplied the appellant with ten dollars, and appellant again approached the man at the fountain. An exchange took place, after which the appellant returned to the car and handed five small pellets to Dyer. Upon subsequent analysis the pellets were identified as D-lysergic acid diethylamide (LSD-25).

At trial the appellant took the stand and testified in his own behalf. He said that he and Smith were the best of friends; that Smith had asked him if he would help him purchase drugs on several occasions but that he had always refused; that on the day of the purchase he only agreed to help Smith buy the drugs because Smith was such a good friend and because Smith had asked him to buy drugs so many times that he 'was just getting sick of it . . . it was almost embarrassing.' He further testified that it was Sam Gray who had suggested there might be a person willing to sell mescaline at the fountain and that he, appellant, made no money from the transaction.

Appellant maintains that his testimony was sufficient to raise the issue of whether or not he was induced to participate in the drug sale under such circumstances as to constitute entrapment. Once that issue was raised or generated by the appellant, the burden, he says, became on the State to demonstrate by means of evidence that beyond a reasonable doubt he was predisposed to act illegally. 1

Appellant contends that the only evidence of prejudisposition in the case was the testimony concerning prior involvement with drugs. This evidence, he says, was inadequate in itself to establish predisposition.

In Kadis v. United States, 373 F.2d 370 (1st Cir. 1967), Chief Judge Aldrich, speaking for that court, said:

'The doctrine of entrapment as developed by the courts is far from simple, and had led to a number of misunderstandings.' Id., at 372.

The truth of that statement is evident from a reading of the conflicting views of the majority and the dissenters in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

As the First Circuit in Kadis pointed up, by quoting from the majority opinion of Mr. Chief Justice Hughes in Sorrells, supra:

"The question whether it (entrapment) precludes prosecution or affords a ground of defense, and if so, upon what theory, has given rise to conflicting opinions." Kadis, supra, at 372, quoting Sorrells, supra, 287 U.S. at 441, 53 S.Ct. 210.

The Kadis court continued:

'Unhappily, this statement is no less true today. We believe that one reason for the confusion is that there may not be general agreement about 'the true ends to be pursued. " Kadis, supra at 372, quoting Sherman, supra, 356 U.S. at 379, 78 S.Ct. 819 (Frankfurter, J., concurring).

Recently, in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Supreme Court of the United States settled the question about 'the true ends to be pursued' when it adopted the 'subjective' approach to the defense of entrapment and focused on the conduct and propensities of the defendant. The jury, the Supreme Court said, must determine, as a question of fact, the defendant's predisposition to the crime. Reaffirming the principle set forth in Sorrells, supra, and Sherman, supra, the Court stated 'that the entrapment defense 'focus(es) on the intent or predisposition of the defendant to commit the crime' rather than upon the conduct of the Government's agents.' Hampton, supra, at 488, 96 S.Ct. at 1649, quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366, 371 (1973). The Hampton Court emphasized that when the defendant's predisposition is established, governmental misconduct can never be the basis of an entrapment defense. Hampton, supra, 425 U.S. 484, 96 S.Ct. 1646.

The Hampton Court then continued:

'In holding that 'it is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play,' 411 U.S. at 436, 93 S.Ct 1637 at 1645, 36 L.Ed.2d at 376, we of course rejected the contrary view of the dissents in that case and the concurrences in Sorrells, and Sherman.' Hampton, supra, at 488, 96 S.Ct. at 1649.

It seems clear then that at least since Hampton 'the true ends to be pursued' are to prevent the conviction of one charged with crime when governmental activity has

'implant(ed) in the mind of an innocent person the disposition to commit the alleged offense and induce(d) its commission, . . ..' Sorrells, supra, 287 U.S. at 442, 53 S.Ct. at 212-213.

The Hampton approached in terms of the federal law is in agreement with the principles to which this court has adhered. State v. Gellers, Me., 282 A.2d 173 (1971).

The question which the appellant by this appeal seeks to have us address is, is it the burden of the State to establish that a defendant was predisposed to act illegally when the claim of 'entrapment' is generated by the defendant?

This court has, at least three times since State v. Calanti, supra, had occasion to discuss the doctrine of entrapment. 2 In none of these cases was the issue as to the burden of proof raised. It is true that throughout the opinions in the cases above cited, we continuously and consistently referred to the 'defense of entrapment.' State v. Allen, Me., 292 A.2d 167, 169 (1972); State v. Carvelle, Me., 290 A.2d 190, 192 (1972); State v. Gellers, supra, at 176; State v. Calanti, supra, 142 Me. at 64, 46 A.2d at 414-15.

Maine has traditionally recognized the existence of affirmative defenses in criminal cases. These 'affirmative defenses' are usually made by way of confession and avoidance, i.e., the defendant does not deny doing the acts complained of but raises a reason, usually based on public policy considerations, which bars conviction and punishment notwithstanding that the acts constituting a crime have been established beyond a reasonable doubt.

With respect to these affirmative defenses, this court has traditionally considered that the burden of establishing these facts demonstrating nonculpability is always on the defendant who raises such affirmative 'defense,' and the quantum of proof required is 'fair preponderance.' See State v. Armstrong, Me., 344 A.2d 42 (1975).

Now for the first time the issue with respect to the burden of proof as to 'entrapment' is squarely raised.

In 1970 the Supreme Court of the United States declared in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970):

'Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicity hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' 397 U.S. at 364, 90 S.Ct. at 1073.

Later, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the United States Supreme Court was concerned with the rule which had obtained in Maine for at least 150 years (see Brine v. State, Me., 264 A.2d 530 (1970)) that required a defendant charged with murder to prove that he acted 'in the heat of passion on sudden provocation' in order to reduce a homicide from murder to manslaughter. In that case, the Court applied its In Re Winship rationale and held that even though the presence or...

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