State v. Pfister

• Decision Date: 30 March 1978
• Docket Number: Cr. 622
• Citation: 264 N.W.2d 694
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Gregory M. PFISTER, Defendant-Appellant.
• Court: North Dakota Supreme Court

Page 694

264 N.W.2d 694

STATE of North Dakota, Plaintiff-Appellee, v. Gregory M. PFISTER, Defendant-Appellant.

Cr. 622.

Supreme Court of North Dakota.

March 30, 1978.

Johnson, Milloy, Johnson, Stokes & Robinson, Wahpeton, for defendant-appellant; argued by Rauleigh D. Robinson, Wahpeton.

Earle R. Myers, Jr., State's Atty., Wahpeton, for plaintiff-appellee.

PAULSON, Justice.

This is an appeal by the defendant, Gregory M. Pfister, from the two judgments of conviction entered by the Richland County District Court upon jury verdicts finding Pfister guilty on two separate charges of delivery of a controlled substance, in violation of § 19-03.1-23(1) of the North Dakota Century Code.

Pfister raised the affirmative defense of entrapment at the trial. Prior to instructing the jury, the trial judge discussed the proposed jury instructions with the parties in the court's chambers. At that time Pfister's attorney made the following specific objection to the court's proposed jury instruction regarding the entrapment defense:

"It is my position what you intend to give here would be wholly contrary to law, in that it is an (sic ) subjective standard and not an objective standard. I would ask that the instruction be changed and give the objective standard rather than the subjective standard." ¹

The trial judge instructed the jury on entrapment, using the court's proposed instruction to which Pfister had objected. The jury returned verdicts of guilty, upon which the trial court entered judgments of conviction and sentenced Pfister to two concurrent terms of two years at the North Dakota State Penitentiary.

On this appeal, Pfister asserts that the trial court's jury instruction on entrapment was erroneous and prejudicial. Pfister requests this court to reverse the judgments of conviction and to grant him a new trial on both charges. Pfister has raised the following issues with regard to his assertion that the trial court's jury instruction on entrapment was erroneous:

1. Whether the proper test of entrapment in North Dakota is the "objective" or the "subjective" test.

2. Whether the State or the defendant has the burden of proof regarding the affirmative defense of entrapment.

3. Whether the issue of entrapment is a question for the judge or the jury.

The United States Supreme Court first recognized the defense of entrapment in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), in which the Court adopted the subjective test of entrapment which focuses on the defendant's predisposition to commit the crime as well as the conduct of the government's agents. Although the Court has continued to follow the Sorrells' subjective test, there is a strong minority view on the Court which advocates the use of an objective test in which the defendant's predisposition to commit the crime is irrelevant to the entrapment defense. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United Sates, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

Justice Stewart's dissent in Russell articulately describes the differences between the subjective and the objective approaches to entrapment, in Russell, supra, 411 U.S. at 440-441, 93 S.Ct. at 1647:

"In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a 'subjective' approach to the defense of entrapment. In that view, the defense is predicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and conviction of persons, 'otherwise innocent,' who have been lured to the commission of the prohibited act through the Government's instigation. Sorrells v. United States, supra, 287 U.S., at 448, 53 S.Ct., at 215. The key phrase in this formulation is 'otherwise innocent,' for the entrapment defense is available under this approach only to those who would not have committed the crime but for the Government's inducements. Thus, the subjective approach focuses on the conduct and propensities of the particular defendant in each individual case: if he is 'otherwise innocent,' he may avail himself of the defense; but if he had the 'predisposition' to commit the crime, or if the 'criminal design' originated with him, then regardless of the nature and extent of the Government's participation there has been no entrapment. Id. at 451, 53 S.Ct., at 216. . . .

"The concurring opinion of Mr. Justice Roberts, joined by Justices Brandeis and Stone, in the Sorrells case, and that of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan, and Brennan, in the Sherman case, took a different view of the entrapment defense. In their concept, the defense is not grounded on some unexpressed intent of Congress to exclude from punishment under its statutes those otherwise innocent persons tempted into crime by the Government, but rather on the belief that 'the methods employed on behalf of the Government to bring about conviction cannot be countenanced.' Sherman v. United States, supra, 356 U.S. at 380, 78 S.Ct. at 824. Thus, the focus of this (objective) approach is not on the propensities and predisposition of a specific defendant, but on 'whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.' Id., at 382, 78 S.Ct. at 825. Phrased another way, the question is whether regardless of the predisposition to crime of the particular defendant involved the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. . . ."

The jury instruction on entrapment, in the instant case, stated the subjective test. ² Pfister objected to this jury instruction on entrapment. He contends on this appeal that the instruction was erroneous because North Dakota has legislatively adopted the objective test of entrapment. We agree.

In 1973, the North Dakota Legislature enacted an entrapment statute, § 12.1-05-11, N.D.C.C., which provides as follows: ³"Entrapment. 1. It is an affirmative defense that the defendant was entrapped into committing the defense.

"2. 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.

"3. In this section 'law enforcement agent' includes personnel of federal and local law enforcement agencies as well as state agencies, and any person cooperating with such an agency."

The language of subsections 1 and 2 of § 12.1-05-11, N.D.C.C., is identical to the language of subsections 1 and 2 of § 702 of the proposed Federal Criminal Code. ⁴ It is therefore helpful, as an aid to interpreting the North Dakota entrapment statute, to look at the commentary of the draftsmen of the proposed Federal Criminal Code. State v. Bourbeau, 250 N.W.2d 259 (N.D.1977).

The Final Report of the National Commission on Reform of Federal Criminal Laws (1971) contains, in relevant part, the following commentary regarding § 702:

"This section, which represents the first federal codification of the judicially-developed defense of entrapment, changes existing federal law in several respects. The defense is treated primarily as a curb upon improper law enforcement techniques, to which the predisposition of the particular defendant is irrelevant.

The Working Papers of the National Commission on Reform of Federal Criminal Laws (1970), pages 303-328, contain the following statements which demonstrate an intent to adopt the objective test of entrapment in the proposed federal entrapment statute:

"These twin elements of inducement and predisposition, when conjoined, form the presently recognized basis for the entrapment defense.

"The proposed statute changes the existing law by giving principal significance to the inducements of the government. Entrapment is continued as a defense to a crime, but the question of the accused's predisposition is removed and the issue is framed rather in the objective terms of whether persons at large who would not otherwise have done so would have been encouraged by the government's actions to engage in crime. The focus of the proposed statute is on the activities of the government and their relation to the reasonable man. (Page 306.)

"The formulation of subsection (2) in proposed section 702 essentially follows the Model Penal Code view, which is that of the minority in Sorrells and Sherman. The language of the Model Penal Code is altered somewhat to insure that an objective standard is employed to determine whether police conduct is sufficiently unsavory to justify an entrapment defense. Needless to say, the accused's penchant for criminality, either on this occasion or in the past, is not to be placed in issue under this proposal, unless such evidence is admissible on some theory other than entrapment." (Page 320.)

Thus, in view of these sources, it appears that the drafters of the proposed federal entrapment statute clearly intended to adopt the objective test of entrapment. ⁵

The case of State v. Mullen, 216 N.W.2d 375 (Iowa 1974), is persuasive authority as an aid in our interpretation of the North Dakota entrapment statute. In Mullen, supra, the Iowa Supreme Court judicially adopted the language of § 702 of the proposed Federal Criminal Code as the standard for the entrapment defense in Iowa. The court interpreted this language as encompassing the objective test.

Pursuant to subsection 2 of § 12.1-05-11, N.D.C.C., entrapment occurs when a law enforcement agent induces the commission of a crime by means likely to cause "normally law-abiding persons" to commit it. Under this statute, entrapment exists when two factors occur: (1) a law enforcement agent induces the commission of a crime; and (2) the method by which the law enforcement agent induces the commission of the crime is...