State v. Swenson

• Decision Date: 06 July 1984
• Docket Number: No. 83-822,83-822
• Citation: 352 N.W.2d 149,217 Neb. 820
• Parties: STATE of Nebraska, Appellee, v. Frank A. SWENSON, Appellant.
• Court: Nebraska Supreme Court

Page 149

352 N.W.2d 149

217 Neb. 820

STATE of Nebraska, Appellee, v. Frank A. SWENSON, Appellant.

No. 83-822.

Supreme Court of Nebraska.

July 6, 1984.

Syllabus by the Court

1. Entrapment. Entrapment is governmental inducement of one to commit a crime not contemplated by the individual in order to prosecute that individual for commission of a criminal offense.

2. Entrapment: Words and Phrases. Regarding the defense of entrapment, Nebraska has adopted the "origin of intent" test to determine entrapment.

3. Entrapment: Words and Phrases. Under the "origin of intent" test, entrapment consists of two elements: (1) The government has induced the defendant to commit the offense charged, and (2) The defendant's predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense on any propitious opportunity.

4. Entrapment: Pleas. Entrapment is an affirmative defense in a criminal proceeding. The defense of entrapment is raised by and contained in the defendant's plea of not guilty.

5. Entrapment. When a defendant raises the defense of entrapment, the court must determine whether the defendant has presented sufficient evidence to warrant submitting to the jury the issue of entrapment. Therefore, it is the initial duty of the court to determine as a matter of law whether there is sufficient evidence that the government has induced the defendant to commit a crime.

6. Entrapment. In order to submit the defense of entrapment to the jury, a defendant's evidence of entrapment must be "more than a scintilla." To be more than a scintilla, evidence cannot be vague, conjectural, or the mere suspicion about the existence of a fact, but must be real and of such quality as to induce conviction.

7. Entrapment. The lone fact that an undercover police officer, personally or through an informant, offers to purchase or obtain marijuana is not an inducement to commit a crime resulting in the availability of entrapment as a defense for the seller of the marijuana. Inquiry alone is not a lure into criminal activity and does not supply the degree of persuasion necessary for entrapment.

8. Entrapment. In the absence of a governmental inducement to deliver a controlled substance, acts of the accused after delivery of the controlled substance are irrelevant.

Dennis R. Keefe, Lancaster County Public Defender, and Sean J. Brennan, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Mark D. Starr, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

A Lancaster County jury found Frank A. Swenson guilty of knowingly delivering or dispensing a controlled substance, marijuana, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Cum.Supp.1982). The district court sentenced Swenson to 14 months' probation. Swenson appeals, and we affirm.

In the evening of February 16, 1982, a Lincoln undercover police officer and a female confidential informant drove to an arcade, Bogie's Game Room, to make a drug purchase from a specific supplier. The informant went inside the arcade, while the officer waited in the car. In the arcade the informant did not find the prospective supplier but did telephone that supplier. The informant returned to the officer's car and reported that the supplier "would be there within a few minutes, to wait."

While the officer and the informant were awaiting arrival of the supplier, Swenson approached the officer's car and asked whether the officer was "the party looking for a bag" of marijuana. When the officer answered affirmatively to Swenson's inquiry, Swenson went toward the arcade and returned shortly thereafter with a bag of marijuana. The officer gave Swenson $40 in exchange for the marijuana. The officer then told Swenson that he was looking for at least a "quarter of a pound" of marijuana. Swenson again went to the arcade, returned to the officer's car, and said "nothing was available but maybe in a few days." The officer and the informant left Swenson. Sometime later, Swenson was arrested for the sale and delivery of marijuana to the officer.

Swenson testified he was on his way home from the arcade gameroom when he saw the informant sitting in the officer's car. Swenson further testified that he had known the informant for approximately 7 years. The informant waved, and Swenson went to the officer's car. After a short conversation with Swenson about her new hair style, the informant asked Swenson if he could obtain some marijuana for the officer. There was no additional conversation about marijuana involving Swenson. Swenson left the car and later returned with a bag of marijuana. In his testimony Swenson stated that if the informant had not beckoned, he would have gone home from the gameroom and would not have sold the marijuana to the officer.

The trial court refused Swenson's tendered instruction on entrapment. Such refused instruction is the subject of Swenson's first assignment of error.

Entrapment is governmental inducement of one to commit a crime not contemplated by the individual in order to prosecute that individual for commission of a criminal offense. See, State v. Braun, 31 N.C.App. 101, 228 S.E.2d 466 (1976); Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969).

Entrapment occurs when the criminal intent or design originates with governmental officials who implant in the mind of an innocent person the disposition to commit a criminal offense and induce criminal conduct in order to prosecute the criminal offense so induced. See, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); State v. Hochman, 2 Wis.2d 410, 86 N.W.2d 446 (1957); United States v. Wolffs, 594 F.2d 77 (5th Cir.1979).

However, entrapment is condemned on account of some misuse of power or impropriety by the state charged with protecting against, not promoting, criminal activity. By injecting a criminal intent where none existed in an individual, the state becomes an instigator of and an accomplice in the activity prohibited by the state's criminal code. In such cases the real culprit is the state rather than the individual accused of violating state law. Our jurisprudence denounces prosecution produced by governmental origination of the very activity to be prevented by law enforcement. As expressed by Justice Holmes in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissenting): "[F]or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part."

After Sorrells the U.S. Supreme Court held in Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958): "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." The test evolving from Sorrells and Sherman is the "origin of intent" test to determine entrapment. See, Hawthorne v. State, 43 Wis.2d 82, 168 N.W.2d 85 (1969); State v. Nelsen, 89 S.D. 1, 228 N.W.2d 143 (1975). Nebraska has adopted the "origin of intent" test for entrapment. In State v. Lampone, 205 Neb. 325, 328, 287 N.W.2d 442, 444 (1980), we held: "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." See, also, State v. Smith, 187 Neb. 511, 192 N.W.2d 158 (1971); State v. Ransburg, 181 Neb. 352, 148 N.W.2d 324 (1967).

Under the "origin of intent" test, entrapment consists of two elements: (1) The government has induced the defendant to commit the offense charged; and (2) The defendant's predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense on any propitious opportunity. See, United States v. Glassel, 488 F.2d 143 (9th Cir.1973); United States v. Glaeser, 550 F.2d 483 (9th Cir.1977). In the "origin of intent" test the ultimate focus is on the defendant's predisposition to commit the crime for which the government prosecutes. See, United States v. Principe, 482 F.2d 60 (1st Cir.1973); United States v. Glaeser, supra.

Entrapment is an affirmative defense in a criminal proceeding. See, State v. Braun, supra; State v. Hsie, 36 Ohio App.2d 99, 303 N.E.2d 89 (1973); People v. McGee, 49 N.Y.2d 48, 399 N.E.2d 1177, 424 N.Y.S.2d 157 (1979); cf. State v. Ransburg, supra (entrapment is "in the nature of an affirmative defense"). The defense of entrapment is raised by and contained in the defendant's plea of not guilty. See, Sorrells v. United States, supra; State v. Hsie, supra; State v. Nelsen, supra.

When a defendant raises the defense of entrapment, the court must determine whether the defendant has presented sufficient evidence to warrant submitting to the jury the issue of entrapment. See, State v. Parks, 212 Neb. 635, 324 N.W.2d 673 (1982); United States v. Wolffs, supra. Therefore, it is the initial duty of the court to determine as a matter of law whether there is sufficient evidence that the government has induced the defendant to commit a crime. See, Notaro v. United States, 363 F.2d 169 (9th Cir.1966); Smith v. United States, 390 F.2d 401 (9th Cir.1968); United States v. Glaeser, supra; United States v. Glassel, supra. In order to submit the defense of entrapment to the jury, a defendant's evidence of entrapment must be "more than a scintilla." See, State v. Parks, supra; United States v. Wolffs, 594 F.2d 77 (...