State v. Talbot

• Decision Date: 24 July 1975
• Citation: 135 N.J.Super. 500,343 A.2d 777
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John TALBOT, III, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 500

135 N.J.Super. 500

343 A.2d 777

STATE of New Jersey, Plaintiff-Respondent, v. John TALBOT, III, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 3, 1975.

Decided July 24, 1975.

Martin Newmark, Morristown, for defendant-appellant (Newmark & Newmark, Morristown, attorneys).

Mart Vaarsi, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges KOLOVSKY, LYNCH and ALLCORN.

The opinion of the court was delivered by

ALLCORN, J.A.D.

Defendant appeals his conviction for the offense of unlawful distribution of heroin, entered upon a jury verdict.

The making of the sale of heroin to an undercover State Police officer on February 19, 1973 is not denied by defendant. Rather, he contends that the sale was the result of entrapment by the police and their informant; that not only did the police informant induce the unwilling defendant to make the sale, but that the heroin defendant sold to the police had been supplied to defendant by the informant a few days earlier for the express purpose of entrapping defendant into making the sale (albeit unknown to the police); and that since such evidence was uncontroverted and inasmuch as the State presented no 'proper proof' of defendant's predisposition to sell narcotics, defendant had established entrapment as a matter of law and, consequently, the trial court erred in denying defendant's motion for acquittal made at the close of the entire case.

It is undisputed that on February 14, 1973 Anthony Federici was arrested by the Wayne police on a narcotics charge. Federici having previously aided the Wayne police, sergeant Weinmann sought to recruit Federici again as an informant in assisting the police to search out and to obtain evidence against persons known by Federici to be dealers in or distributors of narcotics. In return, Sergeant Weinmann undertook to inform the judge of Federici's cooperation when he appeared for sentencing on the charge for which he had been arrested. Federici agreed and mentioned the names of several persons to Sergeant Weinmann, including that of the defendant.

Thereafter, on February 19, 1973, Federici, Weinmann and State Police Detective Dalio met with Trooper Jack Cole an undercover officer of the State Police, following which Cole and Federici proceeded to defendant's home in Smoke Rise, Kinnelon, in an unmarked police car. There they met defendant at or near a corral on the premises and, together, went into a barn or shed in or adjacent to the corral, where the sale of the heroin from the defendant to Trooper Cole took place, in the presence of Federici.

Federici, who did not testify for the State, was called as a witness by defendant. He testified on direct examination that following his arrest and his accommodation with Sergeant Weinmann on February 14, he sold 'narcotics to John Talbot' sometime 'between February 14 and February 19,' 'with the intention of arranging for a sale back to the police.' On cross-examination Federici was unable to fix the date of his sale to defendant any closer than 'February 17 or 18'; he could not recall where the sale took place; he could not recall the quantity sold and he could not state with any certainty the amount paid to him by the defendant--in contrast to his complete recollection of the place, quantity, price and the details of the conversations on the occasion of the sale from defendant to the undercover trooper on February 19, only a day or two after Federici's purported sale to defendant.

It was Federici's further testimony that defendant's name as a distributor was first suggested by him, not by the police; that the plan to sell heroin to defendant and to induce him in turn to sell some of it to the police was 'completely (his) own idea,' and '(n)o police officer ever suggested' such procedure to him. Significantly, Federici at no time testified that he informed any of the police officers concerned with this case of his plan prior to the sale to defendant or, subsequent thereto, of the fact or purpose of the sale by him to defendant. All of the police officers denied any knowledge and flatly rejected any such means as improper law enforcement procedure.

Defendant, who was 21 at the time of the trial in April 1974, testified on direct examination that he had been a user of heroin and marijuana for sometime prior to November 1972, when he stopped (Federici testified he had last sold heroin to defendant in December 1972 or January 1973, immediately prior to the February 1973 sale); that he previously had pleaded guilty to and been convicted of: breaking and entering in New Jersey in 1971; possession of eight ounces of marijuana and a quantity of barbiturates in New York, the offense having been committed in September 1972; possession of cocaine, barbiturates and seconal, possession of a hypodermic syringe and needle, and delivery of a barbiturate to a high school girl by injecting her with cocaine, committed in Rhode Island, in March, 1972.

Defendant also testified that Federici had telephoned him approximately February 17 or 18 and offered to sell him some heroin, which he refused; that Federici telephoned again the next day and, because Federici said he needed money and because defendant's resolve weakened, he agreed to buy a '$30.00 piece'--even though that was all the money he had; that thereafter Federici drove to defendant's home, where the transaction was consummated; that the following day Federici telephoned and said he wanted some heroin for a friend of his brother, just arrived 'from out west,' but defendant declined to sell; that, when, on the succeeding day (February 19), Federici telphoned again, defendant agreed to sell the balance of the heroin to Federici (defendant in the meantime having 'snorted' some of it himself), because he 'still didn't really want to get involved (in shooting),' and so 'decided I would get rid of it.' It is on the basis of this testimony of defendant and Federici that defendant claims that entrapment was established as a matter of law.

The defense of entrapment is grounded upon the proposotion that the 'function of law enforcement is the prevention of crime and the apprehension of criminals,' and 'that function does not include the manufacturing of crime,' Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). It 'reflects a policy that the powers of government should not be used to entice otherwise innocent persons into the commission of crimes which they would not commit on their own.' State v. Dolce, 41 N.J. 422, 432, 197 A.2d 185, 190 (1964).

The test enunciated by Dolce is that entrapment exists 'when the criminal design originates with the police officials, and they implant in the mind of an innocent person the disposition to commit the offense and they induce its commission in order that they may prosecute. . . . It occurs only when the criminal conduct was the product of the creative activity of law enforcement officials.' 41 N.J. at 430, 197 A.2d at 189. In the application of this test the determinative factors are: (1) whether there was any inducement to commit the offense by the law enforcement officers and, if so, (2) whether there was any predisposition to commit the offense on the part of defendant. See, Annotation, 'Modern Status of the Law Concerning Entrapment to Commit Narcotics Offense--Federal Cases,' 22 A.L.R.Fed. 731, 737--738 (1975); Annotation, 'Modern Status of the Law Concerning Entrapment to Commit Narcotics Offense--State Cases,' 62 A.L.R.3d 110, 113--116 (1975).

Otherwise stated, if the criminal intent originates with the law enforcement representatives and defendant is by them induced to commit the offense in order to prosecute him, defendant may not be convicted. On the other hand, if the criminal intent originates with defendant (I.e., he was predisposed) and the law enforcement representatives simply afford defendant the opportunity to commit the offense, there has been no entrapment.

In the present case the entrapment defense has two facets: (1) a law enforcement representative in the person of the government informant supplied and sold heroin to defendant with the intent that he sell some part or all of it to the undercover police officer, and (2) the government informant induced defendant, who was reluctant and not so predisposed, to sell the same heroin to the undercover police officer. It is the position of defendant that, inasmuch as the testimony of himself and Federici that the latter had furnished the heroin to defendant to sell to the undercover agent was 'so uncontradicted' and the State's proof of defendant's predisposition 'so insufficient,' entrapment had been established as a matter of law.

It is true that a number of cases have held that where the evidence is undisputed that an agent of the government furnished narcotics to an individual so that he may sell them to another government agent, and where there is no question of the credibility of the witnesses or their testimony, entrapment is established as a matter of law. ¹ United States v. Bueno, 447 F.2d 903 (5 Cir. 1971), Cert. den. 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411 (1973). Annotations, Supra, 22 A.L.R.Fed. at 748--750 and 62 A.L.R.3d at 141--145; see Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); compare United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). This rule has no application here, however, in view of the questionable credibility of the testimony of both defendant and the informant.

A mere reading of the testimony of defendant and of the informant on direct and cross-examination is alone sufficient to raise doubts as to the credibility of that testimony. The obvious self-interest of defendant, combined with the relationship between the two--defendant at the trial describing Federici as 'a good friend of mine for many years'--further affect the...