State v. Talbot

• Decision Date: 09 August 1976
• Citation: 71 N.J. 160,364 A.2d 9
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John TALBOT, III, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 160

71 N.J. 160

364 A.2d 9

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

Supreme Court of New Jersey.

Argued April 26, 1976.

Decided Aug. 9, 1976.

Mart Vaarsi, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland, Atty. Gen., attorney; Mart Vaarsi, of counsel and on the brief).

Martin Newmark, Morristown, for defendant-respondent (Martin Newmark on the brief).

The opinion of the Court was delivered by

SULLIVAN, J.

This appeal poses the issue whether entrapment is established as a matter of law if an informant, while acting in concert with an undercover police officer, but unknown to the officer and contrary to instructions, supplies the defendant with heroin for the purpose of then arranging a sale of the heroin by defendant to the undercover officer, which sale is then consummated. We hold that it is.

Defendant, John Talbot, III, was convicted of selling heroin to an undercover police officer, the jury having rejected his defense of entrapment. The facts adduced at trial were essentially as follows. On February 14, 1973 one Anthony Federici was arrested by the Wayne police on a narcotics charge. At police headquarters he was told that if he cooperated with the police in effecting arrests of drug dealers the police would do everything within their power to help him to avoid a jail sentence on the pending charge. Federici, who had previously served as an informant, agreed to arrange transactions for the police. Although Talbot was his good friend, Federici named him, among others, as a person from whom purchases could be made. This suggestion met with approval although Federici received no specific instructions from the police as to how to proceed.

Federici, who testified as a defense witness, said that he went to New York, obtained some heroin and then telephoned defendant and offered to sell it to him. Defendant, however, refused to buy. The following day, Federici again telephoned defendant and renewed the offer saying he needed money. This time defendant agreed and Federici went to the Talbot farm in Smoke Rise and sold him a packet of heroin for $30.

The day after the sale, Federici telephoned defendant and asked him to resell the heroin to a friend of Federici's brother who had just arrived in town 'from somewhere out west' and wanted some heroin but could not make any connections. Defendant's reply was 'absolutely not.' Federici called again the next day and, after some conversation, defendant said he would sell the rest of the heroin (defendant had 'snorted' some of it) but only to Federici.

On February 19, 1973, Federici notified the police that he had arranged a 'buy' from defendant. The next day he and Jack Cole, an undercover agent of the State Police Narcotics Bureau, went to the Talbot farm where they met defendant. After Cole was introduced as a friend of Federici's brother, defendant sold a packet of heroin to Cole for $20. Cole explained to defendant that he had been a large drug dealer in Michigan but had been forced to leave by the police and that he was trying to 'set up' in New Jersey to sell drugs. He told defendant he had 'a lot of outlets' and was looking for a supplier. According to Cole, defendant then told him that he was capable of supplying ounces of heroin. ¹

One other item of evidence is relevant to the discussion. When Federici was arrested by the police on February 14, 1973, he was questioned about a person who was then under investigation as an international drug dealer. Federici said that he had never heard of the person but suggested that, if the police wished, he would sell the person some drugs that could later be bought by an undercover agent. According to the officer the suggestion was rejected, Federici being told, 'No, we don't operate that way.'

In an opinion reported at 135 N.J.Super. 500, 343 A.2d 777 (1975), the Appellate Division reversed the judgment of conviction and ordered a new trial. The basis of the Appellate Division ruling was that the trial court had committed prejudicial error in charging the jury to the effect that there could be no entrapment unless the informant in furnishing the heroin to the defendant for sale to the undercover officer 'was acting with the consent of the police and as their agent.'

The Appellate Division rejected the notion that where the State uses an informant in its pursuit and discovery of criminal activity, it can avoid responsibility for the informant's unlawful actions by claiming that it did not have prior knowledge and did not give prior consent to such activity. Quoting from Sherman v. United States, 356 U.S. 369, 375, 78 S.Ct. 819, 2 L.Ed.2d 848, (1958), it held that government cannot make use of such informant's activity "and then claim disassociation through ignorance." 135 N.J.Super. at 509, 343 A.2d at 782.

Although it reversed the judgment of conviction because it found error in the charge, the Appellate Division did not hold that entrapment had been established as a matter of law even though the testimony of defendant and Federici, who testified on defendant's behalf, was uncontradicted. Instead, it held that the credibility of such testimony was open to doubt in light of defendant's obvious self-interest together with the fact that Federici was his good friend. These circumstances along with other substantial evidence of defendant's prior narcotics activity, and his statement to the undercover officer that he could supply ounces of heroin, led the Appellate Division to conclude that a jury question existed as to the truth of the entrapment evidence. The State's petition for certification was granted. 69 N.J. 81, 351 A.2d 9 (1976). We affirm.

Entrapment is an affirmative defense. A defendant who claims entrapment has the burden of presenting evidence in support of this defense. However, once this is done, the issue ordinarily is one for the jury which should be charged that the State must prove beyond a reasonable doubt not only that defendant committed the crime, but that he was not entrapped into doing so by the police. State v. Dolce, 41 N.J. 422, 432, 197 A.2d 185 (1964).

Entrapment occurs when the criminal conduct was the product of the creative activity of law enforcement officials. Sherman v. United States, supra, 356 U.S. at 383--384, 78 S.Ct. 819. As we said in Dolce, supra, 41 N.J. at 431, 197 A.2d at 190, 'courts will not permit their process to be used in aid of a scheme for the actual creation of a crime by those whose duty it is to deter its commission.' However, this does not mean that the police may not use artifice to trap the unwary criminal. Rather, entrapment is concerned with the manufacturing of crime by the police and the ensnaring of unwary innocents. Sherman, supra, 356 U.S. at 372, 78 S.Ct. 819. To date the United States Supreme Court has not rested the defense of entrapment on constitutional grounds. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 415 (1932); Sherman v. United States, supra; United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Instead, these cases all involve federal criminal statutes and construe such statutes as prohibiting law enforcement officers from instigating a criminal act by otherwise innocent persons, although a trap can properly be set for the unwary criminal. Accordingly, where the defense of entrapment is raised in a federal trial, the inquiry focuses on the intent or predisposition of the defendant to commit the crime rather than on the alleged impropriety of the government's conduct. Russell, supra, at 433--436, 93 S.Ct. 1637. Under this subjective approach the defendant's predisposition is a criminal jury issue.

The latest decision by the United States Supreme Court dealing with the defense of entrapment in a federal trial adheres to the subjective approach. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the defendant, although conceding a predisposition to commit the crime in question (sale of heroin), argued that entrapment as a matter of law had been established if the jury believed his testimony that a government informer had supplied him with the contraband.

A majority of the Supreme Court rejected this contention. Three of the justices in a plurality opinion held that where defendant conceded a predisposition to commit the crime in question, not only is the defense of entrapment unavailable but also a violation of due process cannot properly be claimed. Two other justices concurred in the judgment on the ground that the practicalities of combating narcotics traffic frequently require law enforcement officers legitimately to supply 'some item of value that the drug ring requires,' quoting from Sherman, supra, 411 U.S. at 432, 93 S.Ct. at 1643. However, these justices found it unnecessary to hold that a violation of due process could never be claimed by a predisposed defendant no matter how outrageous the police behavior, nor would they foreclose reliance on the court's supervisory power to bar conviction of a predisposed defendant because of outrageous police behavior. Accordingly, they were unwilling to conclude that simply because predisposition was shown, neither due process principles, nor the court's supervisory power, could support a bar to conviction regardless of the nature of the police behavior.

Three justices dissented in Hampton. They would not use the subjective 'predisposition' approach but rather would focus the inquiry on the propriety of the police conduct. So doing, they would bar a conviction as a matter of law where the subject of the criminal charge was the sale of contraband provided to the defendant by a government agent.

Hampton and the other Supreme Court decisions mentioned above were concerned with construction of the federal statutes and to some extent with the supervisory power of the federal courts to bar federal convictions because of 'outrageous' police...