State v. Weinzerl, KCD26038

• Decision Date: 07 May 1973
• Docket Number: No. KCD26038,KCD26038
• Citation: 495 S.W.2d 137
• Parties: STATE of Missouri, Respondent, v. Gary Lee WEINZERL, Appellant.
• Court: Missouri Court of Appeals

Page 137

495 S.W.2d 137

STATE of Missouri, Respondent, v. Gary Lee WEINZERL, Appellant.

No. KCD26038.

Missouri Court of Appeals, Kansas City District.

May 7, 1973.

Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Before DIXON, C.J., SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

Defendant was convicted by a jury upon two indictments which charged sales of hallucinogenic drugs. Defendant offered no evidence but elected to stand on his motion, denied by the court, for judgment of acquittal at the close of the state's case. The state's evidence proved conclusively that the sales had been set up by an informer and made by defendant to an undercover police agent. The court submitted the issue of entrapment to the jury. Defendant contends that the court should have declared entrapment as a matter of law and adjudged his acquittal because the state failed to rebut the issue of entrapment by evidence from which the jury could conclude that he was predisposed to commit the crimes charged.

The evidence was uncontradicted. Officer John Ramsey, a Missouri Highway Patrolman assigned to undercover drug investigation in Clay County, drove to a park in North Kansas City, accompanied by Carlyn Ogden, an informer. There, by pre-arrangement of the informer, they met the defendant who was then in the company of two other men. After some badinage, Ramsey asked the defendant 'if he had the stuff'. Defendant stated that he did, that he would sell Ramsey 'chocolate chip mescaline and purple acid'. Defendant withdrew from his shirt pocket two clear plastic bags containing quantities of what was later analyzed as 4-methyl 2 and 5-dimethoxy alpha methyl phenylethyami (STP and LSD). From this quantity, the group counted out the number of pills specified by Ramsey. Ramsey then asked defendant 'how much money he wanted', to which defendant replied, '215.00', specifying the cost of each group of pills. Ramsey handed defendant the money and he and the informer left the park, taking with them the drugs so purchased.

Cross-examination of the prosecution's witnesses disclosed that at the time of the transaction Carlyn Ogden, the informer, was under charge by the Clay County Prosecutor for possession of drugs, but that after defendant's arrest, the charge was dismissed. The informer was not called as a witness by the prosecution, and both of the witnesses for the state denied knowledge of where she could be found. Nor did Officer Ramsey have knowledge of what had taken place at the earlier encounter between the informer and the defendant. Although Jack Corum, an investigator for the Clay County Prosecutor did not know of any agreement with the informer by the prosecutor's office, he understood that Ogden's 'job as an informant was to contact the people who she knew was dealing in drugs and set up a 'buy' with our undercover people'. The transaction between defendant and Ramsey was such a sale set up by Ogden.

Although the law of entrapment has been firmly established in Missouri for many years, ¹ the questions which come on this appeal--upon whom does the burden rest to raise the issue, and if raised, what is the consequence for the state's failure to rebut an unlawful entrapment?--have yet to be fully answered by our courts. The determination of these questions is directly related to the nature of the principle of entrapment and the rationale upon which it rests.

The Missouri Supreme Court defined the entrapment principle in State v. Decker, 321 Mo. 1163, 14 S.W.2d 617 (1929), l.c. 619--620(3, 4):

Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent.

This declaration has become a fixed rule of law and has been followed consistently by the courts of this state. ² Decker held also, and Martin ³ reaffirmed, that when the entrapment issue arises upon substantial evidence, it becomes one of the elements of the offense upon which the court must instruct as part of the law of the case. See also, State v. Hicks, 326 Mo. 1056, 33 S.W.2d 923, 925(1--8). The necessary implications of these holdings are that a submissible issue of entrapment arises from substantial evidence produced by either the state or the defendant ⁴ that the criminal intent for the commission of the offense 'originate(d) in the mind of the entrapp(ing)' governmental agent, and upon such a prima facie showing, the burden is cast on the state to prove beyond a reasonable doubt that the criminal intent did not originate in the mind of the governmental agent. State v. Hammond, 447 S.W.2d 253, 254--255(2) (Mo.1969). Neither these nor other Missouri decisions have dealt with the related questions remaining on appeal: when the issue of entrapment is raised by substantial evidence, does the law also impose upon the state the procedural burden of going forward with evidence that defendant was not entrapped, and if so, what is the legal effect of the state's failure to meet the burden of rebuttal?

Although the law of entrapment has developed independently in Missouri ⁵ our courts have recognized the precedent of federal decisions and practice ⁶ and the authority of the principles adopted by the United States Supreme Court 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). ⁷ The Sorrells court adopted (287 U.S. l.c. 451, 53 S.Ct. l.c. 216) and Sherman reaffirmed (356 U.S. l.c. 372--373, 78 S.Ct. 819), an origin of intent test for entrapment identical in all but expression with that of State v. Decker, supra, by which the relevant inquiry is whether the crime resulted from '(t)he predisposition and criminal design of the defendant' or 'the creative activity' of the governmental agents. Although neither Sorrells nor Sherman spoke directly to the questions raised here--what burden does the law impose upon the prosecution once the entrapment issue has been raised by substantial evidence?--the lower federal courts have developed a rule congruent with the state of the Missouri law on the subject.

In the first appeal of the Sherman case (the second appeal reached the United States Supreme Court), Judge Learned Hand first defined the nature of the rebuttal required of the prosecution to effectively respond to evidence of an offense induced by an entrapment, United States v. Sherman, 200 F.2d 880 (2d Cir. 1952), l.c. 882:

(I)t is a valid reply to the (entrapment) defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offence charged, whenever the opportunity offered. In that event the inducement which brought about the actual offence was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his preexisting purpose . . .

and then defined the elements of a submissible entrapment issue and ascribed the burden for the proof of each, l.c. 882(2--5):

Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged . . . (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it. (Emphasis supplied.)

Subsequent cases have recognized, however, that the Judge Learned Hand burden of proof idiom is not aptly applied to a criminal defendant and, when submitted in the terms of his declaration, tends to mislead a jury. United States v. Pugliese, 346 F.2d 861, 862(1) (2d Cir. 1965); Kadis v. United States, 373 F.2d 370, 372--373 (1st Cir. 1967); Notaro v. United States, 363 F.2d 169, 174(2, 3) (9th Cir. 1966). Consonant with fundamental precepts that the burden rests on the prosecution throughout the trial to prove guilt beyond a reasonable doubt and that the law imposes no duty on a defendant in a criminal case to adduce any evidence (Wharton's Criminal Evidence § 13, 13th ed.), reasoned federal decisions have adopted the view that once the issue arises, 'and the determination of the ultimate question of entrapment is submitted to the jury, 'it is better (that the instructions not) speak in terms of the defendant having (any burden whatsoever)'. Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127, 129 (1963).' Notaro v. United States, supra, l.c. 175(7); United States v. Arnold, 445 F.2d 290 (10th Cir. 1971). This view accords with the Missouri rule of Decker and Martin, supra, that a defendant has no burden on the issue of entrapment so that 'when it can be said that the issue of entrapment has fairly arisen, whether by testimony given during the presentation of the prosecution's case in chief or by testimony offered in defense, the defendant has met whatever 'burden' rests upon him'. Notaro v. United States, supra, 363 F.2d l.c. 174(4--6); Kadis v. United States, supra, 373 F.2d l.c. 374; United States v. DeVore, 423 F.2d 1069, 1071(5, 6) (4th Cir. 1970); Lopez v. United States, 373 U.S. 427, 435, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Those authorities which have considered the proof of entrapment methodology are in accord, also, that where substantial evidence of inducement by governmental agent...