State v. Bridwell

1232 open abuses

door would designed to and prevent, statute Utah, The STATE of Plaintiff annihilation of be an the stat- result Appellant, ute.2 v. original in an agreement contained An up to set the statute of limi- obligation not BRIDWELL, Shane Defendant analogous been deemed to a tations has Respondent. obligation a debtor in an promise No. 14783. discharge bankruptcy. Such an waive repugnant pur- would be agreement Supreme Court of Utah. Bankruptcy per- Act and would of the pose objective. of its If such mit circumvention 28, June permissible, were in the natu- agreement business, Bankruptcy Act ral course nullified the inclusion of such a

would be majority arising in the debts out

waiver A statute of limitations contracts. is a law; its and beneficial is to security against stale demands.3

afford rule, a minority waiver

Under in the origi- of limitations embodied

statute is enforced contract

nal of the statute is plea purely defense, waived, bemay

personal public

that no interest is involved.4 In com-

parison reasoning supporting the ma- rule, appears

jority minority super- rule

ficial and unsound. Corbin sug-

gests supporting cases the minority disregarded.5

rule should be stipulation hold that a

We contained instrument, waiving

in a written the de statute perma

fense of the of limitations

nently, breach contract that

might future, occur is void and unen contrary policy.6

forceable as

ELLETT, J., CROCKETT, C. WIL- JJ., HALL, concur.

KINS Contracts, 218, (U.S.D.C.D.C.1955), v. pp. 5. 1A Munter Lankford Corbin On 306-307. F.Supp. Company Fund 6. See Fireman’s Insurance v. Company 3. National Bond and v. Investment Inc., Alaska, Lounge, Sand Lake 514 P.2d 223 Flaiger, 772, 431, 322 Mass. 77 N.E.2d 1 A.L. Ross, 249, v. (1973); Ross 96 Ariz. 393 P.2d 933 (1948). R.2d 1442 (1964); Spies, First Alliance National Bank v. (1953); 158 Ohio St. 110 N.E.2d 483 Brownrigg DeFrees, v. 4. See 196 Cal. Christian, Squyres v. Tex.Civ.App., 253 S.W.2d v. (1925); United States American Gas P. 714 Joseph (U.S.D.C.D. Screw Franz Alaska at An- 1962) chorage F.Supp. Now us let consider the evidence which looked at “in the light when most favorable going ease on trial” justify ruling court as it did. The trial stated: judge further Gen., Romney, Atty. B. R. Paul Vernon easy This not type of case. It is VanDam, County Atty., Lake Charles Salt for the law easy people enforcement Marson, Deputy County Lake Atty., D. Salt out there trying who are take care of City, plaintiff appellant. and Lake Salt things types people, that the Collard, City, Kathryn Salt Lake for de- community, of this are citizens demand- respondent. and of, ing they that take care doing and it way can, they putting together best they best case the can. And in this nar- ELLETT, Chief Justice: area, that easy. cotics It’s not appeals pretrial dismiss- State easy. Bridwell, against case Shane al I it’s that, think know, clear you charged with the offense wherein not like a it’s who is dealing in of a “unlawful distribution for value con- goes narcotics out and wares, solicits his (marijuana). The substance” trolled purchases solicits in the community like entrapped was respondent that and held do; mean, other merchants I these are so doing stated: operations. And covert so the Now, is: question Suppose sup- — use sheriff covert methods in order to pose we take all in dis- bring attempt things these to a halt. light view it in the most pute and favor- [Emphasis added.] going this case trial this able to after- The officer was who “out there trying to noon; is, that assume that the defendant types things take care of that the selling somebody immediately pre- people, the citizens of community, this Assume that vious to this sale. they demanding of, that take care and do- George England Mike both witnessed they it the best ing way can” did the best that, that immediately and assume fol- way he knew. He testified that he first sale, then, the that defendant was lowing went to Bridwell’s home Shane on Novem- George in the sale to Mike involved 21, 1975,and there he ber asked if Bridwell all England. Assuming and/or Charles arrange to aget “lid” (jargan mean- we still take things, of those have to into marijuana). a can of Bridwell told the consideration that the defendant is not to come back in days officer three and he charged with pounds by have some should then. sale; charged with he is charged days later the Three Eng- and Mr. with this sale. land, man, the contact returned. Both of suppose totally And that that sale was they testified that were them told sit on sale; voluntary part, sup- on his the other afterwards, shortly couch Mr. Brid- pose long that was of a pound marijuana well sold a to a man dealing that he was in. involved paid cash it. named Brown In a question brought Mr. Bridwell justi- not whether that few moments marijuana here, pound from out of the fies an situation second gave it to the officer who paid case, kitchen be the but whether this situation Mr. gone him $130. one willing came about who was with Mr. Bridwell and kitchen testified that get the circumstances to involved in this marijuana closet from situation, whether, in- pound- contained five or six other taken duced, or that there was a substantial marijuana. bags of induced, by friendship risk that it was relationship between for attempting buy reason mari- [Emphasis and the defendant. Mr. juana from Bridwell was because the added.] The State specifically appealed received a lot calls office had to this sheriff’s dealing heavily guidance in the proper court for interpreta- Bridwell lived) (where he 76-2-303(1), and that sur- U.C.A.1953, area tion of Sec. Kearns as en- showed a lot of of his residence acted 1973. The majority opinion veillance does not out the home. directly in and specifically respond traffic to this plea. sort was in some of trouble Mr. agreed help to the officers the law

with The trial judge ruled under this new part. on their He consideration some for enactment, the legislature had elected to they Mr. were in Bridwell since known “objective theory” follow of entrap- school, thought and it was high junior concept ment. Under this the character of be the contact man to introduce irrelevant; of the defendant disposition to Mr. Bridwell. the crucial an evaluation of the viz, conduct, did the state employ and his wife testified that Mr. Bridwell persuasions deceits and impermissible to in- marijuana Brid- England asked for the defendant duce to commit the offense. accommodation, selling as got it an well cost. If their has the exact for appeal predicated state’s The on the believed, be then one could find that the to ground vestige “subjective there is by sale was induced conduct particular remaining theory” in the new enactment England and the officer. It is difficult judge and that trial erred giving in not would, jury us believe that a to for evidence, adequate weight to the which in- hearing testimony, come to the same dicated defendant’s to com- as judge did trial about the conclusion concept mit the crime. Under this matter. requirements, are two inducement applicable The law to this case is set out government and innocence on the v. Curtis1 and need be in State re- pertinent the defendant. issue there- here. peated origi- is whether the design criminal nated with the government officials dealing heavily drugs One in Mr. they implanted in the mind of an inno- expected naturally to be Bridwell disposition person cent to commit the anyone reluctant to to sell careful alleged offense and induced its commission properly recommended him. not come did they might prosecute. in order that disarming given recommendation was That England and respondent by Mr. 76-2-303(1), as provides: enacted entrapped. caught The best that can —not It is a defense that the actor was en- Mr. Bridwell is that there is a said for trapped committing the offense. question involved in the matter. Entrapment occurs when a law enforce- ruling of the trial court is reversed or person ment officer directed by or with the case remanded directions to acting cooperation with the officer in- thereof. with the proceed duces the commission of an offense in to obtain evidence of

order the commis- J„ CROCKETT, concurs. prosecution creating sion methods risk a substantial that the offense would J., HALL, in result. concurs by one not ready be committed otherwise merely it. Conduct affording to commit MAUGHAN, (dissenting): Justice opportunity person an to commit an of the trial judgment Before us is a court offense does constitute entrapment. entrapment hearing. after an rendered foregoing entrapment found follows The court and dismissed the format and set 2.13(1) the case. We should affirm. All references forth Sec. of Model U.C.A.1953, Code, Proposed unless noted. (1962): otherwise Penal Draft Official Utah, P.2d (1) law enforcement official or termines A the issue. Under the main for- acting mulation, with person cooperation A’s mere offer purchase nar- perpetuates an official from D may give an cotics rise to the de- fense, obtaining provided D is not predisposed to he induces A contrary the commission an sell. result is reached under encourages the alternative. engage another A mere or offer to buy hardly creates constituting such offense a serious in conduct risk of offending by the innocent.5 either: (a) making knowingly representa- false The foregoing analysis is particularly per- designed to tions induce belief that tinent presented. issues prohibited; or such conduct found, informer,

(b) persuasion methods made employing overreaching appeals to compassion friendship create substantial inducement thus moved defendant such an will be risk that offense commit- to sell narcotics. other than those persons

ted The court stated that assuming the evi- commit it.1 ready to indicating predisposition dence were true (there conflicting was Significantly, evidence), No. Tentative Draft the issue offered, whether was not provision another was which set justi- entrapment. The subjective fy the entrapment, forth framed the follows: issue as provision ultimately and the which was by the institute was an adopted deemed . whether this situation came original formulation. The pro- alternative by one who willing about under the posed provision stated: get circumstances to involved in this situ- ation, whether, or it induced, law enforcement official or a

A or that substantial risk that acting in an person cooperation with such induced, aby it was friendship relation- perpetrates official if between ship Charles and the obtaining evidence of defendant. solicits, of an offense he en- commission or courages otherwise induces another The court continued: engage constituting in conduct Clearly, that was England’s Charles when is not such offense he then other- view, point he knew that as friend to do so.2 disposed he go to Shane Bridwell and day buy make a some from him if he kept In the commentary, following the tenta- working long enough. at it draft, the And tive differentiation between the though it just from the 21st explained as two theories is follows: [No- vember], because Charles England’s own The main between two formu- testimony was that at least lat- put by considering lations can be two October, part ter at the latest the first statement,3 Under the main examples. November, that he part started work- A, ap- makes overreaching an informer defendant over on trying to make compassion and peals friendship knew, buy. He he testified that he narcotics, D to sell D thus moves has no that he could buy knew make a based predisposed he is defense if to narcotics friendship, or that he upon could cause a Under peddling. the alternative4 a de- to be made. buy fense would established because police conduct, D’s de- ^[******] Institute, Code, objective theory 4. subsequently

1. American Law Model Penal that was 2.13, (1962), p. 43. § P.O.D. adopted the Institute in 1962. Institute, Law American Tentative Draft No. A.L.I., Code, Model Penal Tentative Draft No. 2.10, p. (1959), § 2.10, p. 19. theory. Subjective see, though even based even Now, you upon the he entertained a purpose to existed friendship that between the de- prior commit crime inducement and Charles it was at officials. Law-enforcement officers may days under the testi- least—at least—24 free to employ feel forbidden methods if month, more like a mony, probably freed “innocent” are but the habitual finally agreed before the defendant offenders, the police in whom have the sell. That’s under interest, greater will nevertheless be pun- England. said ished. October, forepart latter Investigation character and out, Extending November. disposition of the defendant has often worked on him at least a month. important obscured the task of judging The court that a ruled would have a quality police behavior. The em- finding difficult time there was no entrap- phasis inquiry of court-room is thus ment, beyond a reasonable doubt. “Accord- turned from the character of ingly, granted, par- motion under the conduct to the of the accused and ticular circumstances.” his immediate reaction to enticement. operative 76-2-303(1) words Sec. notion certain police con- Model and Sec. 2.13 of the Penal Code are may improper duct in relation to the provision the same. There is no phrase- acceptable “innocent” but when ad- ology in the statute which can be construed to the “guilty” dressed seems incompati- providing “predisposition” or “inno- the of equality ble with idea before the to requirement cence” constitute an entrap- Justice put law. As Mr. Frankfurter it in Concededly, prior ment defense. to the concurring his opinion in the Sherman statute, adoption of this this court had case: “Permissible activity does test, subjective viz, adopted the whether vary according not to the particular de- predisposition accused had a the to commit concerned; surely fendant if two suspects legislature crime.6 The the overruled this have been solicited at the same time in court. manner, the same one should go to entrapment promote The doctrine of is to jail simply because he has been convicted policy. a social before and is said to have a criminal chief aims of the . criminal disposition.” 356 U.S. at 383. S.Ct. [78 men from prevent engaging law are to in Further, permit use, to against 819]. socially harmful conduct and to instruct previously person, convicted of police requirements good men in the basic of permitted measures not toward the rest is consistent citizenship. It with these society permanent is to fix a of status of recognize a purposes to defense based criminality against the hopes enlight- unsavory police upon those methods penology.8 ened effect of fostering crimi- which have nality.7 A further factor verifies legis- lative intention objective to enact an objective sustain the the- rationale to entrapment (6) is subdivision of Sec. 76- ory entrapment set forth as follows: provided: 2-303. There it is is available only per- If the defense to “innocent,” any hearing before a judge or jury sons who are the full deter- where the defense of entrapment rent effect of the defense is undermined. is an issue, particular past toward a of the Police conduct offenses de- defendant shall may seriously objectionable . not be admitted Curtis, Utah, A.L.I., Code, 6.See State v. P.2d 748- Model Penal Tentative Draft No. (1975), 2.10, (1959), p. wherein the doctrine entrapment this state is set forth in the Id., dissent. p. effectively . provision This eliminates Equally important is the con- prosecution present of the opportunity sideration jury verdict, that a although it accused’s criminal character or proof of the settle the may issue of entrapment in the past of his of- evidence case, particular cannot give significant fenses. guidance official conduct for the fu- err by limiting court, court did Only through ture. gradu- question entrapment issue of of explicit al evolution standards accu- informer, England, in- whether the precedents,‘can mulated do this with the offense, commission of duced the degree of certainty the wise adminis- creating a substantial risk the of- methods justice tration criminal demands. be committed one not other- fense would Defendant and his wife had known commit In applying it. ready England for many years. England test, the course of be- objective conduct and defendant had been friends since Jun- agent accused and the tween the of the High ior School days friend. On Au- be evaluated. The police should transac- —some 20, England gust attended defendant’s leading up to the tions the interac- birthday party as companion accused, defend- agent and the tion between ant’s sister. sold response and the accused’s induce- defendant a bicy- agent ments of the are all cle day. considered same Thereafter, England agent’s the effect judging conduct frequently visited in defendant’s home. On person.9 on a normal occasions, requested several marijuana; consistently refused. Defendant majority opinion case remands the explained wife to England and his they had by jury issue. discontinued all use of 76-2-303(4) drugs provides previous that the Section for the spring, hear on the issue and shall reasons drugs shall as a matter of fact law determine discord in caused their marital relationship, defendant was entrapped whether the and Mrs. Bridwell was expecting a second offense. If the majority commit the ingratiated child. further himself the subjective theory appli- the view that by bringing to the Bridwells supervisor his 76-2-303(1), cable under Sec. then the mat- to their home for the of meeting ter should remanded the trial court possibly defendant and employing him. for a determination of the facts. evi- Defendant had actively seeking work, been concerning defendant’s predisposition dence and, although the meeting did not result in seriously disputed and no finding employment, grateful England’s made; substantial evidence to interest and assistance. conflicting of support either versions According to defendant on 24, November A review of the the event. relevant statu- came his home in morning indicates this tory provisions court could urgently seeking marijuana. Defendant only a case for a remand trial where him described as nervous and upset. It was the dismissal the trial court these circumstances that sup- based on substantial evidence to defendant entrapment. port procured drug, the defense which he sold that eve- England. ning to The majority opinion re- dissent, this Although prolonging conflicting testimony lates through facts as revealed officer, accompanied England who had wife merit defendant his review. Significantly, defendant’s home. the Brid- States,10 United Sherman v. Justice Frank- wells, England, officer all differed furter, opinion, a concurring advocated as to the number of occasions the position that the judge prior sale, tried went to the home should be alone. He stated: constituted the offense. Alaska, Alaska, 369, 385, v. 819, 827,

9. See Grossman 457 P.2d 356 U.S. 78 S.Ct. (1969). L.Ed.2d not, fact-finder, judge did as a merely the conflicts. He found resolve undisputed facts that the methods

from acting cooperation who was officer,

with the created substantial risk would commit

that defendant the offense.

WILKINS, J., concurs Justice MAU- dissent.

GHAN’S VANLANINGHAM,

Bruce R. Appellant, Plaintiff and Roberts, J. Val Centerville, Walker E. v. Anderson, Salt Lake City, for plaintiff and appellant. OF DEPARTMENT BUSINESS REGULA TION the State Utah and Gene B. Hansen, Robert Atty. Gen., L. James Lambert, Director, its Hal Executive Barker, Jr., Atty. Gen., Asst. Salt Lake Director, Bennett, S. former Executive City, respondents. for defendants and pt. Registration of the State De Floy McGinn, W. Di of Utah its HENRIOD, Justice, Retired: rector, Respondents. Defendants and Appeal summary judgment favor- Regulation the Business

No. 14943. Department of Utah, sustaining its denying order plain- Supreme Court Utah. application plumber’s license, for a tiff’s failing, for an extension a tem- July porary pending license taking of a fifth examination, having previ- failed four —he Affirmed, ous ones. with no costs awarded. 1) says Plaintiff that: The prevailing statute, amended, as unconstitutional of ambiguity, its face because but in any event, unconstitutionally applied, way of personally; discrimination to him 2) That he is entitled to a license way reciprocity Indiana, with where he plumber. been a licensed 2), Reciprocity: to As Plaintiff cites 58-1-19, Title Utah Code Annotated amended, which in reads as follows: department may “The license . examination, without been . . . has licensed after examina tion, state . . . whose educa-

Case Details

Case Name: State v. Bridwell

Court Name: Utah Supreme Court

Date Published: Jun 28, 1977

Citation: 566 P.2d 1232

Docket Number: 14783

Court Abbreviation: Utah