State v. LittleState v. Little
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- Before:
- Brock
In this сriminal case the defendant appeals his conviction on two counts of sale of a controlled drug,
On appeal, the defendant, through new counsel, raises numerous issues. He claims that the trial court erred in allowing the State to produce rebuttal testimony tending to show the defendаnt’s predisposition to commit the crime, that due process prohibits placing the burden of establishing entrapment on the defendant, that the court’s jury instructions were inadequate, that he was denied his right to a speedy trial, and that the trial court erred in not setting aside the verdict. In each instance we disagree and, therefore, we affirm the conviction.
During trial, the defendant testified that he had sold marijuana to the undercover agent on the dates alleged in the indictment. He also testified that he smoked marijuana with somе regularity and that at various times had as much as one pound of marijuana in his home. However, the defendant claimed that he had never sold drugs on any other occasion, that he was not so inclined, and that the only reason he sold the drugs in this instance was because he was coerced into doing so by a drug dealer acquaintance. At the time of the sales, the defendant was unaware that the dealer had become a police informant.
Under the scheme alleged by the defendant, he was to sell marijuana to a friend of the informant. That “friend” turned out to be an undercover рolice officer, and, after he had made two separate sales, the defendant was arrested. After the defendant had testified at trial to the foregoing, the State introduced rebuttal testimony that tended to show that the defendant was predisposed tо this type of drug activity. It is the defendant’s contention that the admission of this testimony was improper and constitutes reversible error.
The entrapment defense is designed to prevent persons from being convicted of a crime manufactured by law enforcement officers. State v. Bacon, 114 N.H. 306, 308, 319 A.2d 636, 638-39 (1974). Generally, the determination of whether a defendant has been entrapped is made by reference to one of two criteria, one a subjective test and the other an objective test. State v. Bacon, 114 N.H. at 308, 319 A.2d at 639; see State v. Snow, 98 N.H. 1, 93 A.2d 831 (1953); Cronin, The Law of Entrapment in Massachusetts and the First Circuit, 14 Suffolk U. L. Rev. 1203, 1206-10 (1980). The subjective test involves an inquiry into “the intent or predisposition of the defendant to commit the crime.” State v. Bacon, supra at 308, 319 A.2d at 639. That inquiry focuses on the defendant, the person in the courtroom who is accused of committing the crime, and if he is found to have been predispоsed to commit the crime, the defense will fail. United States v. Russell, 411 U.S. 423, 433 (1973).
In assessing whether the defendant is criminally predisposed, the actions of the government and its agents are not critical factors unless their conduct “is so outrageous that due process principles would absоlutely bar the government from invoking judicial processes to obtain a conviction. . . .”
See id
at 431-32. Therefore, when the subjective test is utilized to determine whether a defendant has been entrapped, admission of any evidence that tends to show “[t]he predisposition and criminal design of the defendant [is] relevant.”
Sorrells v. United States,
287 U.S. 435, 451 (1932);
United States v. Henciar,
568 F.2d 489, 492 (6th Cir. 1977),
cert. denied,
435 U.S. 953 (1978). It follows, then, that if the entrapment test
When the objective test is used, the inquiry focuses not upon the defendant’s predisposition, but rather upon the conduct employed by law enforcement officials and their agents in providing the defendant with an oppоrtunity to commit the crime. United States v. Russell, 411 U.S. 423, 441 (1973) (Stewart, J., dissenting). Under this theory, evidence of the defendant’s predisposition is not relevant. Id. at 446 (Stewart, J., dissenting). The defendant argues that the objective test should have been employed and that the admission of predisposition evidencе at trial was reversible error. See People v. Barraza, 23 Cal. 3d 675, 153 Cal. Rptr. 459, 591 P.2d 947 (1979). However, our review of the record indicates that it was the defendant himself who first raised the issue of predisposition.
The defense of entrapment is not one of constitutional dimension under the federal constitution. United States v. Russell, 411 U.S. at 432-33. However, сonstitutional due process can be violated if law enforcement tactics and activities used against the defendant violate “fundamental fairness [and are] shocking to the universal sense of justice. . . .” Id. at 432. As a general rule, the federal Congress and state governments are free to adopt their own rules governing its applicability in their respective jurisdictions. See United States v. Russell, 411 U.S. at 433.
Our State legislature has articulated the defense of entrapment as follows:
“It is an affirmative defense that the actor committed the offense because he was induced or encouraged to do so by a law enforcement official or by a person acting in cooperation with a law enforcement official, for the purpose of obtaining evidence against him and when the methods usеd to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. However, conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
In
Bacon,
we observed that the defendant had offered no evidence to show that the police had done anything more than “afford him ‘an opportunity tо commit’ the offense of which he was convicted.”
State v. Bacon,
114 N.H. at 309, 319 A.2d at 639 (quoting
Prior to the enactment of
The defendant next argues that requiring him to bear the burden of proof in establishing his entrapment defense violates due procеss and that, therefore, it was error for the court to instruct the jury that it was the defendant’s burden to establish that defense by a preponderance of the evidence. We note, however, that no objection was taken to the court’s jury instructions and the matter is thеrefore not properly before us.
State v. Donovan,
120 N.H. 603, 608, 419 A.2d 1102, 1105 (1980). Moreover, entrapment is a limited defense,
United States v. Russell,
411 U.S. at 435, and is rooted “in the notion that Congress [or state legislatures] could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the government.”
Id.
The various legislative bodies are free to adopt any definition of the defense of entrapment they deem appropriate.
Id.
In this State, the legislature has defined the defense in
Next, the defendant argues that the trial court failed to adequately instruct the jury that the informant’s conduct could
The defendant’s last argument is that he was denied his right to a speedy trial because the time between his arrest and jury trial wаs approximately fourteen months. We must, therefore, consider four factors in determining whether the defendant’s right to a speedy trial has been violated: (1) the length of the delay, (2) reasons for the delay, (3) whether the defendant asserted his right, and (4) any prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-33 (1972); State v. Weitzman, 121 N.H. 83, 86, 427 A.2d 3, 5 (1981). Of these four factors, we place particular emphasis on the latter two. State v. Fraser, 120 N.H. 117, 120, 411 A.2d 1125, 1127 (1980). In that regard, we note that the defendant did not assert his right to a speedy trial until one week before the trial was held. During those fourteen months, the defendant remained free on bail. Under these circumstances, “the defendant’s failure to demand a speedy trial may be weighed against him.” See State v. Weitzman, 121 N.H. 83, 87, 427 A.2d 3, 5 (1981).
The defendant points to the dimming of memories and the fact that the defendant lost his license to practice chiropractic medicine and claims these constituted undue prejudice. The passage of time, and the resulting impairment of memories, however, is not a sufficient basis “to wrench the Sixth Amendment from its proper context.” See United States v. Marion, 404 U.S. 307, 321-22 (1971). Memories begin to dim almost immediately after an event ocсurs, and if that were to be a sufficient basis to hold that a defendant had been prejudiced to the point where he had been denied his right to a speedy trial, we would have to disregard the considerations we normally place upon the delay “with regard to the practical administration of justice.” See State v. Cole, 118 N.H. 829, 830, 395 A.2d 189, 190 (1978). “Absent a rule or statute setting time limits, a defendant has a responsibility to assert his right to a speedy trial.” State v. Weitzman, supra at 86, 427 A.2d at 5.
Moreover, the record reveals that the attorney general’s office had no part in causing the delay, and at оne point it even requested the court to set a trial date as soon as possible. Under
Accordingly, the order is
Exceptions overruled; affirmed.
Batchelder, J., did not sit; the others concurred.