State v. Moeller

Dakota, STATE of South Plaintiff Appellee,

and MOELLER,

Kyle Defendant Chris Appellant.

No. 15072.

Supreme Court of South Dakota. Briefs,

Considered on Feb. 1986. Ledbetter, Clair B. Asst.Atty.Gen., Decided June Pierre, plaintiff appellee; Mark V. Rehearing July 10, Granted Meierhenry, Pierre, Atty.Gen., on brief. Grossenburg J.M. Day, Grossenburg Whiting, Winner, & for defendant ap- pellant.

HENDERSON, Justice. PROCEDURAL HISTORY On Tripp June County jury returned two appel- verdicts which found (Moel- lant-defendant Chris Moeller ler), guilty of Distribution of a Controlled Substance, Cocaine, to wit: a violation of 34-20B; SDCL 22-42-2 and SDCL ch. guilty of Possession of a Controlled Sub- stance, Cocaine, to wit: a violation of SDCL 22-42-5 and SDCL ch. 34-20B. The court, by trial Suspending Imposi- Order Sentence, tion of judgment did not enter a of conviction on the above offenses. In- stead, denotes, as the title of the order triаl suspended court imposition sentence, placed him ic five years’ probation, $1,000 imposed fine, ordered Moeller days to serve 30 South Dakota State Penitentiary. Moeller contends entrapped. he was We affirm. FACTS April 1984, Special South Dakota DCI (Boots), Dennis Boots a/k/a Dennis Baker, began investigation an undercover illegal drug Tripp County distribution in surrounding and the Upon area. his arriv- al, local law enforcement officials showed picture Boots a of Moeller. Law enforce- intelligence reports indicated that 873 Moeller, drugs. marijuana pounds Moeller was involved with fоr 12 of Sensamelion old, who at the of trial was 27 years marijuana. time marijuana, Sensamelion hy- is a in parents’ worked on his farm and a brid illegal lived of more value in drug markets. approximately mobile previously home thereon 25 Boots made it known that he Winner, miles northwest of South Dakota. was from California and that Sensamelion readily was not as available in California as following 1984, In the months of Boots was marijuana. Columbian Moeller re- in July observed Moeller the local bars. In sponded that he did not deal but that he 1984, buy to in Boots tried Moeller a drink might know some interested individuals. tavern, a local Moeller After declined. this, 1985, and until March Boots not did Boots thereafter left the Winner area for investigate any great Moeller extent. two under pretense weeks of going to Boots, however, observe smok- Upon did Moeller Winner, California. his return ing occasions, marijuana two but Boots on April 1985, one of the first two days had no again interaction Moeller until March Boots met with at Moeller the lat- 1985.1 time, ter’s residence. At this the car sale was discussed. Boots then stated that his 1985, In March Boots Moel- learned that father owned a company construction in selling ler was sports interested a car. Califоrnia and his company father’s needed Thereafter, phoned parents Boots Moeller’s workers. Boots further pre- stated expressed several times and an interest $9,000 viously made working a month for Moeller, purchasing through the car. an- his father’s company construction and that individual, other then contacted Boots $5,000 Moeller could make a month. Em- 1985, 14, about the car On sale. March calendar, ploying a Boots and Moeller coop- Boots and a local individual who was planned they when could leave for Califor- erating investigation, went Moel- they nia and when could return to Winner pretense ler’s pur- residence under the up for a scheduled event pick Moeller’s chasing car. Moeller’s Since the was car date, cousin Tim. On this same Boots there, not talked the three and smoked again suggested marijuana trade. marijuana. some of twice Boots thereupon inquired Moeller many as to how marijuana. asked Moeller to sell some pounds Columbian marijuana he could stating Moeller refused that he deal did not get in for sports trade his car. Thereafter, give Moeller did joints Boots marijuana following two for road. days, Moeller informed $5,000-a-month parents his of the California Moeller met at a Boots Winner bar the arranged construction his cous- 15, day, gave' next March and Boots Kathy to take over some his farm sports Moeller to hold the car. Pur- $100 duties. Moeller also contacted individu- $2,200 price agreed car chase marijuana concerning al in Pierre trade. but its wholesale market value in Denver April Moeller set for $700 $800. set was the date time, price sug- At day, p.m., for the car. this trade. On this at 2:45 Boots gested 24 pounds a trade Columbian Boots told Moeller that Moeller and paints buy 1. The dissent a scenario of Boots Boots’ a drink and not remembеr offer to pursuing seeing sales remember Boots until and Moeller did not even scenario, Thus, refusing however, year.” fully whole reveals that it “for This March 1985. the record year supported is not the written record took Boots a to meet Moeller and that indicates, presence previously stat- in Win- herein. The record Moeller was unaware of Boots’ ed, March no 1985. Of the six or that Boots had interaction with Moeller ner. until seven times, testimony, until March never per Agent 1985. Boots testified that he that Boots Boots’ Moeller, year, get during contact was in tried to one know contact buy July attempted to and never Moeller, know when Boots tried other times to drink, community were in because Winner is "a small the other six contacts April support people you and in order to to know don’t March 1985. This does just up drugs.” walk them for contention that hounded and ask Moeller's the dissent’s testimony year. own did an entire trial indicates that Moeller Moeller for liams, trading marijuana should 84 S.D. 173 N.W.2d he, Boots, (1970). some so that would be determining When whether en- exists, were not undercover trapment sure narcotics this subjec- Court uses the officers. Moeller stated that could ob- espoused test tive first in Sorrells v. Unit- tain cocaine from аn individual in Winner ed U.S. 53 S.Ct. quantities and various of cocaine were fur- (1932). L.Ed. 413 test, Under this also trial, discussed. As ther testified to at origin test, known as the of intent State v. however, the sole reason Boots wanted Nelsen, 89 S.D. 228 N.W.2d get drugs was so he could arrest (1975), the focus is on where the intent to having drugs. Moeller for Later that af- originated, i.e., commit the crime whether ternoon, phoned Boots and stated defendant or in the everything fine was on his end. agent. Johnson, State v. 268 N.W.2d (S.D.1978). Thus, evening, parties That the met in a Win- proceeded jury’s ner bar and then to the it is the duty Winner to decide whether the There, airport. Moeller and the individual defendant рredisposed to commit the from Pierre persons words, removed from their crime. In other does the evidence packets containing small cocaine and hand- show that the criminal intent is traceable ed them to Boots. Boots price asked the to the defendant or to the Government and then handed person Agent? to the genesis Where the of the intent Pierre. Moeller received the cocaine he to commit the criminal act is in the mind possessed from the individual from Pierre the Government “and the ac- possessed it as Boots requested so by persuasion, cused is reprе- deceitful he, Moeller, sentation, that Boots would believe or inducement lured into the not an undercover narcotics officer. commission of a criminal act” If, however, is established. the minutes, Within parties the were arrest- predisposed defendant was to commit the During booking ed. at the Win- crime when encouraged by to do so Station, ner Police spoon cocaine necklace agent, the defense will fail because there and a cocaine sifter were taken from Moel- entrapment is no agents when merely Although possession, ler. in Moeller’s the offer the оpportunity defendant an property cocaine sifter was the of the indi- Thus, commit the offense. to decide this vidual from Pierre. subjective issue the intent of the defen- trial, jury After a Moeller was convicted dant should be jury, focused on the possession and distribution of cocaine. to-wit, was he performing intent on the times, appropriate At all defense counsel police criminal act with the furnish- moved for the dismissal charges of the ing opportunity, him an or was he an entrapment, law, because as a matter of committing innocent lured into existed. This the trial court refused to do. crime. Instead, entrapment the issue was left for Nelsen, 7-8, State v. 89 S.D. at 228 N.W.2d jury’s the resolution and were in- (citations omitted). at 147 When conflict- structed thereon. ing evidence origin exists as to the charged, intent to commit the crime the DECISION is for jury, I. Williams, 84 S.D. at 173 N.W.2d at DOES THE EVIDENCE REVEAL EN- 892, and when there is substantial evidence TRAPMENT AAS MATTER OF LAW? from which the jury may infer that WE HOLD THAT IT DOES NOT. originated criminal intent in the defendant’s mind, entrapment as a matter of law is not Entrapment is the “inducement of one to established. Id. commit a crime contemplated by purpose for the mere instituting components criminal “There are two to the en- proceedings against defense; him.” trapment State v. Wil- the defendant must

§75 police show inducement to commit testified for this employment of- fer, predisposed crime and that he was not procured would not have the cocaine specific commit act.” criminal State v. requested Thus, by Boots. presumably, Iverson, (S.D.1985). N.W.2d component first was established.2 principal The four inducements which As for the component, second the ab- appeals are locate the intent the State sence of a to commit the friendship, sympathy, offers of excessive specific act, ‍​‌‌​‌​​‌​‌‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌‌‌​‌​​‌​‌​​‌​​​‌​‌‍Moeller does not fair money, appeals amounts of to a narcot- so well. although Pacts reveal that ic’s Nagel, needs. State v. N.W.2d suggested pos- trade (S.D.1979). “In addition to show- prove session of parties were inducements, ing such the defendant must officers, not undercover narcotics ‘undue, prolonged per- also show that stated that he could cocaine and could pressures against him, sistent were exerted locally. responded it Moeller readily ... dangled this inducement was request expressed Boots’ and Moeller no him’[,] ‘played front of ... or that he was reservations procuring possessing about or upon’_” Nelsen, 10-11, 89 at S.D. 228 cocaine. Moeller quanti- discussed various (citations omitted). N.W.2d 148 In at de- procured ties that could and when ar- termining predis- whether a defendant was rested, possessed he spoon a cocaine and a posed act, specific to commit the hours, cocaine In sifter. a matter of Moel- surrounding the facts the transaction are procured cocaine, ler the Moeller’s and relevant are as several definite criteria Boots’ conversations revolved around il- such as sug- whether the defendant first use, legal drug and Moeller previously crime; gested the the defendant’s readi- marijuana distributеd Although to Boots. crime; ness to commit the the defendant’s Moeller stated that he never sold familiarity activity; with the criminal the cocaine, used the offenses for which he large possession supply defendant’s of a arrested, wit, was possession and distri- illegal alleged contraband before the en- substance, bution of a controlled do not trapment; ready the defendant’s access to require consume, use, that he or sell such a contraband; the and the ability defendant’s only require possess substance but he large quantity to collect a of contraband in and it deliver/transfer and this whаt Id., 10, a short time. 89 at S.D. Moeller did. N.W.2d at 148. case, Viewing the present light evidence the the as concerns the in- State, Johnson, component most to the ducement favorable de- fense, 616, conflicting the facts do reveal that an offer of N.W.2d at we hold that employment exceptional wage predisposi an was exists to Moeller’s dangled Therefore, in front of and Moeller Moeller tion to commit the crimes.3 the Boots, ap- sorry 2. The dissent states that it feel is obvious and that he did not deliver peals friendship, appeals sympathy, sympathy. and cocaine out of money easily offers of amounts are excessive government. Although attributable to the we nothing 3. The dissent states: "There is $5,000-a-month presume job California testimonial that Moeller record demonstrate money, an offer of excessive amounts of Moel- logistics knowledge drug had a detailed transactions, ler admitted at trial that never offered Boots techniques understanding any large amount of for the cocaine trafficking nor of record, and sale that the car and the California were to sell or cocaine.” The written contingent drug ap- however, deals. As for among things, other that Moel- reveals peals friendship sympathy, and the written language ler and was familiar culture record reveal Boots does not such. testified marijuana talked Moel- often about well, Boots, that he did not know Moeller gave distributed—marijuana ler — Moeller testified that he did not care for Boots inquired trading about his car for five very good and that Boots was not a friend. pounds arranged marijuana, and Moeller Additionally, Moeller testified that Boots did not accepted the idea of trade. friend, plead with him as a did not make him up obtaining possessing drugs, brought — -, 270, correctly granted, refused to rule trial court U.S. 106 S.Ct. (1985); ment existed as a matter of law. L.Ed.2d 225 and United States v. After crimes, Prairie, (9th Cir.1978). it was Moel- suggested 572 F.2d cases, however, brought ler’s activities that it to Other have held or intimat- fruition. crimes, ready conduct, Moeller was to commit the outrageous police ed that in an activity, familiar with the criminal entrapment setting, prosecution will bar be- ready drug, and he local access to the process cause of due spe- violations. See collected it within a few hours. Under writings in Hampton cial v. United circumstances, disposition these 425 U.S. 96 S.Ct. 48 L.Ed.2d 113 im- ability to commit the crimes were not (1976)(Powell Blackmun, Justices, con- planted unwary stаged in an innocent nor curring Brennan, Stewart, in judgment; performance. Entrapment, for his as a Marshall, Justices, dissenting); United law, matter of was not established and the (3rd Twigg, States v. 588 F.2d 373 Cir. properly trial court submitted the issue to 1978); Johnson, United States 565 F.2d jury. Based on the facts and the en- (1st Cir.1977), denied, cert. instruction, trapment jury found there (1978); 98 S.Ct. 55 L.Ed.2d 780 entrapment. was no Quinn, (8th United States v. 543 F.2d 640 Cir.1976); Archer, and United States v.

II. (2nd Cir.1973). 486 F.2d 670 WAS BOOTS’ INVESTIGATORY CON- bar, however, In the case at we do DUCT SO OUTRAGEOUS AS TO BAR police instigating not have violent crimes PROSECUTION OF MOELLER UNDER against persons third purpose for the DUE PROCESS CONSIDERATIONS? gathering evidence. police We do not have IT WE HOLD WAS NOT. instigating crimes gratuitously supply Russell, United States v. U.S. ing the criminal tools or devices. We do 423, 431-32, S.Ct. L.Ed.2d police instigating by sup not have crimes (1973), Supreme the United States plying the defendant with contraband to be day Court stated: “While we some police agents. sold to other We do not presented with a situation which the police instigating by gratui have crimes agents conduct of law enforcement is so tously supplying indispens the wares and outrageous process principles that due ingredients able when the defendants do absolutely would bar the not have the means or to obtain invoking judicial processes to obtain a con- police them on their own. We do not have viction, distinctly the instant case is not of instigating by furnishing crimes the fаcili (Citation omitted.) that breed.” operations. ties for criminal We do not language Based on this and the facts of police have instigating by complete crimes case, present Moeller contends Boots’ ly controlling enterprise the criminal instigating conduct in the crimes was so providing expertise the defen when outrageous prosecution as to bar his under dants do not have the know-how and can process due considerations. provide only minimal assistance. And we above-quoted language has police instigating been la- do not have crimes dicta, Dion, as through police beled see United States v. or violation of the law (8th Cir.1985), defendant’s, through 762 F.2d police cert. violation of a or cocaine, procured right and Moeller cocaine within a would fit in with Boots’ California friends drugs, matter of hours. An individual from Pierre who were involved in and that Moeller people, thought drug a list of which list was admitted into said he er; further, he knew a California deal- maybe evidence. This list noted individuals with and he could hoping drug drugs through whom she was she could to sell rid of some the California drugs for her. Moeller’s name was on it with dealer. This the thrust of evidence diminishes hopeful drug projected. knowledgе Finally, advocacy $720 of sales that Moeller had no or understanding the record reveals that Boots and dis- he was not deals and that predisposed cussed California that Moeller said he to distribute or cocaine. public’s, statutory- 3. Offers of constitutional excessive amounts mon- Thus, circumstances, rights. ey, under these although final we cannot condone Boots’ Appeals need, (not to the narcotics arrest, procuring tactics for we here). applicable cannot hold the here undercover activities recounting evidence, Without it is outrageous .to be so so as tо bar obvious all of first three induce-

prosecution process because of due viola- are easily ments govern- attributable to the tions. ment. Affirmed. Further, we have listed the criteria to be in determining considered whether the de- FOSHEIM, C.J., MORGAN, J., con- preexisting fendant had a intent: cur. 1. Did the defendant suggest first crime? J., HERTZ, WUEST, Judge, Circuit —The record Justice, completely devoid of

Acting Supreme Court dissent. this element. J., SABERS, having been a member 2. How ready was the defendant the Court the time this action was commit the crime? Court, participate. submitted to the did not up year, —For to a whole the defend- Agent’s ant refused all solicita- HERTZ, Acting (dissenting). Justice tions to sell or cocaine. I I dissent. would that entrapment find despite This the fact defendant ‍​‌‌​‌​​‌​‌‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌‌‌​‌​​‌​‌​​‌​​​‌​‌‍was was established as a matter law. already marijuana. a user of important It is at the very note outset Ready response police induce- that the facts this case are not in dis- ment? pute. application It is the of those facts ready, very light Agent’s —Not poses problem. the law that the real response endeavor to which obtain opinion majority admits idea that the year. continued a full almost originated to obtain cocaine clearly with 4. How familiar was with the dеfendant the State and agents. its With I this activity? wholeheartedly agree. majority, The how- —Defendant was familiar with differ- ever, concludes that the defendant a types marijuana, ent but there is no predisposition crime, to commit knowledgeable he was evidence that that this a jury. On cocaine, albeit, he did the basis of the as evidence detailed in necklace, spoon a coke a wear as record, trial I agree cannot con- this this evidence is not sufficient to alone clusion. show to co- distribute successfully entrapment, To establish caine. pointed majority, out two elеments in possession 5. Was the defendant of a required: are large illegal supply of contraband? 1. police The defendant must show in- —The not warrant such evidence does crime; ducement to commit the a conclusion. prior 2. That to this inducement he was ready 6. Did the defendant have access predisposed to commit the crimi- to cocaine? nal act. De- —No to indicate this. principal We declared four in- have Pierre, Dilley Cari fendant did call ducements locate the intent did she did who deal in government rather than the accused: some. have friendship, Appeals lаrge able to a 7. Was defendant collect Appeals sympathy, in a short time? quantity of cocaine only Q. —There trying a small amount You were peo- to undercover ple selling cocaine involved in the transaction and narcotics? belong

it didn’t to defendant. correct, A. That is sir. Boots, majority Agent indicates oth- Q. during year And you one never bars, observing er than Moeller at local did selling undercover only July, contact once when he narcotics, you? did drink, buy tried to Moeller a and then no No, A. sir. further contact until March of 1985. Agent talking admitted to Moeller and Agent testified: parents his buying about the car between Q. many you About how times did have 14,1985. Further, March and March personal prior contact with Moeller when he first came to Winner almost a April you actually 7th where have year before, Deputy Wilcox showed him a talked to him? picture being of Moeller as a sus- times, say perhaps A. I’d about sir. pected dealing drugs. Agent person- further testified he talked Agent Boots further testified that on ally with Moeller three times. Frank and March buy- was interested in Agent Esther Moeller testified Boots called ing Moeller’s car. At this same time he (Moel- and talked “many” to them times. asked Moeller twice to sell him sоme mari- own). phone ler did not have a of his juana refused, stating

Agent further testified that Moeller told in drugs. doesn’t deal he did not have or use cocaine. very day, next March Agent Boots testified: Agent agreed buy Moeller’s car for Q. Who made the first offer of the deal $2,200.00 and made a pay- down $100.00 you Kyle? deliver cocaine to from ment. very day On this same he not

IA. believe I informed Mr. promised $5,000.00 Moeller that job Moeller a month,

the reason I wanted Moeller, to obtain some but also his cousin Tim drugs was to make sure he wasn’t a advised that would leave for Califor- So, guess narcotics officer. I May Agent it nia on 12th. “pur- admitted he me, would be sir. sued” Moeller to sell him or intro- duce him somebody that did sell Moeller admitted he knew someone who might very day On the get Agent just be able to before the some cocaine. “bust” (April 1985), Agent Dilley, lady admitted Cari admits he reminded $5,000.00 Pierre, per that the furnished the cocaine month and set the California was still price per ounce, on. which $240.00 paid Dilley to Cari never receiv- —Moeller Moeller, Concerning friendship with ing any money whatsoever from this trans- Agent testified: action. Q. always friendly gentle- He was

Agent Boots further testified: manly you? to Q. You Kyle arrested in what month of A. Yes. ' year, what or were in involved that further admitted that he had arrest? sell, asked give Moeller to distribute or A. 4-7-85. controlled him substances to “as a friend.” ‍​‌‌​‌​​‌​‌‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌‌‌​‌​​‌​‌​​‌​​​‌​‌‍Q. later, Exactly year a you after ar- testimony clearly Moeller’s indicates he rived in town? was extremely pleasing Agent interested in close, Pretty yes, A. sir. keep in order to open. offer He testified? Q. During year period that one of time

you acting, Q. were as an undercover Bust came down on the 7th? officer in Winner? previously A. Yeah. He asked me to A. Yes. try somebody up, and line I but going ting I

wasn’t to do it until had that crimes which he persistently had re- figured I job offer. that I’d in fused to for fully cоmmit whole year. a good him and chances are he suggests The evidence that Moeller was nothing. fire me or wouldn’t ready willing not to and sell cocaine a “propitious opportuni- whenever Q. him going to do You were favor ty” testimony arose. The you getting something undisputed is because were during that going to sell that car? the course of almost a whole year, Moeller never any made offer to A. Yeah. sell or cocaine the Agent, to Q. California, go You intended to in- to they though even had seen each other or your to sell car? tended had been each other on numerous Yeah, just A. I wanted that five thou- during occasions that time. “propi- job. sand dollar there, opportunity” tious was certainly but Q. deliver cocaine You didn’t that never upon acted Moeller until after he him, of sympathy him out for large been offered sums of you? did his for employment automobile and in the A. a friend. Just as state of California. worthy It is of note that some- further Inducement commit an offense means time in the “summertime” of witness activity part affirmative on the of the Deputy said Beth Bachman she knew Wil- agent. Whereas conduct concerning cox and testified a conversation merely affording oрportunity she have with another indi- overheard to commit an offense does not constitute vidual. testified: She entrapment. The officer’s conduct should A. I him mention heard criminal, not be calculated “create” a good Kyle’s I’m a name. friend but rather to “catch” a act. I have known him awhile Here, Agent’s admission, by the own I just listened and so closer nothing “created” the criminal. There is thought said that he had that his the testimonial record to demonstrate that wife, Kyle had tried take out knowledge Moeller had a detailed his because were wife at the logistics drug transactions, an under- party same and if he found ever out standing techniques trafficking of co- that he’d him. caine, any predisposition nor of to sell or It is well to remember the statement Further, possess cocaine. was no there Sorrells v. United showing any prior dispositions (1932): S.Ct. 77 L.Ed. 413 most, possess or sell cocaine. At available, The defense record that Moeller user shows was a though the view the accused marijuana. well aware free, guilty go govern- but that marijuana, a user Moeller was permitted contend ment cannot pos- never did make an arrest for unlawful guilty govern- he is of a crime where Instead, Agent vigorously session. instigators are the of his officials period pursued over an extended conduct. time in order to substantiate the more seri- light Viewing evidence in the most charge ous Moeller suc- of distribution. State, appears there to be favorable cessfully badgering impor- resisted “predis- a lack of that Moeller was tuning part Agent, activity posed” possess and sell but on Agent exasperation no until the doubt in signifi- contrary, is abundant and there changed and offered and tactics excessive “predis- cant evidence he was simply money. unrealistic of This amounts posed.” is not a case where Moellеr initiated the beginning from to end played weakness sale. The initiative The on the See beguiled Agent. into came from the ex- of Moeller and commit- State’s 880 Kamrud, State

ample 188 Mont. The crimes with which Moeller was (1980), Grenfell, State v. 611 P.2d and charged and convicted were totally “manu- (1977), 564 P.2d Mont. where by Agent. factured” the State’s The Supreme Montana Court found Agent, himself, testified that the sole rea- ment as a matter of law on facts much less son he get drugs wanted Moeller to was so favorable to the defendant than in exists he could arrest having drugs. Moeller for Annot., case. See also: present Agent targeted The April Moeller in of (1975). A.L.R.3rd 145 April It took until per- 1985 to Williams, suade Moeller to obtain State v. cocaine. This at 84 S.D. Agent’s (1970), prove insistence so Moeller N.W.2d we said: could he, Moeller, Agent was not a narcot- Entrapment aas matter of law is not agent. clearly ics The record shows the established where there is substantial Agent set in motion his own scheme to bait evidence from which it be inferred unpredisposed an otherwise unsuspect- and the criminal intent to commit the ing having originated pos- into cocaine in his offense accused, in the mind of the added.) session at a (emphasis place certain time and so that Agent could arrest him. After opposite then also must be true. $2,200.00 favored Moeller with for an auto- Where the evidence is insubstantial then admittedly only $800.00, mobile worth entrapment is established as a matter of nonexisting offered him a job in California law. $5,000.00 month, per again re- Dion, In United States v. 762 F.2d 674 quested Moeller to sell him some (8th Cir.1985), comprehensive there is a Again Moeller refused to do so. Unsat- detailed development discussion of the isfied, Agent finally persuaded Moeller to the defense The Dion entrapment. arrange for a third drugs deal in court, citing Judge Sanborn the case of Agent, proviso with the that Moeller States, Butts v. United (8th 273 F. 35 must some of these at that Cir.1921), stated: prove time to he was not a agent. narcotics The first duties of the officers of the law As aptly defense counsel stated: “The prevent, punish are to not to crime. It is question of Kyle whether or not duty not their to incite to and create selling drugs replaced with the purpose crime for the prosecuting sole * * * question capable of: Is punishing it. It is unconscion- being possess drugs?” enticed to able, contrary public policy, and to the established law of the punish land to majority opinion placed great еmpha- man for the commission of an offense of sis on the statement: ‍​‌‌​‌​​‌​‌‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌‌‌​‌​​‌​‌​​‌​​​‌​‌‍(Agent) “After Boots the like of which he had never been crime, suggested the it was Moeller’s activ- guilty, thought deed, either or in brought ities that it to fruition.” Is this evidently never guilty would have been every not true in involving case the defense of if the officers of the law had not entrapment, jury ques- whether it be a inspired, incited, persuaded and lured tion or a law for the court? The attempt him to to commit it. majority point. Every person misses the Further, Dion quoted approval entrapment who bites on the bait case Lopez v. United 83 can “predisposed” be said to be by his (1963) S.Ct. 10 L.Ed.2d 462 that: subsequent activity response govern- However, ment The conduct with which inducement. a defendant’s the defense of entrapment is concerned is should not be the manufac- assessed as of turing of crime law the time when enforcement offi- he committed the crime as conduct, indicates, agents. majority cials and their predispo- Such but rather course, is far permissi- different from the sition in cases refers to the strategems ble involved in the detection state of mind of govern- a defendant before prevention of crime. agents any suggestion make that he United States shоuld commit the crime. Williams, (2nd 603, Cir.), cert. 705 F.2d the In of Matter the Estate of Donald

denied, 104 S.Ct. LINNELL, Deceased. (1983). L.Ed.2d 708 Nos. 15220. is part

This what the second of the sub- jective test is all The required about. Supreme Court of South Dakota. prior showing by defendant is “that to the (defendant) predis- inducement he Argued April posed to commit the act.” Decided June Agent far beyond providing went ordinary opportunity sale in an effort to Agent

ensnare Moeller. The admitted he

supplied plans the idea the crime. words,

In other the created the uncovering

crime rather than it. is, course,

There of no fixed formula

arriving at a decision as to whether is jury defense one for consid-

eration, or one law Every of for the court. judged peculiar

case must be on own its Ultimately,

facts. it comes down to a test trickery,

of fairness. persua- Where

sion, and deceit of the officer rules out

perception of concept, the fairness it is implanted

clear that such conduct the crimi- design defendant,

nal in the mind of the

then the court should act and bar the con-

viction. important

It is to remember that

presumption of innocence reason- proof

able doubt standard of are more than

platitudes given lip service.

my opinion, if the rule as presumption ‍​‌‌​‌​​‌​‌‌‌‌​​​​‌‌​​​‌​‌​‌‌​‌‌‌​‌​​‌​‌​​‌​​​‌​‌‍fairly properly applied

innocence case,

this acting reasonable minds fairly necessarily

the evidence would have a rea- guilt.

sonable doubt as to Moeller’s

Accordingly, I would hold that

ment has been established as matter

law conviction should be reversed. possession

This includes the conviction cocaine, since State’s

guilty by entrap- of unconscionable conduct

ping acting into conduit for so, being

the sale cocaine. This jury possession guilty

could not find him possessed only which he momenta- part

rily integral as an sale. hereby

I am authorized to state that Jus- joins

tice WUEST this dissent.

Case Details

Case Name: State v. Moeller

Court Name: South Dakota Supreme Court

Date Published: Jul 10, 1986

Citation: 388 N.W.2d 872

Docket Number: 15072

Court Abbreviation: S.D.