*1 STATE, NELSEN, Respondent Appellant N.W.
(228 2d 143) (File 26, 1975) No. Opinion filed March *4 Reade, Kabeiseman, Kabeiseman, & Brady, Light R. John
Yankton, for defendant and appellant. brief, Pierre, Gen., on the Wichser, Atty. A. Asst.
Robert Hosmer, State’s Pierre, F. Gen., Larry Sande, Atty. A.
Kermit Yankton, respondent. plaintiff for
Atty.,
WINANS, Justice. of three counts was charged
Defendant-appellant substance, Acid Lysergic a controlled distributing
unlawfully July of occasions separate on three
Diethylamide (LSD), witness, Brown, undercover a paid Keith
The State’s primary Defendant on LSD from purchased that had testified
agent, Yankton, South He had come and 17 of 1972.
July investigate of local authorities at the June, request
Dakota County. The arrest in Yankton and related activities abuse
drug from this investigation. resulted
of Appellant F. L. Scott were Sheriff supervised by Brown’s activities
Mr. the Division of Patterson of Agent County Special
of Yankton was over the LSD turned After purchase
Criminal Investigation. State who delivered it to Assistant (DCI) Patterson Agent at that
Chemist, Mr. trial Donald Frasch. Frasch testified that all three substances disclosed
chemical analysis addition, Brown, agent, the undercover In
contained LSD. one, and three as the purchased two State’s exhibits
identified Patterson, DCI. conveyed he had to Agent
substances which on all three counts of a verdict of guilty return of
Upon the Defendant Substance a Controlled Dispensing
Distribution each term on three-year
was the State Prison for sentenced to counts, concurrently. terms to run
the three as in the com- contained charge, maintains
Appellant charged he was him of what apprise
plaint, inadequate him because he was worked on He states that injustice
wifh. of his criminal alleged ascertain the nature exactly could not to mean interpret “injustice” we ambiguous,
conduct. Although deprived process he was of due contends that Appellant charged.
law of the offense fully particular informed being three separate on Appellant
The complaint alleged *5 distribute or feloniously, “willfully, unlawfully did
occasions substance, diethyla- acid Lysergic a to-wit: controlled
dispense * * * mide, all in violation of SDCL 39-17”. declares that:
Our State Constitution have the accused shall prosecutions “In all criminal * * * nature and cause of to demand the right him,-' a copy to have thereof”. against
the accusation VI, of Rights)
Art. Sec. 7 (Bill it is provided by
To effectuate this of our Constitution provision
statute that: if can
“The indictment or information is sufficient it
be understood therefrom: That the offense is in such a charged designated
(6) a understanding
manner as to enable of common person
to know what is intended.” SDCL 23-32-12(6)
The half standard imposed by other of the constitutional
due what is that must inform process requirements complaint
offense certainty: is with reasonable charged
“An information must a defendant with apprise him so
reasonable of the accusation certainty against
that he his defense and may prepare plead judgment
as a bar to for the same offense.” subsequent prosecution
State v. 85 S.D. 185 N.W.2d Long,
Does the before us the test “a complaint pass of allowing
person of common with to know “reasonable understanding” what he
certainty” is with? asserts that charged Appellant is
complaint defective because in it he is charged alternatively Thus, a controlled substance. distributing dispensing
contends is unclear as complaint exactly to what is him.
charged against This court cannot is agree. Distributing
defined another, as the delivery controlled (transfer) drug
while means deliver dispense a controlled to the (transfer) drug
ultimate user. See SDCL Whether or not the 39-17-44(6), (7), (8).
7 is of LSD case the ingested in the instant undercover agent or distributing either prohibits The statute importance.
incidental complete is The criminal conduct See SDCL 39-17-88.
dispensing. the later act and not offensive is the Delivery transfer.
upon and dis- buyer. Dispensing the by the substance of
ingestion because therefore, exclusive offenses mutually are not
tributing, a defendant leading the of part the same on involve conduct
they or dispensing involved in The conduct
to of statute. a violation transfer has the forbidden after diverges only
distributing
occurred.
We, therefore, against charge hold that the State’s did a controlled substance of or
Appellant distributing dispensing Rather, as to his him the nature of offense. alleged
not confuse n of the apprised charge the complaint Appellant to due
preciseness required satisfy process. erred in that the trial court
The Defendant further contends Defendant’s instruction to give proposed pertaining
refusing by defense been defined this entrapment.
the defense of This has
Court as: crime not inducement of one to commit a
“[T]he by instituting him for the mere of
contemplated purpose Williams,
criminal him.” v. against State proceedings
1970, 547, 889, 551, 84 S.D. N.W.2d 891. of under
If an is use alleged apprehended by offender applicable:
cover the defense is agents, entrapment with the originates,
“When the criminal design
accused, but is mind of conceived the the government
officers, deceitful and the accused is by persuasion, or inducement lured into the commission
representation, States, 1932, a criminal v. United act”. Sorrells 210, 413, L.Ed.
287 U.S. 53 S.Ct. Williams, adopted
In Court the supra, State (cid:127) which seeks to determine
Sorrell’s test for majority crime Under the
where intent the originated. the commit whether the test decide duty of intent” it is the
“origin jury’s words, commit the crime. In other predisposed
defendant the criminal intent is traceable to the evidence show that
does Where the Agent? genesis to the Government is in mind criminal act
intent to commit is deceitful persuasion,
Government “and accused Agent into the commission of or inducement lured
representation, *7 If, however, defend- is established. the entrapment
criminal act” crime when to do encouraged
ant was commit the predisposed fail there is no defense will because by
so an the agent, the an merely oppor- when offer defendant
entrapment agents McGranahan, Iowa,
tunity
commit
the offense. State
States,
Cir.,
88;
10
v. United
206 N.W.2d Wood Thus, to decide this issue the
See also Annot.
subjective intent the to-wit, on the criminal act performing he intent
jury, an him or was he opportunity,
the police only furnishing lured a crime. committing
innocent into person soundly public defense is entrapment grounded
The in Sorrells: majority’s position to the
policy. According available, that not in the view the
“The defense is free, govern- but that the may
accused though' guilty go that he is of guilty
ment cannot be to contend permitted are the insti-
a crime where the officials government States, Sorrells v. United supra, of his conduct.”
gators
If the is entrapped, defendant found for the guilty not
reason he has that violated statute it no “because cannot be
supposed that intended Congress the letter of its
enactment should be used to such support perversion of its gross Sorrells,
purpose.” at 53 S.Ct. 216. The supra, at entrapped is, therefore, innocent of crime charged.
There are components required two to successfully
establish an defense: defendant must show police crime,
inducement to commit and prior to this
inducement he was not to commit the predisposed criminal act.
How is predisposition defendant’s or lack of it to be proven Williams,
at trial? In State v. this Court supra, specifically defendant, “cannot complain
reaffirmed in Sorrells that language his own conduct
of an into appropriate searching inquiry In this “searching inquiry” of predisposition”. pursuit evidence
federal allow the to introduce prosecution prior courts
criminal and criminal to show a reputation preexisting conviction in¿>nt. States, 1958,
criminal v. United 356 U.S. See Sherman
369, 375, 819, 2 78 S.Ct. L.Ed.2d 848. Russell, 1973, 423, 433,
In United States v. 411 U.S. 1637, 1643, 366, 374,
S.Ct. L.Ed.2d Court Supreme
stated that “the defense is not of a (of entrapment) constitutional free, therefore, is to select its own stand
dimension”. This Court Because the of evidence of prejudicial
ards for this defense. effect far or criminal is out reputation devastasting, convictions
prior value; and believes that its because Court
weighing probative conduct, be his and not on present
the defendant should tried for crimes, basis evidence of convictions should not past prior issue As stated predisposition.
be introduced on the Justice . Frankfurter, “Past crimes do forever outlaw the criminal.” *8 S.Ct., States, 383, at
Sherman v. United 356 U.S. 78 supra,
819, at 826.
In this we the espousing approach join Court of Supreme which
California stated that: had defendant committed previously
“[E]vidence
similar had crimes or the of reputation in being engaged
the commission of such crimes or was suspected by the of criminal
police activities is not admissible on the issue ” entrapment. Benford, (emphasis supplied) People of 1, 11, 53 Cal.2d 345 P.2d 935.
It is to note that evidence important of prior convictions criminal reputation he if should admitted it is admissible on
independent The grounds. entrapment may defense be used
as a shield the prevent to admission of evidence admissible upon unrelated to the defense. As stated
grounds by the court in People
v. Marshall: rule does not bar evidence of other crimes if ad-
“[T]he defense, missible upon grounds unrelated to that (en- * * * trapment) To hold otherwise would a permit
10 evidence, relevant, bar to independently
defendant 226
merely by claiming entrapment.” (1964) Cal.App.2d
243, 245, 887, 888. Cal.Rptr. facts the
An particular surrounding examination of the in is whether a question adequate
transaction disclose had
defendant a criminal intent. definite preexisting Several others,
criteria, are available to aid in among making
determination.1 Did defendant first the crime?2 suggest How was the
ready Ready defendant to commit the crime?3 response to a
police certainly inducement is indicative of predisposition to
commit a criminal act. familiar was the How defendant with the
criminal Was defendant of a activity?4 possession large supply
of prior contraband Did illegal alleged entrapment?5
defendant ready have access to contraband?6 Was able to
colle'ct a in a large quantity of contraband short time?7 In
addition, the out- defendant’s and admissible testimony in-court course, should, if relevant to
of-court statements be examined of his intent. origin
The are criteria foregoing designed mainly locate however, are,
intent in the defendant. There methods which
when employed by government agents may indicate that lured them the crimes’ into commission. on have dealt
Decisions with four induce principal which may
ments locate the intent rather than government
the accused: friendship, offers excessive appeals sympathy,
amounts' of and need. In money, to the narcotic’s appeals helpful locating criteria see: and collection of intent For discussion California, Duncan, Entrapment The In Defense Dowler (1968); Bancroft, Trap Affirmative Administration of the Hast.L.J. (1963). Entrapment, 31 U.Chi.L.Rev. and the Doctrine of *9 27, 793, Sweeney, 1049. People Cal.Rptr. v. 55 9 357 P.2d
2. Cal.2d See Harris, 613, Cal.Rptr. People Cal.App.2d 210 26 850.
3. v. See 329, Neal, 13. People Cal.App.2d v. 120 261 P.2d
4. See 651, Diaz, Cal.Rptr. People Cal.App.2d v. 206 24 367.
5. See Burnett, 453, Cal.App.2d Cal.Rptr. 22 320. People v. 204
6. See 329, Neal, 13. People Cal.App.2d 120 261 P.2d
7. v. See
11 addition to such the defendant showing inducements must also “undue, that or persistent pressures
show were exerted prolonged * * * him, in front of dangled that this inducement against 143, Hall, 297, 145, that Ill.2d N.E.2d People
him”. v. 25 185 235, Gonzales, Ill.2d 184
he was v. 25 “played upon”, People 833,
N.E.2d 834.
A threshold which be answered question must before
merit of the is reached is “whether the defense instant contention entrapment is available to denies that he who Williams, at charged”.
committed offense N.W.2d supra, The Williams court was not with that question. confronted however, case,
Defendant in the instant and also pled guilty defense, an
offered thus the issue. entrapment raising States, 435, 452, v.
In Sorrells United 287 U.S. supra, 210, 216,
S.Ct. United States held that Court Supreme defense
entrapment plea mutually and a of not are not guilty
exclusive. Even though defendant’s crime charged conduct fits the still may be not Chief guilty. stated: Hughes Justice government cannot be permitted to contend that
“[T]he
he is of a crime guilty where the officials government
are the instigators his conduct.”
The States, 1962, court Hansford United 112 U.S.App. 359, 219, 221,
D.C. 303 F.2d held:
“The defenses were alternative but not inconsistent. It
was consistent with defendant’s denial of the transaction if urge believed did occur the jury govern- it
ment’s as how it occurred indicated entrap- evidence
ment.”
Further, Perez, 1965, People v. 62 Cal.2d 326, 329, Cal.Rptr. 401 P.2d Chief Traynor Justice Court, bench,
the California Supreme for a unanimous speaking
stated:
“We contention disagree Attorney General’s invoke defense of a defendant
12 the criminal acts committing charged.
must admit * * * follow, defendant must it does not that defendant, A the defense. for
admit to establish guilt element of deny every committed may
example, that such acts as properly
the crime charged, yet allege induced law enforcement of- by
he did commit were * ** Moreover, may properly a defendant ficers. unlawful con- police
contend that the evidence shows entrapment conceding without amounting
duct a reasonable doubt. When guilt beyond
it also shows his conduct, has a
the evidence does show such court ** its effects out of the trial to root duty an must to utilize guilty
To hold that defendant plead in would be to a course equate participation defense
entrapment We, therefore, the defense with hold that guilt.
of conduct legal guilty plea. be in a not
may conjunction used by presented appel- finally precise question
We reach the to-wit, contention, giving justified trial judge
lant’s three question In deciding on entrapment?
an instruction
rules are relevant:
First, where evidence is in to the origin conflict as the offense the question
the intent to commit Williams, v. 84 S.D.
should to the State go jury. Shearer, v. approval
N.W.2d This rule is cited with State
86 S.D.
Secondly, previously is no entrapment
when narcotics offer the an merely opportunity agents McGranahan, v.
to commit State v. supra; offense. Wood States,
United
Finally, purchase People Jones,
undercover does not constitute agent entrapment. 396; States, 334, 210 N.W.2d Sherman v. United Mich.App.
supra. case of the instant to the record precedents these
Applying where the intent commit is no conflict as to
discloses that there The record substance arose. a controlled distributing crime of instigation. undue„police no
evidences *11 distri and convicted with charged was
Petitioner distinct and separate on three a substance controlled
buting of Undercover direct examination Taken from
occasions. Hosmer, distributions these Attorney Brown State’s
Agent manner. following in the
occurred distribution:8
The first us next? happened Tell what
“Q. asked me if I Mr. Nelson p.m.
A. At 6:40 approximately acid. him out and some buy
would help [******] * * * about to his question did you respond How Q. acid?
purchasing he it. wanted for
A. I asked him how much What, if did anything, say?
Q.
[******] and acid and that for A. He told me he had mescaline I of each.” have one
$5.00 could the crime originated
It is clear to commit intent more than present defendant. The did agent nothing fruition. through his intent carry for defendant
opportunity
The distribution: second circumstances were con- tell what the you Would us
“Q. him your
cerning meeting (defendant)? purchase me that he going
A. Mr. Nelson told me if I like for him to get would
some acid ask(ed)
some.
[******] substance; drug “deliver” or deliver a controlled 8. “Distribute” means to actual, drug attempted transfer of controlled means the constructive 39-17-44. or substance. SDCL there
Q. Now was between him any you conversation acid
concerning before statement was made?
A. I don’t believe so.”
The third distribution in the of the lobby occurred Agent’s
hotel: Will
“Q. you tell us what ensued when he sat down?
A. He asked me if I would him help out as he had some
acid he needed to sell because he needed some money.”
Petitioner contends that the record contains no evidence of
defendant’s to the crime. The predisposition commit foregoing from the record indicate such
excerpts plainly was not the
case. It was by stated Chief Warren “a be line must Justice drawn between trap the for the and unwary innocent the for trap States,
the unwary 369, criminal.” Sherman v. United 356 U.S.
372, 819, 78 S.Ct. 821. In this case it clearer than usual that is did
government agents engage entrapment; they merely on an
sprung trap offender. unwary
Appellant’s Brown, final contention is that Keith the under-
cover agent, is an accomplice of defendant commission of
this crime so as require to his corroboration of testimony.
Appellant directs us v. Johnson, to State S.D. held,
139 N.W.2d which “An is one who is accomplice
liable to prosecution for the charged identical offense against * * *.” Under this standard it is contended that is an
Brown accomplice.
SDCL provides: 23-44-10
“A conviction cannot be had upon the testimony of
an accomplice unless he be corroborated such by other
evidence as tends to connect defendant with the offense,
commission of the and the corroboration is not if
sufficient it merely shows the commission of the of-
fense, or the circumstances thereof.”
If is an Brown accomplice, his be testimony would insufficient for
a conviction. 39-17, and Sub Drugs Chap. in SDCL
Two statutes in a acting legal Brown Control, evidence that Agent
stances accomplice. as defendant’s and not
capacity provides:
SDCL 39-17-120 may be to -39-17-119
“Funds established pursuant § making pur- confidentially purpose for
expended and which substances drugs
chases and acquisitions are when purchases
are under this such chapter, illegal chapter.” under this obtaining convictions
necessary provides:
SDCL 39-17-121 may 39-17-119
“Funds established pursuant § confidentially employ special
further be expended the purpose their for expenses, salaries
agents, pay law enforce- undercover assistance local
of providing of this
ment officials in evidence of violations gathering thereunder, obtaining con-
chapter, arrests making
victions.” of illicit purchases drugs
Pursuant to the statutes foregoing be for the
may purpose gathering made undercover agents Under standard
evidence of violations of 39-17. Chapter *13 Brown was not
enunciated this Court in by Johnson, supra, to make the he was authorized statute
accomplice by because did. which he
purchases
Affirmed. DOYLE,
DUNN, C. concur. J., J.,
WOLLMAN, concurs J., specially.
COLEB, concurrence. J., joins special
WOLLMAN, specially). (concurring Justice I defendant’s conviction should be
Although agree
affirmed, is merit in defendant’s I believe that there contention
that the separate information two offenses. charged
SDCL 39-17-44 that: provides
“* * * actual, ‘Deliver’ or means (6) ‘delivery’
constructive, or transfer of a attempted controlled drug
or substance whether or not there exists an rela- agency
tionship. ‘Dispense’ means to deliver a controlled or
“(7) drug
substance to the ultimate user or human research sub-
ject, including or packaging, labeling, compounding
necessary prepare the substance for such delivery,
a is one ‘dispenser’ who dispenses. ‘Distribute’
“(8) means to deliver a controlled drug
or substance. ‘Distributor’ means a person who delivers * * * a controlled or substance. drug medicine,
“(17) ‘Practitioner’ means a doctor of
osteopathy, podiatry, dentistry, or veterinary medicine
licensed to practice their profession, pharmacists li- assistants, censed to their practice profession; physician’s
certified to their practice em- profession; government
ployees within the acting scope their employment;
and persons permitted by certificates issued the de- by distribute,
partment conduct dispense, research with to, or
respect administer a substance by controlled * * * chapter. ‘Ultimate
“(20) user’ means a who person lawfully
possesses controlled or substance drug for his own use
or for the use aof member of his household or for ad-
ministration to an animal owned by him or a mem-
ber of his household.” provides
SDCL 39-17-80 that:
“Practitioners shall be sub- registered dispense II they
stances Schedules IV if are authorized through under the law state.” dispense of this
SDCL provides 39-17-88 that: as
“Except authorized this it shall be chapter, any manufacture,
unlawful for to distribute, or person a
dispense substance controlled under this chapter, or to
possess manufacture, distribute, with intent to dis- a
pense, substance controlled under this chapter.” (em-
phasis added) the,
It seems obvious to me that the intended that legislature
unlawful distributing of controlled dispensing substances offenses,
should be considered as to separate designed prohibit
different of criminal From types activity. the context of the
statutes, would the it that unlawful appear prohibition against
distribution was such designed apply to to situations as defend- case,
ant’s the whereas unlawful prohibition against dispensing
was to reach in which those cases designed person otherwise
entitled to deliver a an lawfully controlled to ultimate user drug
did so under circumstances making dispensing such unlawful. defective, the
Although information probably technically
defendant did not demur it on to the that it stated ground more offense,
than one as he was entitled to do under SDCL I would hold
23-36-8(3). that he thus waived any objection Hanson,
information on that State v. S.D. ground. instructions, Moreover,
N.W. court’s though certainly not cases,
a model to be in other drug followed substantially instructed the defendant was jury that with the unlawful distribution of a controlled substance. being charged
I with the that did agree majority opinion trial court
err in refusing give instruction on The record entrapment.
discloses that there was no evidence state’s undercover had any in manner
agent attempted entrap defendant. Because
this is the sole issue that we need to decide regarding question I do not the remainder of the entrapment, join majority
opinion’s advisory statements defense. regarding be
There will time deal with these when enough questions they
are properly presented to us.
I with the agree majority opinion’s the state’s holding
undercover was not an agent accomplice. I am authorized to state that joins COLER Justice concurrence.
special