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No. 12574
I N THE SUPREME COURT O THE STATE O MONTANA F F

1973

THE STATE O MONTANA, ex re1 F CHARLES E. HAMLIN, J R . , Relator,

THE DISTRICT COURT O THE FIRST JUDICIAL F DISTRICT O T E STATE O MONTANA, i n and F H F F o r t h e County o f Lewis and Clark, and t h e HONORABLE PETER G. MELOY, P r e s i d i n g Judge, Respondents.

ORIGINAL PROCEEDING : Counsel of Record: For R e l a t o r : Robert J . S e w e l l , J r . , argued, Helena, Montana For Respondents: Thomas F. Dowling, County A t t o r n e y , Helena, Montana L e i f B. Erickson, Deputy County A t t o r n e y , a r g u e d , Helena, Montana

Submitted:

September 28, 1973

Decided: ~ C 9 T Filed :

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M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court.

This i s an o r i g i n a l a p p l i c a t i o n f o r supervisory c o n t r o l t o review and annul an o r d e r of t h e d i s t r i c t c o u r t r e f u s i n g t o dismiss a criminal charge a g a i n s t r e l a t o r . Relator i s Charles E. Hamlin, J r , , a g a i n s t whom an Informat i o n was f i l e d i n t h e d i s t r i c t c o u r t of Lewis and Clark County before t h e Hon. P e t e r G, Meloy, d i s t r i c t judge. R e l a t o r was

charged with t h e criminal s a l e of LSD, a dangerous drug, on May 30, 1973. Relator moved t o dismiss t h e Information on t h e ground A t t h e hearing on t h e motion,

of entrapment a s a matter of law.

r e l a t o r examined M e r r i t t E v e r e t t , a deputized undercover agent of t h e s h e r i f f ' s o f f i c e , whose testimony furnished t h e f a c t u a l background of events leading t o t h e a r r e s t and charge a g a i n s t relator. E v e r e t t t e s t i f i e d t h a t he came t o Helena on May 29, 1973, a t t h e r e q u e s t of t h e Lewis and Clark County s h e r i f f ' s o f f i c e t o a s s i s t with t h e drug problem. Deputy S h e r i f f DeBree discussed

t h e drug problem with E v e r e t t and showed him a l i s t of drug d e a l e r s and pushers i n Helena, some mug s h o t s i d e n t i f y i n g them, and was given t h e names of some of t h e places t h a t should be checked out f o r i l l e g a l n a r c o t i c s a c t i v i t y . Neither r e l a t o r ' s name n o r

p i c t u r e was contained t h e r e i n , nor was r e l a t o r discussed i n any of t h e conversation. During t h e l a t e afternoon and evening of May 29 E v e r e t t checked two l o c a t i o n s i n Helena f o r i l l e g a l drug a c t i v i t y without r e s u l t and f i n a l l y , a t t h e suggestion of Deputy S h e r i f f Debree, went t o a b a r i n East Helena a r r i v i n g t h e r e about 12:45 a.m. on May 30.
A t no time up t o t h i s p o i n t had r e l a t o r ' s name been men-

tioned nor had E v e r e t t met r e l a t o r . S h o r t l y a f t e r a r r i v i n g a t t h e East Helena b a r E v e r e t t went over t o a t a b l e where r e l a t o r was s i t t i n g , bought him a d r i n k , and asked him i f he knew where E v e r e t t could g e t some ''stash". Relator

answered, "yes, I can make a phone call, maybe I can get you a couple lids of marijuana. I I Relator went to a pay phone in the

bar, made a phone call, returned to the table and told Everett there was nobody at the house he called. Everett bought relator another drink. Everett said nothing.

Relator then said, "I know Everett said

a place we can go that they might have some. 11 "All rightf1, relator said "~ollowme".

Everett told relator what

motel he was staying in and each drove his respective car to this motel. Relator parked his car there, got in ~verett's car and

directed him to a house on Rodney where they might possibly get

On the way there relator named another place they were could probably get some dope, if they/ unsuccessful at the house
some dope. on Rodney. Everett said that would be all right.

They arrived at the house on Rodney street at about 2:35 a.m. They got out of the car, knocked on the door and asked the man who answered if he had anything to smoke or weed to sell. said no, but he had some acid. The man

Relator introduced Everett to this

man, Everett paid him $2.00, got a pill, asked for a drink of water and pretended to take the pill. Other persons in the room The man who originally

appeared "starry-stoned on acid" to Everett.

answered the door asked if anyone else wanted any more acid and everybody, including Everett, said "yes". Relator and the man

left the house, returned about ten minutes later, and distributed some acid to the others, including Everett. Everett and relator left the house about 5 : 3 0 a.m. and returned to the motel where Everett was staying and where relator's car was parked. Later in the morning relator returned armed to

~verett's motel room, Everett pulled out his pistol, ordered relator to lie on the floor, and placed him under arrest. On the basis of this testimony, Judge Meloy entered an order denying relator's motion to dismiss the Information, which included a rather detailed rationale of his decision. Here, we note that

numerous "facts" are stated in relator's brief which are not substantiated by the record before us a.nd therefore cannot be considered by this Court.

R e l a t o r then f i l e d t h e i n s t a n t proceedings i n t h i s Court seeking supervisory c o n t r o l t o review and annul t h e o r d e r of t h e d i s t r i c t court. The matter came on f o r adversary hearing b e f o r e at t h i s Court andlthe conclusion thereof was taken under advisement. The s i n g l e i s s u e f o r determination i s whether t h e Information should be dismissed on t h e ground t h a t t h e defense of entrapment has been e s t a b l i s h e d a s a matter of law.

A t t h e o u t s e t w e observe t h a t any defense capable of d e t e r mination without t r i a l of t h e general i s s u e s may be r a i s e d before t r i a l by motion t o dismiss. Section 95-1701, R.C.M. 1947. The

s t a t e concedes t h a t entrapment, i f e s t a b l i s h e d , i s a complete defense t o t h e charge a g a i n s t r e l a t o r . Relator acknowledges t h e

t r u t h of E v e r e t t ' s testimony f o r t h e purpose of t h e motion. Neither p a r t y c o n t e s t s review of t h e d i s t r i c t c o u r t ' s o r d e r by supervisory c o n t r o l . W hold t h a t E v e r e t t ' s testimony does n o t e s t a b l i s h entrapment e a s a matter of law. Reduced t o i t s e s s e n t i a l s , t h e testimony

simply shows t h a t Everett bought r e l a t o r a couple of d r i n k s , inquired i f r e l a t o r knew where Everett could g e t some n a r c o t i c s , and followed r e l a t o r ' s lead t h e r e a f t e r .
A c a s u a l o f f e r t o buy

unaccompanied by pleading, begging o r coercing of t h e accused does n o t c o n s t i t u t e entrapment. 499 P.2d 802, 29 St.Rep. 627. S t a t e v. Harney, Mont - .
-9

Everything t h a t happened a f t e r t h e

i n i t i a l s o l i c i t a t i o n i n t h e East Helena b a r was conceived and i n i t i a t e d by r e l a t o r with no more than passive p a r t i c i p a t i o n by E v e r e t t , culminating i n t h e procuring and d i s t r i b u t i o n of LSD p i l l s t o t h e occupants of t h e house on Rodney s t r e e t by r e l a t o r and another

.

Relator argues t h a t where, a s h e r e , t h e law enforcement o f f i c e r s have no p r i o r knowledge o r suspicion t h a t an i n d i v i d u a l has a propensity t o commit a dangerous drug offense and implant t h e idea of committing such crime i n h i s mind, they a r e i n f a c t inducing him t o commit a crime he had no i n t e n t i o n of committing

thereby e s t a b l i s h i n g t h e defense of entrapment.

Whatever may be

s a i d of t h i s contention a s an a b s t r a c t statement of t h e law, t h e testimony h e r e f a l l s f a r s h o r t of e s t a b l i s h i n g a s a matter of law t h a t E v e r e t t implanted t h e idea t h a t r e l a t o r and another should procure and s e l l LSD p i l l s t o himself and o t h e r occupants of t h e house on Rodney s t r e e t i n t h e e a r l y morning hours of May 30. W r e p e a t t h e t h r e e e s s e n t i a l s of t h e defense of entrapment: e in (1) Criminal i n t e n t o r design o r i g i n a t i n g / t h e mind of t h e p o l i c e o f f i c e r o r informer; (2) absence of c r i m i n a l i n t e n t o r design o r i g i n a t i n g i n t h e mind of t h e accused; and (3) l u r i n g o r inducing t h e accused i n t o committing a crime he had no i n t e n t i o n of committing. S t a t e v. Karathanos, 158 Mont. 461, 493 P.2d 326. I n the

i n s t a n t c a s e , t h e establishment of such defense must await t r i a l and r e s o l u t i o n by t h e j u r y of t h e f a c t u a l i s s u e s of i n t e n t and inducement under proper i n s t r u c t i o n s . Because t h i s matter i s returned t o t h e d i s t r i c t c o u r t f o r j u r y t r i a l , a f i n a l matter r e q u i r e s comment. To t h e e x t e n t t h a t

t h e r u l i n g of t h e d i s t r i c t c o u r t may be i n t e r p r e t e d t o i n d i c a t e t h a t f o r c e o r coercion i s required t o e s t a b l i s h entrapment, t h e opinion accompanying t h e r u l i n g should be c l a r i f i e d .

A luring

o r inducement of t h e accused t o commit a crime he had no i n t e n t i o n of committing, whether by f o r c e and coercion o r by o t h e r means, coupled with t h e o t h e r requirements of Karathanos i s t h e c o r r e c t r u l e t o be followed i n t h e t r i a l of t h i s case. The a p p l i c a t i o n f o r supervisory c o n t r o l i s denied.

Justice

We Concur:

Hon. R. D. McPhillips, District Judge, sitting for Justice John Conway Harrison.



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Montana Law