STATE v KAMRUD
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NO. 79-63 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980 THE STATE OF MONTANA, Plaintiff and Respondent, VS . ROBERT A. KAMRUD, Defendant and Appellant. Appeal from: District Court of the Fourteenth Judicial District, In and for the County of Wheatland, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Moses, Tolliver & Wright, Billings, Montana Stephen C. Moses argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mark Murphy argued, Assistant Attorney General, Helena, Montana David R. Barnhill argued, County Attorney, Harlowton, Montana Submitted: March 24, 1980 Mr. ~usticeGene B. Daly delivered the Opinion of the Court. ~efendant Robert A. Kamrud appeals from his conviction, following a jury trial, of the offense of criminal sale of dangerous drugs. On March 9, 1979, John Nelson and Gary Gill were employed as undercover deputy sheriffs of Wheatland County to investigate possible drug sales and drug use in Harlowton, Montana. They set up a trailer at Clark's Trailer Court on a space next to Lhe defendant's trailer and became friendly with the defendant. The officers assumed fictitious names, displayed and used marijuana, and also held parties to ingratiate themselves with persons suspected of selling or using illegal drugs. Nelson and Gill had obtained marijuana from Wheatland County Sheriff William Duncan as a part of their cover. They manicured this marijuana and made it available for smoking to some persons invited by them to parties at their trailer. Defendant attended one such party on March 10, 1979. Another party was had at the undercover officers' trailer during the early morning hours of March 17, 1979, after the bars had closed. Defendant did not attend this party, although he did appear at the door very briefly to recover a bottle of whiskey he had previously left at the officers' trailer. Officer John Nelson testified on cross- examination by defense counsel that at about 3:05 a.m. that morning, as the defendant was leaving with his bottle of whiskey, Officer Gary Gill approached the defendant and asked him if he could supply Gill with some "stuff." was supplied. None Nelson did not personally witness this conversation. At the time of the hearing on defendant's pretrial motions, Officer Gary Gill testified to the same e f f e c t , b u t he d i d n o t t e s t i f y a t t r i a l . Defendant t o o k t h e s t a n d a t t r i a l and t e s t i f i e d t h a t a f t e r r e c o v e r i n g h i s b o t t l e of whiskey, h e went back t o h i s camper t o have some d r i n k s w i t h a woman-friend. Defendant made no mention i n h i s t e s t i m o n y o f any c o n v e r s a t i o n w i t h G i l l i n which G i l l approached him f o r d r u g s a t t h a t t i m e . L a t e r on t h e 1 7 t h , a t a p p r o x i m a t e l y 11:30 a . m . , the d e f e n d a n t and a g i r l f r i e n d s t o p p e d b r i e f l y a t t h e t r a i l e r o c c u p i e d by Nelson and G i l l and had a s h o r t c o n v e r s a t i o n w i t h them. Nelson t e s t i f i e d t h a t a t t h a t t i m e h e h e a r d d e f e n d a n t , i n h i s p r e s e n c e , a s k G i l l i f h e s t i l l wanted some d r u g s , t o which G i l l responded t h a t t h e y would s e e t h e d e f e n d a n t l a t e r t h a t a f t e r n o o n a t h i s home. G i l l testified t o t h e same e f f e c t d u r i n g t h e h e a r i n g on d e f e n d a n t ' s pret r i a l motions. The d e f e n d a n t and h i s g i r l f r i e n d c o n t r a - d i c t e d t h i s testimony, saying t h a t drugs w e r e n o t discussed during t h i s conversation. A t a p p r o x i m a t e l y 4:20 t h a t afternoon, according t o N e l s o n ' s t e s t i m o n y , h e and G i l l went t o d e f e n d a n t ' s t r a i l e r , where G i l l r e q u e s t e d some " s t u f f " and d e f e n d a n t g a v e him a v i a l c o n t a i n i n g 1.8 grams of m a r i j u a n a . t o t a k e any money. Defendant r e f u s e d G i l l ' s t e s t i m o n y a t t h e h e a r i n g on p r e t r i a l motions w a s s i m i l a r . Defendant d e n i e d t h a t t h e o f f i c e r s came t o h i s t r a i l e r house t h a t a f t e r n o o n o r t h a t h e s o l d o r gave them any d r u g s . He t e s t i f i e d t h a t h e s p e n t t h e a f t e r n o o n c h e c k i n g h i s t r a p l i n e and h a v i n g a b e e r w i t h h i s g i r l f r i e n d i n t h e Argonaut Bar u n t i l h e r w o r k s h i f t began, and t h e n d r o v e home and went t o bed and s l e p t t h e r e s t of t h e day. On March 27, 1979, d e f e n d a n t R o b e r t A. ~ a m r u dw a s charged i n t h e D i s t r i c t Court, Fourteenth J u d i c i a l D i s t r i c t , Wheatland County, Montana, w i t h t h e crime of c r i m i n a l s a l e of dangerous d r u g s i n v i o l a t i o n of s e c t i o n 45-9-101, MCA. The i n f o r m a t i o n c h a r g e d t h a t on March 1 7 , 1979, a t a p p r o x i m a t e l y 4:30 p.m. i n h i s t r a i l e r house a t Harlowton, Wheat- l a n d County, Montana, t h e d e f e n d a n t " R o b e r t A. Kamrud g a v e away t o Gary L. G i l l a q u a n t i t y of d a n g e r o u s d r u g s a s def i n e d i n S e c t i o n 50-32-101, MCA, 1979, t o - w i t : marijuana, a C l a s s I drug." On J u n e 12, 1979, t h e d e f e n d a n t ' s a t t o r n e y f i l e d v a r i o u s p r e t r i a l m o t i o n s , i n c l u d i n g a motion t o d i s m i s s t h e i n f o r m a t i o n on t h e grounds of e n t r a p m e n t . h e l d on t h e s e m o t i o n s on J u n e 2 1 , 1979. A h e a r i n g was Defendant made t h e c o n t e n t i o n t h a t e n t r a p m e n t was e s t a b l i s h e d a s a matter o f law by t h e a l l e g a t i o n s c o n t a i n e d i n t h e S t a t e ' s a f f i d a v i t of probable cause f i l e d i n support of i t s a p p l i c a t i o n t o f i l e t h e i n f o r m a t i o n and by t h e e v i d e n c e p r e s e n t e d a t t h e h e a r ing. The D i s t r i c t C o u r t d e n i e d d e f e n d a n t ' s motion i n a n o r d e r f i l e d J u n e 25, 1979, s t a t i n g t h a t e n t r a p m e n t had n o t been e s t a b l i s h e d a s a matter of law b u t t h a t i t would p r e s e n t a q u e s t i o n of f a c t f o r t h e j u r y . Kamrud p l e a d e d n o t g u i l t y and was t r i e d b e f o r e a j u r y . H e was found g u i l t y and w a s s e n t e n c e d t o f i v e y e a r s i n t h e Montana S t a t e P r i s o n . A p p e l l a n t p r e s e n t s s e v e r a l i s s u e s on a p p e a l b u t w e need c o n s i d e r o n l y one: Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g d e f e n d a n t ' s p r e t r i a l motion t o d i s m i s s on t h e grounds t h a t e n t r a p m e n t w a s e s t a b l i s h e d a s a m a t t e r of law? A s a preliminary matter, the S t a t e urges t h a t defendant i s p r e c l u d e d from a s s e r t i n g t h e i n c o n s i s t e n t d e f e n s e s of (1) e n t r a p m e n t c o u p l e d w i t h ( 2 ) a d e n i a l of having committed t h e offense. I n S t a t e v . P a r r ( 1 9 5 5 ) , 129 Mont. 175, 283 ~ . 2 d "The r u l e i s t h a t t h e d e f e n s e of e n t r a p m e n t 1086, w e h e l d : i s n o t a v a i l a b l e t o one who d e n i e s commission of t h e o f fense." 883, 910. P a r r , 283 P.2d a t 1089, c i t i n g Annot., 33 A.L.R.2d P a r r i n v o l v e d t h e s a l e of whiskey t o a minor. The minor, who was i n c a r c e r a t e d i n t h e j u v e n i l e d e p a r t m e n t o f t h e c o u n t y j a i l , was g i v e n a t e n d o l l a r b i l l by a probat i o n o f f i c e r and i n s t r u c t e d t o p u r c h a s e a b o t t l e of whiskey i n d e f e n d a n t ' s b a r w h i l e t h e c o u n t y a t t o r n e y and s t a t e l i q u o r i n s p e c t o r watched t h e t r a n s a c t i o n . The d e f e n d a n t d e n i e d h a v i n g s o l d any whiskey t o t h e minor. I n affirming defendant's conviction f o r s e l l i n g intoxicating liquor t o a minor, w e s t a t e d t h a t t h e e v i d e n c e d i d n o t e n t i t l e d e f e n d a n t t o a n i n s t r u c t i o n on t h e q u e s t i o n o f e n t r a p m e n t and n o t e d f u r t h e r t h a t t h e defendant denied having s o l d t h e l i q u o r t o t h e minor, h o l d i n g t h a t t h e e n t r a p m e n t d e f e n s e was t h e r e f o r e not available. W e f o l l o w e d t h e s a m e r u l e i n S t a t e v . O'Donnell (1960), 138 Mont. 123, 354 P.2d 1105, 1107, and S t a t e v. LaCario ( 1 9 7 4 ) , 163 Mont. 511, 518 P.2d 982, 985. t o the contrary i n other jurisdictions: Demma ( 9 t h C i r . There a r e c a s e s United S t a t e s v. 1 9 7 5 ) , 523 F.2d 981; P e o p l e v . P e r e z ( 1 9 6 5 ) , 62 Cal.2d 769, 44 C a l . R p t r . 326, 4 0 1 P.2d 934. I n t h e p r e s e n t c a s e d e f e n d a n t took t h e s t a n d and exp r e s s l y d e n i e d t h a t h e had e v e r s o l d o r g i v e n any m a r i j u a n a t o t h e undercover o f f i c e r s . The D i s t r i c t C o u r t n e v e r t h e l e s s i n s t r u c t e d t h e j u r y on t h e i s s u e o f e n t r a p m e n t i n t h e words of o u r s t a t u t e , s e c t i o n 45-2-213, MCA, and i n a n a d d i t i o n a l i n s t r u c t i o n t o which t h e d e f e n d a n t d i d n o t o b j e c t , Thus, d e f e n d a n t was g i v e n t h e b e n e f i t of i n s t r u c t i o n s t o which he w a s n o t e n t i t l e d under Montana law when t h e e n t r a p m e n t d e f e n s e was s u b m i t t e d t o t h e j u r y , which r e j e c t e d t h e def e n s e i n r e t u r n i n g a v e r d i c t of " g u i l t y . " Although t h e j u r y , i n r e t u r n i n g t h e i r v e r d i c t of " g u i l t y , " found a s a m a t t e r of f a c t t h a t t h e r e was no e n t r a p ment, and a l t h o u g h t h i s C o u r t h a s h e l d , i n o u r d e c i s i o n s i n P a r r and 0' Clonneli t h a t t h e d e f e n s e of e n t r a p m e n t i s n o t a v a i l a b l e t o one who d e n i e s commission of t h e o f f e n s e , a s t h i s d e f e n d a n t d i d when he took t h e s t a n d a t t r i a l , t h e s p e c i f i c h o l d i n g i n t h o s e c a s e s was t h a t t h e t r i a l c o u r t d i d n o t commit e r r o r i n r e f u s i n g t o i n s t r u c t t h e j u r y on t h e q u e s t i o n of entrapment. I n the present case defendant c o n t e n d s t h a t t h e D i s t r i c t C o u r t committed e r r o r by r e f u s i n g t o g r a n t h i s p r e t r i a l motion t o d i s m i s s on grounds o f ent r a p m e n t a f t e r t h e h e a r i n g on p r e t r i a l m o t i o n s . A t that t i m e d e f e n d a n t had n o t d e n i e d committing t h e a c t s which formed t h e b a s i s o f t h e o f f e n s e . The t e s t i m o n y of O f f i c e r G i l l a t t h e p r e t r i a l h e a r i n g on m o t i o n s was s u b s t a n t i a l l y i c e n t i c a l t o O f f i c e r Nelson's a t t h e t r i a l i n regard t o t h e f a c t s r e l a t i n g t o t h e entrapment defense. Thus, d e f e n d a n t a r g u e s on a p p e a l t h a t t h e t e s t i m o n y a t t h e p r e t r i a l h e a r i n g and t h e a l l e g a t i o n s i n t h e S t a t e ' s a f f i d a v i t e s t a b l i s h a of law. e n t r a p m e n t -s-a m a t t e r - The e n t r a p m e n t d e f e n s e i s n o t a c o n s t i t u t i o n a l one, a s t h e U n i t e d S t a t e s Supreme C o u r t r e c o g n i z e d i n United S t a t e s v. R u s s e l l ( 1 9 7 3 ) , 4 1 1 U.S. L.Ed.2d 423, 433, 93 S.Ct. 1637, 36 366, where i t h e l d t h a t " t h e d e f e n s e i s n o t of a c o n s t i t u t i o n a l dimension." T h e r e f o r e , w e must l o o k p r i - m a r i l y t o Montana. s t a t u t e s and c a s e law. The f e d e r a l c a s e s a r e n e v e r t h e l e s s r e l e v a n t t o t h e e x t e n t t h a t t h e y a p p l y t h e same t e s t used i n Montana. The Commission Comment t o o u r s t a t u t e d e f i n i n g e n t r a p m e n t , sect i o n 45-2-213, MCA, s t a t e s t h a t " [ t l h e d e f e n s e of e n t r a p m e n t g e n e r a l l y f o l l o w s t h e r u l e s t a t e d by t h e m a j o r i t y i n t h e Sorrells case." (Sorrells v. United States (1932), 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249.) Entrapment is, of course, an affirmative defense, and the burden of proving it rests on the defendant. LaCario, 518 P.2d 982, 985; State v. White (1969), 153 Mont. 193, 456 P.2d 54, 56; O'Donnell, 354 P.2d 1105, 1106; Parr, 283 P.2d 1086, 1089. This Court has held that the defense of entrapment may be established as a matter of law. In State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171, we overturned the defendant's conviction of sale of dangerous drugs on the grounds that the defense of entrapment had been established as a matter of law. Montana has recognized the entrapment defense by case law, and it is now codified in section 45-2213, MCA: "Entrapment. A person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated. " This Court has held: "This statute is consonant with earlier decisions of this Court which set forth the following element.% of entrapment: (1) Criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind 02 the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. State ex rel. Hamlin, Jr. v. District Court, 163 Mont. 16, 515 P.2d 74; State v. Karathanos, 158 Mont. 461, 493 P.2d 326." State v. Grenfell, supra, 564 P.2d at 173. See also State v. Gallaher (19781, Mont . , 580 P.2d This Court has on previous occasions discussed in detail the matters to be considered in determining whether or not the entrapment defense has been established: "Entrapment o c c u r s o n l y when t h e c r i m i n a l i n t e n t o r d e s i g n o r i g i n a t e s i n t h e mind of t h e p o l i c e o f f i c e r o r i n f o r m e r and n o t w i t h t h e a c c u s e d , and t h e a c c u s e d i s l u r e d o r i n duced i n t o committing a c r i m e he had no i n t e n t i o n of committing. Only when t h e c r i m i n a l design o r i g i n a t e s , n o t with t h e accused, b u t i n t h e mind o f government o f f i c e r s and t h e a c c u s e d i s by p e r s u a s i o n , d e c e i t f u l r e p r e s e n t a t i o n s , o r inducement, l u r e d i n t o t h e commiss i o n o f a c r i m i n a l a c t , can a c a s e of e n t r a p m e n t b e made o u t . In short, there is a controlling d i s t i n c t i o n between i n d u c i n g a p e r s o n t o do a n u n l a w f u l a c t and s e t t i n g a t r a p t o c a t c h him i n t h e e x e c u t i o n of a c r i m i n a l d e s i g n o f h i s own conception. S t a t e v. Karathanos ( 1 9 7 2 ) , 158 Mont. 461, 493 P.2d 326, 331 ( h o l d i n g t h a t t h e r e was no e n t r a p m e n t where t h e d e f e n d a n t approached a p o l i c e i n f o r m a n t i n a b a r and o f f e r e d t o sell her drugs, l a t e r completing t h e t r a n s action). . ." See a l s o , S t a t e v . F r a t e s ( 1 9 7 2 ) , 160 Mont. 431, 503 P.2d I n G r e n f e l l t h e d e f e n d a n t was approached by a n i n f o r m a n t , whom t h e C o u r t c h a r a c t e r i z e d as a f r u s t r a t e d and u n f u l f i l l e d policeman a t t e m p t i n g t o l a n d a job a s a d e p u t y s h e r i f f w i t h t h e S i l v e r Bow County s h e r i f f ' s d e p a r t m e n t . The i n f o r m a n t and h i s w i f e had c u l t i v a t e d a c l o s e f r i e n d s h i p w i t h d e f e n d a n t and h i s w i f e o v e r a p e r i o d o f s i x months. On s e v e r a l o c c a s i o n s w i t h i n a p e r i o d of f o u r d a y s , t h e i n f o r m a n t p e r s i s t e n t l y r e q u e s t e d t h e d e f e n d a n t t o p r o c u r e him some d r u g s , which t h e d e f e n d a n t d i d w i t h r e l u c t a n c e . Defendant o b t a i n e d t h e d r u g s from two men h e had worked w i t h and knew t o be involved with drugs. I n c o a x i n g t h e d e f e n d a n t t o o b t a i n and s e l l him d r u g s , t h e i n f o r m a n t promised d e f e n d a n t t h a t h e c o u l d g e t him a job i n Utah w i t h a mining company, and t h a t t h e t r i p t o Utah c o u l d be f i n a n c e d by t h e p r o f i t s from t h e s a l e of a l a r g e q u a n t i t y of d r u g s t o t h e i n f o r m a n t ' s f r i e n d . I n overturning defendant's conviction f o r s e l l i n g t h e drugs t o t h e i n f o r m a n t on t h e grounds t h a t t h e r e was e n t r a p m e n t a s a m a t t e r of law, w e s t a t e d t h a t t h i s was n o t a c a s e where the drug informer made only a casual offer to buy and that the entire scheme originated in the informer's mind. "The record shows that Grenfell was not predisposed to commit this offense. There was no evidence that prior to January 26, 1975, Grenfell had ever used or sold drugs. Grenfell's close friendship with [the informer] spanned approximately six months, yet [the informer] testified that Grenfell never offered to sell him drugs." Grenfell, 564 P.2d at 173-74. The facts of the present case fall within the cases cited where we have held entrapment as a matter of law, and we believe that they are sufficient to establish entrapment as a matter of law. The criminal intent or design to sell marijuana did not originate with the deferlda.nt,but with the undercover officers Gary Gill and John Nelson, who induced defendant to give them a minute quantity of marijuana. The officers did more than merely afford Kamrud with the opportunity to commit the offense by making a casual offer to buy. As in Grenfell, they befriended him and approached him on more than one occasion for the purpose of soliciting drugs. Likewise, there was no evidence whatsoever that Kamrud had ever sold or offered to sell drugs to anyone prior to his "sale" to Gill and Nelson, which was made at their request; i.e., there was no evidence that he was predisposed to commit the offense or that the idea originated with defendant. This is further buttressed by the fact that the minute quantity of marijuana involved here, 1.8 grams, is not an amount that would ordinarily be exchanged by a person who had the criminal intent to make a sale or even a gift. The officers did far more than merely afford Kamrud with the opportunity to commit the offense--they came up with the whole idea. The officers established themselves as drug users and they themselves violated the very law with which defendant is charged by preparing and giving away marijuana supplied by the Wheatland County sheriff's department. In short, the record does not disclose that there was any drug traffic in Harlowton by the defendant or anyone else, other than that engaged in by these law enforcement officers. While the defendant may well have had the intent to possess marijuana, the idea for him to sell it or to give it away certainly originated with the police officers and not with defendant. Therefore, we hold that under these facts, entrapment was established as a matter of law. Grenfell, 564 P.2d at 173-74. The judgment of the District Court is reversed with directions to dismiss the information. We concur: , - Chief Justice %a Justices Mr. Justice Daniel J. Shea will file a specially concurring opinion at a later date. S P E C I A L CONCURRENCE O F MR. J U S T I C E D A N I E L J . SHEA ........................................................ No. 79-63 ........................................................ T H E S T A T E O F MONTANA, P l a i n t i f f and R e s p o n d e n t , v. ROBERT A. KAMRUD, D e f e n d a n t and A p p e l l a n t . ....................................................... - Mr. Justice Daniel J. Shea specially concurring: I concur in the opinion of the majority reversing def- endant's conviction and holding as a matter of law that defendant was the victim of entrapment. Although not necessary to the decision, I believe that the sentencing aspects of this case are deserving of brief mention. After the jury rekurned with its verdict the trial court set a sentencing date but did not order a presentence investigation. Section 46-18-111, MCA, provides that a presentence investigation shall be ordered by the sentencing judge unless the judge makes a specific determination that one is not needed. Here the record is silent with regard to a presentence investigation report. This can hardly stand for the proposition that the sentencing judge determined that a presentence investigation report was not needed. Thus, assuming that this Court did not reverse the conviction, because the sentencing court failed to comply with Section 46-18-111, MCA, the defendant would be entitled to be sentenced again. Defendant further argues that the actual sentence imposed was excessive in that he had never before been convicted of any offense and that he had been designated as a nondangerous offender. He adds to this argument by contending that the sentencing court "couched its sentencing on the grounds that the sheriff does not often catch a drug dealer in Harlo (sic) and that his personal belief was that there were a lot of drugs going around in Harlowton, Montana." This conclusion is, however, not supported by a record; the defendant failed to provide this court with a copy of the transcript of the sentencing hearing. If such assertions are to be made on appeal, it behooves counsel to provide the supporting documentation such as a transcript. It may well be true that defense counsel is right; but defense counsel also would lose his point on appeal because he had neglected to provide the documentation for his claim. event. Justice would certainly be the loser in such
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