Fisher v. State

Powers, J., delivered the opinion of the Court. The Defense of Entrapment When the law of entrapment comes to an appellate court the case invariably presents questions not only of the substantive law, but of procedure for applying that law to the evidence in the case. In Simmons v. State, 8 Md. App. 355 , 259 A. 2d 814 (1969), Judge (now Chief Judge) Orth, for this Court, wrote a comprehensive review, both of the substantive law relating to the defense of entrapment, and of the correct procedures for applying that law. We cited and discussed cases in which the Court of Appeals had expressed itself on the subject.

We noted that that Court had “recognized that there were two divergent views held by respected authorities concerning the conditions under which entrapment should apply”, but had expressly not adopted either view. We discussed those views, and their sources. Those sources were the majority opinions of the Supreme Court of tho United States in Sorrells v. United States, 287 U. S. 435 , 77 L. Ed. 413 , 53 S. Ct. 210 (1932), Sherman v. United States, 356 U. S. 369 , 2 L.Ed.2d 848 , 78 S. Ct. 819 (1958), and Masciale v. United States, 356 U. S. 386 , 2 L.Ed.2d 859 , 78 S. Ct. 827 (1958), which held one view, and the concurring opinions in Sorrells and Sherman and the dissent in Masdale, all espousing the other. We felt in Simmons that it was advisable to adopt a rule regarding the defense of entrapment.

We did so, following ²⁴⁵ Sorrells, Sherman, and Masdale. The Court of Appeals approved in Grohman v. State, 258 Md. 552 , 267 A. 2d 193 (1970). The Court quoted extensively from Simmons , and termed it “a clear cut expression of the view adopted by Maryland * * * .” In expressing the rule we said in Simmons , at 360-61: “We construe the opinion of the Court in Sorrells as enunciating what has been termed the ‘origin of interest’ test. This test was stated in substance by Judge Learned Hand in United States v. Sherman, 200 F. 2d 880 (2d Cir. 1952).

Probing the aspect of inducement he concluded that in Sorrells ‘all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed.’ At 882. Inducement was further explained in Sherman v. United States, 356 U. S. 369 , at 372: ‘ * * * [T]he fact that government agents “merely afford opportunities or facilities for the commission of the offense does not” constitute entrapment. Entrapment occurs only when the criminal conduct was “the product of the creative activity” of law-enforcement officials. (Emphasis supplied.) See 287 U. S. at pages 411, 451, 53 S. Ct. at pages 212, 216.

To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.’ ” We quoted further, 8 Md. App. at 362 , from the comments of Judge Learned Hand, when he said: “ ‘ * * * [I]t is a valid reply to the defense, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense ²⁴⁶ charged, whenever the opportunity offered. In that event the inducement which brought about the actual offense was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his pre-existing purpose. * * * “ ‘ Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.’ ” Our reliance upon Sorrells and Sherman as persuasive, although not binding, was not misplaced. Very recently, the Supreme Court, in United States v. Russell, 411 U. S. 423 , 36 L.Ed.2d 366 , 93 S. Ct. 1637 (1973), adhered to the view of entrapment it had first adopted in Sorrells in 1932 and had reaffirmed in Sherman in 1958.

The Court reversed an order of the U. S. Court of Appeals for the Ninth Circuit, which itself has reversed a conviction in a jury trial in the U. S. District Court, for having unlawfully manufactured and processed and sold a prohibited drug. At the trial of the Russell case in the District Court, the judge had given what the Supreme Court referred to as a standard entrapment instruction, the substance of which was not at issue in the case. The facts show that a Federal narcotics agent had approached Russell and his two codefendants, all of whom the agent suspected of manufacturing methamphetamine. He offered to supply them with one of the chemical components which was difficult to obtain, in exchange for a share of the drug they produced.

They accepted the proposal and, using the chemical supplied by the agent along with other chemicals, did manufacture the drug. The Court, after referring to Russell’s argument that on the facts there was entrapment as a matter of law, said, at 427: ²⁴⁷ “The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been ‘an intolerable degree of governmental participation in the criminal enterprise.’ In th;s case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.” Mr. Justice Rehnquist, speaking for the Court, pointed out that in Sorrells and in Sherman the principal element in the defense of entrapment was held to be the defendant’s predisposition to commit the crime, while the concurring opinions in both cases would make the essential element of the defense turn on the type and degree of governmental conduct. The Court said, at 435: “Those cases establish that entrapment is a relatively limited defense.

It is rooted not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been ‘overzealous law enforcement,’ but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a prescribed offense but was induced to commit them by the government.” The Court declined to “reconsider” the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. It said, at 434-35: “We are content to leave the matter where it was left by the Court in Sherman: ²⁴⁸ ‘The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.

However, “A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” ’ ” Having examined and discussed the substantive law in Simmons v. State, supra, we turned to questions of procedure. We said, at 364-65: “The defense of entrapment having been raised, the issue of whether a defendant has been entrapped is for the trier of fact as part of its function of determining the guilt or innocence of the accused. Thus it is a matter of the sufficiency of the evidence. The burden as to the first question — did the police, directly or through their agent,, induce the defendant to commit the offense charged in the indictment — is on the defendant.

This may be established by a preponderance of the evidence. The burden as to the second question — was the defendant’s criminal conduct due to his own readiness and not to the persuasion of the police, that is, did he have a predisposition to commit the offense — is on the State. This must be established, beyond a reasonable doubt. The question of the-sufficiency of the evidence would be raised by motion for judgment of acquittal.

In a jury trial if the motion is denied, the issue of entrapment would-be submitted to the jury with appropriate instructions.” It should here be emphasized that the defense of entrapment cannot be considered as “having been raised” — ²⁴⁹ that entrapment cannot become an issue for the trier of the facts — unless there is sufficient evidence which, if deemed weighty and credible by the trier of the facts, would support a finding that the police, directly or through their agent, induced the defendant to commit the offense charged. Unless there is evidence to show inducement, the second question — predisposition — is irrelevant. The initial test of the evidence, within the framework of the substantive law of entrapment, is always a matter of law for the court. The question to be decided depends upon how the question is raised. 1 A motion for judgment of acquittal ²⁵⁰ based upon that defense requires the court to decide whether there is undisputed evidence, so clear and decisive that reasonable minds, applying the correct law, could not differ in finding that the defendant was induced by the police to commit the offense, and that his criminal conduct was due to the persuasion of the police, and not to his own readiness or predisposition to commit the offense.

Only when such is the state of the evidence is there entrapment as a matter of law. In considering a motion for judgment of acquittal on the ground of entrapment, the court is concerned only with sufficiency of the evidence, and in these aspects: 1. Is the evidence, whatever its source, sufficient to support a finding that the defendant was induced by the police or their agent to commit the offense? If there is not, the defense is not “raised”, and the motion must be denied. 2.

If the evidence is sufficient to support the ²⁵¹ finding, is the evidence also sufficient to support a finding that the defendant was not induced? If so, there is an issue of fact, and the motion must be denied. 3. Even if the evidence shows inducement as a matter of law, is the evidence sufficient to support a finding that the defendant’s criminal conduct was due to his own readiness or predisposition to commit the offense? If so, there is an issue of fact, and the motion must be denied. 4.

If the evidence shows inducement as a matter of law, and also shows as a matter of law that the defendant’s criminal conduct was due solely to that inducement, and not to his own readiness or predisposition to commit the offense, then as a matter of law there is entrapment, there is no issue of fact, and the motion must be granted. In this test of legal sufficiency, the court is not concerned with any burden of proof. A burden of proof is a yardstick used only by the trier of the facts in performing the function of assessing weight and credibility of evidence. When the defense of entrapment is raised, and there are issues of fact, as in our examples 2 and 3, those issues are to be resolved by the trier of the facts, with due consideration to any applicable burden of proof.

If the trier of the facts is a jury, the court shall, upon request, give appropriate advisory instructions on the law of entrapment. Byrd v. State, supra, at 400, note 3. The Present Case Anthony Sylvester Fisher, appellant here, was found guilty by a jury in the Circuit Court for Queen Anne’s County of distribution and possession of heroin. After Fisher’s motion for a new trial was heard and denied, a sentence of eight years was imposed. ²⁵² On appeal, Fisher raises three issues which he says constitute reversible errors: (1) the admission in evidence of the alleged heroin “despite gross defects in the chain of custody”; (2) prejudicial comments by the trial judge regarding those defects; and (3) the trial judge’s refusal to instruct the jury on the law of entrapment.

The evidence showed that on 4 March 1974 Trooper John R. Davis of the Maryland State Police gave Fisher $20 for which Fisher delivered to him aluminum foil packets containing what laboratory analyses proved was heroin. Fisher readily admitted his participation in the transaction, but contended that he was