### 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. ~ustice Gene B. Daly delivered the Opinion of the Court. ~efendant RobertA. Kamrud appeals from his conviction, following 

### a jury trial, of the offense of criminal sale of dangerousdrugs. On March 9, 1979,JohnNelson and Gary Gill were employed as undercover deputy sheriffs of Wheatland County to investigatepossible drug sales and drug use in Harlowton, Montana. They setup 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 themselveswith 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 somepersons invited by them to parties at their trailer. Defendant attended one suchparty

onMarch 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. Defendantdid 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 crossexaminationby defense counsel that at about 3:05 a.m. that morning, as the defendantwas leaving with his bottle of whiskey, Officer Gary Gill approached the defendant and asked him if he could supply Gill with some "stuff." None

was supplied. Nelson did notpersonally witness this conversation. At the time of the hearing on defendant's pretrial motions, Officer Gary Gill testified to the sameeffect, but he didnot testifyat

### trial. Defendant took the stand attrialand testified that after recovering his bottle of whiskey, he went back tohis camper tohave some drinks with a woman-friend. Defendant made no mention in his testimony of any conversation with Gillinwhich Gill approached him for drugs atthat time. Later on the 17th, 

### atapproximately 11:30 a.m., the defendant and 

### a girlfriend stopped briefly atthe trailer occupied by Nelson and Gilland had a shortconversation with them. Nelson testified that 

### atthat timehe heard defendant, inhispresence, ask Gillif he stillwanted some drugs, towhich Gillresponded that they would see the defendant later that afternoon athis home. Gilltestified to the same effectduring the hearing on defendant's 

### pretrial motions. The defendant and his girlfriendcontradicted this testimony, saying thatdrugs 

### werenot discussed during thisconversation. Atapproximately 4:20 that afternoon, according to Nelson's testimony, he and Gillwent todefendant's trailer, where Gillrequested some "stuff" and defendant gave him 

### a vial containing 1.8 grams of marijuana. Defendant refused totake any money. Gill's testimony 

### atthe hearing on pretrialmotions 

### was similar. Defendant denied that the officerscame tohis trailer house that afternoon or thathe sold or gave them any drugs. He testified thathe spent the afternoon checking his trapline and having 

### a beer with his girlfriend intheArgonaut Bar until her workshift began, and then drove home and went tobed and slept the rest of the day. On March 27, 1979, defendant Robert A. ~amrud was charged inthe District Court, Fourteenth Judicial District,Wheatland County, Montana, with the 

### crime of criminal sale of dangerous drugs inviolation of section 45-9-101, MCA. The information charged thaton March 17, 1979, atapproximately 4:30 p.m. inhis trailer house atHarlowton, Wheatland County, Montana, the defendant "Robert A. Kamrud gave away toGary 

### L. Gilla quantity of dangerous drugs 

### as defined inSection 50-32-101, MCA, 1979, to-wit: marijuana, a Class I drug." On June 12, 1979, the defendant's attorney filedvarious pretrialmotions, including a motion todismiss the information on the grounds of entrapment. A hearing was held on thesemotions on June 21, 1979. Defendant made the contention that entrapment was established as a matter of law by the allegations contained inthe State's affidavit of probable cause filed insupport of its application to file the information and by the evidence presented atthe hearing. The DistrictCourt denied defendant's motion inan order filedJune 25, 1979, stating thatentrapment had not been established 

### as a 

### matter of law but that it would presenta question of fact for the jury. Kamrud pleaded not guilty and was tried before a jury. Hewas found guilty and 

### was sentenced to fiveyears inthe Montana StatePrison. Appellant presents several issues on appeal butwe need consider only one: Did the District Court err indenying defendant's pretrial motion todismiss on the grounds that entrapment was established as a matter of law? As a preliminary matter, the Stateurges thatdefendant isprecluded from asserting the inconsistent defenses of (1) entrapment coupled with (2) a denial of having committed the offense. In Statev. Parr (1955), 129Mont. 175, 283 ~.2d1086, we held: "The rule 

### isthat the defense of entrapment isnot available toone who denies commission of the offense." Parr, 283 P.2d 

### at1089, citingAnnot., 33 A.L.R.2d 883, 910. Parr involved the saleof whiskey toa minor. The minor, who was incarcerated in the juvenile department of the county jail, was given a ten dollar billby a probation officer and instructed topurchase a bottle of whiskey indefendant's bar while the county attorney and state liquor inspector watched the transaction. The defendant denied having sold any whiskey to theminor. In affirming defendant's conviction for selling intoxicating liquor to a minor, we stated that the evidence did not entitledefendant to an instruction on the question of entrapment and noted further that the defendant denied having sold the liquor to theminor, holding that the entrapment defense was therefore not available. We followed the samerule inStatev. O'Donnell (1960), 138Mont. 123, 354 P.2d 1105, 1107, and Statev. LaCario (1974), 163Mont. 511, 518 P.2d 982, 985. There are cases tothe contrary inother jurisdictions: United Statesv. Demma (9thCir. 1975), 523 F.2d 981; People 

### v. Perez (1965), 62 Cal.2d 769, 44 Cal.Rptr. 326, 401P.2d 934. In the present case defendant took the stand and expressly denied thathe had ever sold or given any marijuana to the undercover officers. The DistrictCourt nevertheless instructed the jury on the issue of entrapment inthe words of our statute, section 45-2-213, MCA, and inan additional instruction towhich the defendant did not object, Thus, defendant was given the benefit of instructions towhich he



### was not entitled under Montana law when the entrapment defense was submitted to the jury, which rejected the defense inreturning 

### a verdict of "guilty."Although the jury, inreturning their verdict of "guilty," found as

### a matter of fact that therewas no entrapment, and although thisCourt has held, inour decisions in Parr and 0'Clonneli that the defense of entrapment isnot available to one who denies commission of the offense, 

### as this defendant didwhen he took the stand attrial, the specific holding inthose cases was that the trial court did not commit error inrefusing to instruct the jury on the question of entrapment. Inthe present case defendant contends that the DistrictCourt committed error by refusing to grant hispretrialmotion todismiss on grounds of entrapment after the hearing on pretrial motions. Atthat timedefendant had not denied committing the actswhich formed the basis of the offense. The testimony of Officer Gill

### atthe pretrial hearing on motions was substantially icentical toOfficer Nelson's atthe trial inregard to the factsrelating to the entrapment defense. Thus, defendant argues on appeal that the testimony atthe pretrial hearing and the allegations inthe State's affidavit establish entrapment 

### -- asa matterof 

### -- law. The entrapment defense isnot a constitutional one, as the United States Supreme Court recognized inUnited States

v. Russell (1973), 411U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366, where it held that "thedefense isnot of a constitutional dimension." Therefore, 

### we must look primarily toMontana. statutes and case law. The federal cases arenevertheless relevant to the extent that they apply the same test used inMontana. The Commission Comment toour statute defining entrapment, section 45-2-213, MCA, states that "[tlhedefense of entrapment generally follows the rule statedby the majority in the

### Sorrells case." (Sorrellsv. 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;Statev. White (1969), 153Mont. 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 entrapmentmay be established as a matter of law. In State v. Grenfell

(1977),172Mont. 345, 564 P.2d 171, we overturned the defendant's conviction of sale of dangerous drugs on the grounds that the defense of entrapmenthad been established

as a matter of law. Montana has recognized the entrapment defense by case law, and it is now codified in section 45-2- 213,MCA: "Entrapment. A person isnot 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 suchperson. However, this section is inapplicable if a public servant or his agent merely affords to suchperson the opportunity or facility for committing an offense in furtherance of criminalpurpose which suchperson has originated.

### " This Court has held: "This statute 

### is consonant with earlier decisions of this Courtwhich 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, 163Mont. 16, 515 P.2d 74; State v. Karathanos, 158Mont. 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 occurs only when the criminal intentor design originates inthemind of the police officer or informer and notwith the accused, and the accused is lured or induced intocommitting a crime he had no intention of committing. Only when the criminal design originates, not with the accused, but inthe mind of government officers and the accused is by persuasion, deceitful representations, or inducement, lured into the commission of a criminal act, can a case of entrapment be made out. In short, there is a controlling distinctionbetween inducing a person to do an unlawful actand setting

### a trap tocatchhim in the execution of a criminal design of his own conception. 

# . ." State

### v. Karathanos (1972), 158Mont. 461, 493 P.2d 326, 331 (holding that there was no entrapment where the defendant approached a police informant in

### a bar and offered to sell her drugs, later completing the transaction). See also, Statev. Frates (1972), 160Mont. 431, 503 P.2d

In Grenfell the defendant was approached by an informant, whom the Court characterized as a frustrated and unfulfilled policeman attempting to land a job as a deputy sheriff with the Silver Bow County sheriff's department. The informant and his wife had cultivated 

### a close friendship with defendant and hiswife over a period of sixmonths. On several occasions within a period of four days, the informantpersistently requested the defendant toprocure him some drugs, which the defendant didwith reluctance. Defendant obtained the drugs from two men he had worked with and knew tobe involved with drugs. In coaxing the defendant toobtain and sell him drugs, the informant promised defendant thathe could gethim a job inUtah with a mining company, and that the trip toUtah could be financed by the profits from the sale of a large quantity of drugs to the informant's friend. Inoverturning defendant's conviction for selling the drugs to the informant on the grounds that there was entrapment as
a matterof law, 

### we stated that thiswas not 

### a case 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 thatprior to January 26, 

### 1975, Grenfellhad ever used or sold drugs. Grenfell's close friendship with [the informer] spanned approximately sixmonths, 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 thanmerely 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

onmore 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 thatwould ordinarily be exchanged by a person who had the criminal intent to make a sale or even a gift. The officers did farmore thanmerely 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 themselvesviolated 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 defendantmay 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 notwith 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 DistrictCourt 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.SPECIAL CONCURRENCE OF MR. JUSTICE DANIEL J. SHEA



## ........................................................ No. 79-63



## ........................................................ THE STATE OF MONTANA, Plaintiff and Respondent,



### v. ROBERT A. KAMRUD, Defendant and Appellant.



## ....................................................... -

### Mr. Justice Daniel J. 

### Shea specially concurring:

I 

### concur in the opinion of the majority reversing defendant's conviction and holding as a matter of law that defendant was the victim of entrapment. Although not necessary to the decision, Ibelieve 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 shallbe 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 reportwas 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. Itmay 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. Justicewould certainly be the loser in such event.