                                 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 9T   - lgn
Filed :        9   a   ln
                        s
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 Informa-
t 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
of entrapment a s a matter of law.                            A t t h e hearing on t h e motion,
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 said nothing.
Everett bought relator another drink.     Relator then said, "I know
a place we can go that they might have some. 11    Everett said
"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
some dope.  On the way there relator named another place they
                                       were
could probably get some dope, if they/ unsuccessful at the house
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.    The man
said no, but he had some acid.     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
appeared "starry-stoned on acid" to Everett.      The man who originally
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 sub-
stantiated 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
                     The matter came on f o r adversary hearing b e f o r e
d i s t r i c t court.
                  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.       S t a t e v. Harney,     - .
                                                                           Mont        -9


499 P.2d 802, 29 St.Rep.             627.     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 commit-
ting.      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.
