No. 13165
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA,
Plaintiff and Respondent,
GREGORY ALLEN GRENFELL,
Defendant and Appellant.
Appeal from: District Court of the Second Judicial
District
Honorable James D. Freebourn, Judge presiding.
Counsel of Record:
For Appellant:
J. Brian Tierney argued, Butte, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena,
Montana
Gary Winston argued, County Attorney, Butte,
Montana
Nadine Scott argued, Butte, Montana
Submitted: January 12, 1 9 7 7
Decided :
- Y11. 1977
M
Filed:
M r . : J u s t i c e D a n i e l J . Shea d e l i v e r e d t h e Opinion of t h e Court.
Defendant Gregory G r e n f e l l was c o n v i c t e d on one d f o u r
c o u n t s of s e l l i n g dangerous drugs i n v i o l a t i o n of s e c t i o n 54-132,
R.C.M. 1947, i n t h e d i s t r i c t c o u r t , S i l v e r Bow County. He was
sentenced t o 1 0 y e a r s i n p r i s o n . Defendant r a i s e s s e v e r a l i s s u e s
i n t h i s a p p e a l b u t o n l y t h e i s s u e of entrapment i s n e c e s s a r y f o r
the decision i n t h i s case. He c l a i m s t h e r e was entrapment a s a
m a t t e r of law. W agree.
e
The c h a r g e s a g a i n s t G r e n f e l l a r o s e i n B u t t e , Montana, from
four s a l e s of drugs t o B i l l V e r r a l l , an informer f o r t h e S i l v e r
Bow County s h e r i f f ' s department, on J a n u a r y 26, 27, 28, and 29, 1975.
G r e n f e l l and V e r r a l l met i n t h e f a l l of 1974. Thereafter Verrall
and h i s w i f e 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 G r e n f e l l and h i s
wife.
The f a c t s show V e r r a l l was a f r u s t r a t e d and u n f u l f i l l e d
policeman having d r i f t e d from job t o job over a p e r i o d of s e v e r a l
years. He s t a r t e d a s a Montana S t a t e P r i s o n guard b u t was t e r -
minated a f t e r s i x months. H i s employment w i t h t h e B u t t e p o l i c e
f o r c e i n 1971 was terminated b e f o r e h i s p r o b a t i o n a r y ( s i x month)
period expired. V e r r a l l t h e n went t o t h e s t a t e of Washington
and t h e r e worked f o r t h e King County highway p a t r o l a s a p r i v a t e
s e c u r i t y guard, b u t l e f t a f t e r o n l y one week. I n 1973 he was a
p o l i c e o f f i c e r f o r Boulder, Montana, b u t l e f t a f t e r o n l y f o u r
months employment, d u r i n g which he was o f f i c i a l l y charged w i t h
a s s a u l t w h i l e on duty. V e r r a l l t h e n d r i f t e d back and f o r t h from
Montana t o t h e s t a t e of Washington, n o t having any s t e a d y job and
drawing p e r i o d i c w e l f a r e a s s i s t a n c e f o r himself and f a m i l y .
erra all's i n t e r e s t i n being a deputy s h e r i f f f o r S i l v e r Bow
County d a t e s back t o 1969 when he asked t h e then s h e r i f f f o r a
job a s a deputy but was refused. I n 1974, when a new s h e r i f f was
e l e c t e d , but before he took o f f i c e , V e r r a l l approached him and
t o l d him t h a t he would buy drugs f o r him. A t t h e time of t h e
i n c i d e n t s involved i n t h i s case, V e r r a l l had f i l e d an a p p l i c a t i o n
t o be a deputy s h e r i f f f o r S i l v e r Bow County, and although he had
n o t been o f f i c i a l l y h i r e d , he was working a s a drug purchaser f o r
t h e s h e r i f f ' s of f i c e .
O January 26, 1975, V e r r a l l c a l l e d G r e n f e l l and asked him
n
f o r marijuana. G r e n f e l l t e s t i f i e d he suggested beer i n s t e a d , b u t
V e r r a l l s a i d he was "uptight" and needed marijuana. G r e n f e l l went t o
a l o c a l tavern and inquired about two men he had worked with and
knew t o be involved with drugs. A f t e r l e a r n i n g they l i v e d i n a
t r a i l e r c o u r t i n t h e "Country Club area", he obtained some hashish
and gave i t t o V e r r a l l . V e r r a l l l a t e r d e l i v e r e d t h e hashish t o t h e
sheriff. This t r a n s a c t i o n comprised count one of t h e Information,
on which G r e n f e l l was a c q u i t t e d .
O January 27, 1975, V e r r a l l c a l l e d G r e n f e l l ' s home many
n
times. G r e n f e l l a t f i r s t t o l d h i s wife t o t e l l V e r r a l l he was n o t
a t home. L a t e r , G r e n f e l l returned t h e c a l l . V e r r a l l t o l d him t h e
hashish gdve him a good n i g h t ' s s l e e p and he had a f r i e n d who
wanted some LSD. C-renfell s a i d he did n o t know where t o g e t LSD,
but he would t a l k t o t h e men who gave him t h e hashish. He obtained
$20 from V e r r a l l and bought $10 worth of L D from h i s s u p p l i e r s .
S
G r e n f e l l gave t h e L D and t h e $10 change , . , t o t . V e r r a l l .
S Verrall
d e l i v e r e d t h e LSD t o t h e s h e r i f f . These events were t h e b a s i s f o r
count two of t h e Information, on which G r e n f e l l was a c q u i t t e d .
O January 28, 1975, V e r r a l l drove t o G r e n f e l l ' s home and
n
asked G r e n f e l l t o work on h i s automobile. A t t h a t time a "partner-
ship" was discussed whereby they would purchase a l a r g e q u a n t i t y
of L D t o s e l l t o V e r r a l l ' s f r i e n d a t a p r o f i t t o finance a t r i p
S
t o Utah t o o b t a i n work. ( V e r r a l l promised G r e n f e l l he could g e t
him a job i n Utah with a mining company and had even helped him
f i l l out t h e a p p l i c a t i o n forms). G r e n f e l l then went t o h i s
s u p p l i e r s i n t h e t r a i l e r home t o ask t h e p r i c e of LSD i f bought
i n bulk. He obtained some hashish and amphetamines which he l a t e r
gave t o V e r r a l l . The "big buy1' was s e t f o r January 29, 1975.
These events comprised count t h r e e of t h e Information, on which
G r e n f e l l was a c q u i t t e d .
A f t e r V e r r a l l l e f t , G r e n f e l l returned t o t h e s u p p l i e r s and
obtained a small amount o f l h a s h i s h f o r h i s own use.
The u l t i m a t e o b j e c t i v e of t h e s h e r i f f ' s o f f i c e was t o c a t c h
t h e s u p p l i e r s t o G r e n f e l l , although t h i s was never accomplished,
due t o a f a i l u r e of t h e s h e r i f f ' s o f f i c e t o follow G r e n f e l l t o t h e
t r a i l e r home where t h e s u p p l i e r s l i v e d .
O t h e morning of January 29, 1975, G r e n f e l l , knowing t h i s
n
was t h e day of t h e "big buy", was nervous and r e l u c t a n t t o go
through w i t h t h e purchase. He t r i e d t o smoke t h e hashish he had
purchased t h e n i g h t b e f o r e , b u t it h u r t h i s t h r o a t . Verrall t r i e d
t o calm him down during a telephone conversation by a s s u r i n g
G r e n f e l l everything would be a l l r i g h t and t e l l i n g him they needed
t h e money f o r t h e t r i p t o Utah.
V e r r a l l a r r i v e d a t G r e n f e l l ' s home t h a t afternoon with $900.
The b i l l s had been photocopied and t h e s e r i a l numbers recorded
by t h e s h e r i f f ' s o f f i c e . G r e n f e l l ' s home was under s u r v e i l l a n c e .
V e r r a l l gave G r e n f e l l $475 of the $900. G r e n f e l l l e f t and
made a purchase of 320 L D p i l l s . (The s h e r i f f ' s o f f i c e f a i l e d
S
i n i t s assignment t o follow G r e n f e l l and catch h i s s u p p l i e r s ) .
When G r e n f e l l returned t o h i s home he gave t h e LSD p i l l s
and $43 i n change t o V e r r a l l . They s p l i t t h e r e s t of t h e $900
equally. A s V e r r a l l l e f t with t h e p i l l s , he signaled t h e s h e r i f f ' s
deputies who quickly a r r e s t e d Grenfell. This f i n a l t r a n s a c t i o n ,
a t r a n s f e r of t h e p i l l s from G r e n f e l l t o V e r r a l l , comprised count
four of t h e Information. G r e n f e l l was convicted on t h i s count.
He appeals.
Montana's entrapment s t a t u t e , s e c t i o n 94-3-111, R.C.M. 1947,
provides :
"A person i s not g u i l t y of an o f f e n s e i f h i s conduct
i s i n c i t e d o r induced by a public s e r v a n t , o r h i s
agent f o r t h e purpose of obtaining evidence f o r t h e
prosecution of such person. However, t h i s s e c t i o n
i s i n a p p l i c a b l e i f a p u b l i c servant o r h i s agent, merely
a f f o r d s t o such person t h e opportunity o r f a c i l i t y f o r
committing an offense i n furtherance of c r i m i n a l purpose
which such person has originated."
This s t a t u t e i s consonant with e a r l i e r d e c i s i o n s of t h i s Court
which s e t f o r t h t h e following elements of entrapment: (1) Criminal
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 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 ex r e l .
Hamlin, Jr. v. D i s t r i c t Court, 163 Mont. 16, 515 P.2d 74; S t a t e
v. Karathanos, 158 Mont. 461, 493 P.2d 326.
The record shows G r e n f e l l was n o t predisposed t o commit
t h i s offense. There was no evidence t h a t p r i o r t o January 26, 1975,
G r e n f e l l had ever used o r s o l d drugs. Grenfell's close friendship
w i t h V e r r a l l spanned approximately s i x months, y e t V e r r a l l
t e s t i f i e d t h a t G r e n f e l l never o f f e r e d t o s e l l him drugs. The
one time G r e n f e l l admitted t r y i n g t o smoke h a s h i s h he s a i d he
q u i t because i t h u r t h i s t h r o a t .
This i s n o t l i k e S t a t e v. Harney, 160 Mont. 55, 499 P.2d
802, where t h e drug informer made only a c a s u a l o f f e r t o buy
drugs from t h e defendant. Here, t h e e n t i r e scheme o r i g i n a t e d
in erra all's mind. His telephone c a l l t o G r e n f e l l on January 26,
1975, was t h e beginning of f o u r c o n s e c u t i v e days of p e r s i s t e n t
e f f o r t s t o involve G r e n f e l l i n d r u g s , s o l e l y f o r t h e purpose of
g a t h e r i n g evidence a g a i n s t him. Whenever G r e n f e l l showed r e l u c -
t a n c e , V e r r a l l coaxed him w i t h v i s i o n s of V e r r a l l ' s p e r s o n a l need
and G r e n f e l l ' s need t o have money t o t r a v e l t o Utah t o f i n d a
job. Had it n o t been f o r V e r r a l l ' s c r e a t i v e a c t i v i t i e s , t h i s
o f f e n s e would never have been committed.
The c o n v i c t i o n i s r e v e r s e d and ordered dismissed.
Chief J u s t i c e
\