State v. Kamrud

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.
~efendantRobert 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 em-
ployed 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." None

was supplied. 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 pre-

t 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 . Defendant r e f u s e d

t o t a k e any money. 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 de-

f 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 . A h e a r i n g was

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. 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
1086, w e h e l 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

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." P a r r , 283 P.2d a t 1089, c i t i n g Annot., 33 A.L.R.2d

883, 910. 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 proba-

t 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. There a r e c a s e s

t o the contrary i n other jurisdictions: United S t a t e s v.

Demma ( 9 t h C i r . 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 ex-

p 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 de-

f 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 en-

t 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

e n t r a p m e n t -s-a m a t t e r - -
a of law.

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. 423, 433, 93 S.Ct. 1637, 36

L.Ed.2d 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 , sec-

t 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 45-2-
213, 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 pur-
pose of obtaining evidence for the prosecution
of such person. However, this section is in-
applicable if a public servant or his agent
merely affords to such person the opportunity
or facility for committing an offense in fur-
therance of criminal purpose which such per-
son has originated. "
This Court has held:
"This statute is consonant with earlier deci-
sions of this Court which set forth the follow-
ing 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. Dis-
trict 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 commis-
s 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 ap-
proached 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 pre-
disposed to commit this offense. There was
no evidence that prior to January 26, 1975,
Grenfell had ever used or sold drugs. Gren-
fell's close friendship with [the informer]
spanned approximately six months, yet [the
informer] testified that Grenfell never of-
fered 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 oppor-
tunity 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 depart-
ment. 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 .

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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 def-
endant 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 con-
viction, 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. Justice would certainly be the loser in such
event.