Vaden v. State

SINGLETON, Judge,

concurring.

I agree with Judge Coats’ resolution of the issues in this case. Vaden contends that he could not have aided and abetted Snell in committing an unlawful act if Snell’s act (shooting the foxes) was lawful. It is not necessary, in my view, to explore the possible criminal liability of an offender who uses an “innocent agent” to accomplish his offense where the “innocent agent” is an undercover police officer because it seems clear to me that Snell’s act was not lawful and that, therefore, Vaden could be prosecuted for aiding and abetting him.

Under Alaska law, no one may take fish or game unless expressly authorized to do so by a statute or regulation. State v. Eluska, 724 P.2d 514, 515 (Alaska 1986). Neither the Board of Fish and Game nor the executive branch of government can orally authorize the taking of game. See State v. Tanana Valley Sportsmen’s Ass’n, 583 P.2d 854, 858 (Alaska 1978). Vaden has not pointed to any regulation or statute expressly authorizing Snell, or un*788dercover officers in general, to shoot foxes. Consequently, Snell’s shooting of the fox was illegal.

Judge Coats may be suggesting, in dicta, that Snell’s action might have been excusable under AS 11.81.420.1 The applicability of this section has not been briefed, and I have grave reservations regarding the question. It appears clear to me that Snell’s act was not authorized by law or by a judicial decree, judgment, or order. AS 11.81.420(a). It is possible that Snell reasonably believed that his conduct was required or authorized in order to assist peace officers {i.e., Fish and Game officials) in the performance of their duties notwithstanding that those officials exceeded their authority in permitting him to kill animals. AS 11.81.420(b)(2). But cf Eluska, 724 P.2d at 515 (refusing to recognize statutory defense permitting taking of animals not specifically authorized by Fish and Game regulations). It is not necessary to pursue this issue further, however, because I agree with Judge Coats that if Snell has a defense under this section, it is a personal defense akin to duress or entrapment which would not insulate an aider or abettor from liability. See, e.g., United States v. Azadian, 436 F.2d 81 (9th Cir.1971) (perpetrator of crime of bribing official acquitted on ground of entrapment; accessory convicted); State v. Harvey, 303 Or. 351, 736 P.2d 191 (1987) (perpetrator’s defense of duress does not insulate instigator from criminal liability).

I also agree that Vaden cannot prevail on a theory of entrapment. In order to show entrapment, the defendant must establish two steps: that the police engaged in (1) activities which were calculated to seduce or coerce people, who are not otherwise motivated to commit crimes; and (2) the police activities constituted unconscionable conduct; Pascu v. State, 577 P.2d 1064, 1066-67 (Alaska 1978). Unless the first step is satisfied, the second is never reached. Anchorage v. Flanagan, 649 P.2d 957 (Alaska App.1982). Under the subjective theory of entrapment, the focus is on the defendant and whether the police seduced or coerced him. Under the objective theory, the court looks beyond the immediate parties to the transaction and asks whether the police conduct would be likely to seduce or coerce others (“average” people) into criminal behavior that they would not otherwise commit. In the absence of seduction or coercion, police conduct, no matter how unconscionable, cannot constitute entrapment. Flanagan, 649 P.2d at 961-62.2

*789My concern with Judge Coats’ opinion may involve too broad a reading; I infer a conclusion that in the absence of entrapment, unconscionable police conduct can never justify dismissal of a charge. We reserved this question in Flanagan, 649 P.2d at 963. While I would not foreclose the possibility of recognizing a defense of this kind in an appropriate case, I would adhere to Flanagan and refuse to recognize such a defense in the absence of outrageous police conduct “shocking the universal sense of justice and violating the concept of fundamental fairness.” Id. at 963. I also think that such a defense would, in effect, involve a prophylactic rule intended by this court to deter such behavior and, as such, should meet the test for prophylactic rules adopted by the Alaska Supreme Court in Copelin and Sundberg. See, e.g., Copelin v. State, 659 P.2d 1206, 1214-15 (Alaska 1983); State v. Sundberg, 611 P.2d 44 (Alaska 1980). While Copelin and Sundberg deal with a prophylactic rule involving suppression of evidence, it seems to me that similar considerations should govern prophylactic rules requiring dismissal of charges. With these considerations in mind, it is clear to me that Vaden should not prevail since the need to deter Snell, and those similarly situated, from engaging in such behavior, would not appear to outweigh the need to prosecute Vaden, and those similarly situated, for their criminal conduct.

Snell’s willingness to shoot foxes does not appear to me to be the kind of outrageous police conduct warranting a prophylactic rule of dismissal. While one could conceive of overzealous Fish and Game officers slaughtering the animals they have sworn to protect in a misguided effort to identify lawless hunting guides, it does not appear on this record that killing of animals by law enforcement officers engaged in undercover activity is widespread. Nor does it appear that Snell set out with the intent to kill animals, though the possibility that he would kill them was certainly foreseeable. Under the circumstances, I would not establish a prophylactic rule of dismissal. Sundberg, 611 P.2d at 50-53.

. Alaska Statute 11.81.420 provides:

(a) Unless inconsistent with AS 11.81.320— 11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order.
(b) The justification afforded by this section also applies when
(1) the person reasonably believes the conduct to be required or authorized by a decree, judgment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or
(2) the person reasonably believes the conduct to be required or authorized to assist a peace officer in the performance of the officer's duties, notwithstanding that the officer exceeded the officer’s authority.

. Chief Judge Bryner’s dissent apparently confuses an entrapment defense for Vaden with a necessity defense for Snell. I agree that Snell had no necessity defense, i.e., his shooting the foxes would not appear to be a "lesser evil” than not shooting them would have been. Compare Nelson v. State, 597 P.2d 977 (Alaska 1979) (describing the necessity defense in terms of the lesser of two evils). I assume, for purposes of this case, that Snell acted illegally in shooting the foxes. I am convinced, however, that Snell's illegal conduct did not seduce or coerce the conduct of Vaden. The jury had to have found that Vaden’s conduct constituted aiding and abetting Snell. It is important to stress that Vaden’s liability is not altogether "vicarious," i.e., resulting solely from his status as an employer or principal. The actus reus of an accomplice’s offense involves conduct {i.e., aiding and abetting) different from the perpetrator's conduct {i.e., firing the gun which resulted in the foxes' death). Vaden is being prosecuted for his conduct, not Snell’s. As we have seen, a finding of "entrapment” involves a two-step process: (1) we must identify specific behavior by undercover police officers, or other agents, of a seductive or coercive nature likely to involve others in criminal behavior and (2) where such behavior exists, we must evaluate it to determine whether it falls below an acceptable standard for the fair and honorable administration of justice. Pascu, 577 P.2d at 1067. Since Snell *789did not engage in behavior likely to seduce or coerce Vaden’s conduct, we never reach the second step. Flanagan, 649 P.2d at 962-63.

Entrapment, even under the objective formulation utilized in Alaska, addresses some, but not all, of the potential problems associated with the use of undercover officers as agents provocateurs. While I would not rule out recognition of a broader defense in an appropriate case, I think it confuses the issue to confound such a new defense with entrapment. For reasons set out in the text of this decision, I do not believe that this case is appropriate for establishing an expanded defense.