Harrison v. State

442 A.2d 1377, 1982 Del. LEXIS 349
CourtSupreme Court of Delaware
DecidedMarch 18, 1982
StatusPublished
Cited by12 cases

This text of 442 A.2d 1377 (Harrison v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. State, 442 A.2d 1377, 1982 Del. LEXIS 349 (Del. 1982).

Opinions

[1379]*1379McNEILLY, Justice

(for the majority):

This appeal requires the Court to interpret and apply the Delaware Entrapment Statute, 11 Del.C. § 432,1 as revised in 1974.

The defendant, Winifred Harrison, was convicted after trial by jury and sentenced on charges relating to her employment as a prison guard at the Smyrna Correctional Institution. The appeal is based upon the Trial Court’s refusal to set aside the jury verdict and hold that entrapment had occurred as a matter of law.

I

The defendant was indicted on two counts of each of the following offenses: Receiving a Bribe (11 Del.C. § 1203); Delivery of a Non-Narcotic Schedule I Controlled Substance (16 Del.C. § 4752); Conspiracy Second Degree (11 Del.C. § 512); Official Misconduct (11 Del.C. § 1211); and Promoting Prison Contraband (11 Del.C. § 1256).

The defendant was a 32 year old woman, married, with one child, who did not drink, smoke, use drugs, or have a criminal record. At the time of the incidents in question, defendant had been employed at the prison for approximately two months.

The State Police were concerned about contraband, particularly drugs, being brought into the Smyrna Institution; a special police task force had been formed. This was a long-standing problem, pre-ex-isting the defendant’s employment by many years.

A prisoner, John Barlow, was concerned about the drug problem because he was a “long-termer”. He wished to make the prison a better place in which to live and to ingratiate himself with the authorities. Shortly after the employment of the defendant, at a meeting with the police lieutenant involved in the task force, Barlow volunteered that, while he had no first-hand knowledge as to the identity of any guard bringing drugs into the prison, he would approach guards he had heard were doing so, and attempt to have them bring in drugs for him. At that time, Barlow named the defendant as one of the guards he would approach. Barlow testified that he singled out the defendant for the reason that the defendant was bringing food into the prison which was technical contraband and, therefore, a violation of prison rules and 11 Del.C. § 1256.

The plan of the police was for Barlow to give a guard the telephone number of his outside drug contact named Dennis, who, in fact, was the police lieutenant with the task force. Then, under the plan, when a guard called Dennis at Barlow’s request, a meeting time and place would be arranged and Dennis would give the guard two ounces of marijuana to deliver to Barlow in the prison together with $100. for the guard’s services.

Barlow approached the defendant and first suggested the subject of smuggling marijuana into the prison for him. He testified that defendant agreed to bring the drug into the prison for him after deliberating for only an hour or two, and that there was no pressure or threat of physical or emotional harm exerted upon her. According to the defendant’s version of how she [1380]*1380was recruited into the scheme, Barlow approached her two or three times a week for a month, begging her to bring in drugs, but she rejected all of his pleas. Defendant related that Barlow would give her the telephone number of his contact on the outside to call, and she would lose it or tear it up, and he would write it out and give it to her again and again. The defendant further testified that she did not inform prison authorities of Barlow’s behavior because she knew from experience that he could be punished severely and because he told her the second time she brought the drug into the prison for Barlow that, since he had promised it to other prisoners, she had to do it again for him or else he would be beaten up by the others for not delivering the drugs as promised.

The police lieutenant (Dennis) testified that, after the defendant telephoned him twice, three meetings were arranged: one at a public rest stop on a main highway near Smyrna; another at a restaurant on the same highway; and the third at the defendant’s home near Smyrna. The officer stated that the defendant appeared nervous and on each occasion was given the opportunity to withdraw, but that she declined each time, stating that she wished to go through with the delivery. The lieutenant added that on two such occasions (separated by about a month) defendant received two ounces of marijuana and $100., delivered the drug to Barlow in the prison 2, and he, in turn, returned the drug to the police. The police officer testified that at no point did he exert force or pressure of any kind upon the defendant.

II

At the trial, the defendant raised the affirmative defense of entrapment. On that issue, the Trial Court stated that it instructed the jury “under the provisions of 11 Del.C. § 432, in substantial accord with Suggested Uniform Jury Instruction (7U)”.3

In reviewing the defendant's motion to set aside the jury’s verdict, the Trial Court [1381]*1381recognized that the motion was based upon the contention that “it is entrapment as a matter of law when a police officer provides a defendant with marijuana and then the defendant merely ‘acts as a conduit’ and delivers the marijuana to a government officer or agent”. The Trial Court also noted the defendant’s assertion that should the Court not find this situation to be an entrapment as a matter of law, there was no evidence of a previous predisposition on the part of the defendant to commit the crime.

The Trial Judge concluded that, under § 432, the defendant’s predisposition to commit the crimes charged was an issue of fact for the jury and that there was sufficient evidence on that issue to go to the jury. On that reasoning, the Trial Court denied the motion to set the jury verdict aside. The defendant appeals from that denial.

Ill

The defendant contests the denial of her motion on three grounds: 1) that she was entrapped as a matter of law; 2) that she was denied due process of law through a conviction based upon overreaching and outrageous police conduct; and 3) that there was no evidence to show that she was predisposed to commit the crimes charged. Before proceeding to a consideration of these arguments, we find it necessary to explore pertinent decisions in this evolving area of the law.

The United States Supreme Court has addressed the issue of entrapment on four major occasions. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), a majority of the Court held that the issue of entrapment was a question for the jury and adopted a legislative intent analysis on the issue. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), the majority promulgated a “subjective test” which focused on the defendant’s predisposition to commit the offense charged. In a concurring opinion penned by Justice Frankfurter, the majority’s “subjective test” was rejected in favor of an “objective test” which emphasized the conduct of government agents. Under this test, a case would be dismissed on the basis of a successful entrapment defense where the conduct of government agents was likely to cause a person of reasonably firm moral character to commit the solicited offense.

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442 A.2d 1377, 1982 Del. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-del-1982.