STATE V. SAINZ, 1972-NMCA-133, 84 N.M.
259, 501 P.2d 1247 (Ct. App. 1972)
CASE HISTORY ALERT: affected by
1991-NMCA-149
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
KENNY SAINZ, Defendant-Appellant
No. 876
COURT OF APPEALS OF NEW MEXICO
1972-NMCA-133, 84 N.M. 259, 501 P.2d 1247
September 29, 1972
Appeal from the District Court of San Juan County, Musgrove, Judge
COUNSEL
DAVID L. NORVELL, Attorney General, VICTOR MOSS, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for Plaintiff-Appellee.
BENJAMIN S. EASTBURN, THOMAS J. HYNES, Farmington, New Mexico, Attorneys for Defendant-Appellant.
JUDGES
HENDLEY, Judge, wrote the opinion.
WE CONCUR:
Ray C. Cowan, J., B. C. Hernandez, J.
OPINION
HENDLEY, Judge.
"'The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.'"
The government in Russell argued that "... one altogether forfeits an entrapment defense if he is 'predisposed' to commit the crime."
"We need not resolve the precise issue apparently presented by the parties. For regardless of the significance of 'predisposition' as an element in 'entrapment,' we conclude that there is merit in Russell's contention that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise...."
{*261} {8} We agree with defendant's statement that "... as the part played by the state increases, the importance of the defendant's predisposition and intent decreases, until at some point entrapment as a matter of law is reached...." When the state's participation in the criminal enterprise reaches the point where it can be said that except for the conduct of the state a crime would probably not have been committed or because the conduct is such that it is likely to induce those to commit a crime who would normally avoid crime, or, if the conduct is such that if allowed to continue would shake the public's confidence in the fair and honorable administration of justice, this then becomes entrapment as a matter of law. Carbajal-Portillo v. United States, 396 F.2d 944 (9th Cir. 1961); United States v. Bueno, 447 F.2d 903 (5th Cir. 1971); United States v. Russell, supra; Sherman v. United States, supra.
{9} Here the state's "creative activity" has risen to a level substantially more intense and aggressive than the level tolerated by most courts. In this case, in reality, the government virtually supplied the sine quo non of the offense. See People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765 (1961).
{10} It is fundamental that the basic thought behind the doctrine of entrapment is that officers of the law should not incite crime merely to punish the perpetrator. The question of accused's predisposition tends to a subjective standard which varies from case to case and person to person. The issue is better framed in "... the objective terms of whether persons at large who would not otherwise have done so would have been encouraged by the government's actions to engage in crime. The focus... [should be] on the activities of the government and their relation to the reasonable man." Working Papers of the National Commission on Reform of Federal Criminal Laws, Comment on Entrapment, July 1970, Vol. I, p. 303. Otherwise the doctrine of entrapment will remain as "... gropingly... [expressing] the feeling of outrage at conduct of law enforcers... but without the formulated basis in reason that it is the first duty of courts to construct...." Sherman v. United States, supra; Comment, The Constitutional Status of the Entrapment Defense, 74 Yale L. Rev. 942 (1965).
{11} Reversed and remanded with directions to set aside the judgment and discharge the defendant.
{12} IT IS SO ORDERED.
WE CONCUR:
Ray C. Cowan, J., B. C. Hernandez, J.