State v. Graham

In State v. Graham, 259 Neb. 966, 614 N.W.2d 266 (2000), the uncontroverted evidence established that based on an informant's identification of the defendant as a person who dealt in illegal drugs, an investigator arranged to meet the defendant and used a false identity to gain the defendant's consent to enter the defendant's house. After the investigator and the informant were inside for some time, the defendant voluntarily offered them some marijuana to smoke, and when the investigator later asked to purchase some marijuana from the defendant, the defendant offered to sell what he had and agreed to try to locate more. The next day, the defendant readily responded to the investigator's request by accepting $ 50 and taking the investigator to a location where the defendant obtained marijuana which he then gave to the investigator. The defendant argued with respect to governmental inducement that the investigator had initiated the marijuana sale and that this evidence met his burden of establishing that the State had induced his crimes. The Graham court, citing State v. Swenson, 217 Neb. 820, 352 N.W.2d 149 (1984), said that the single fact that an undercover police officer, personally or through an informant, offers to purchase or obtain marijuana is not an inducement to commit a crime resulting in the availability of the entrapment defense. The court also cited State v. Lampone, 205 Neb. 325, 287 N.W.2d 442 (1980), for the proposition that where a person already has the readiness or willingness to violate the law, the fact that an officer or agent provides a favorable opportunity for the violation does not constitute entrapment. The Supreme Court in Graham noted that its holding from State v. Swenson, supra, that the single fact of an offer to purchase is not an inducement sufficient to make the entrapment defense available is consistent with other authorities, citing Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); State v. Nelsen, 89 S.D. 1, 228 N.W.2d 143 (1975); People v. Margaret Jones, 48 Mich. App. 334, 210 N.W.2d 396 (1973); and Hawthorne v. State, 43 Wis. 2d 82, 168 N.W.2d 85 (1969). The Graham court noted that other authorities have identified four principal "inducements": appeals to friendship, appeals to sympathy, offers of excessive amounts of money, and appeals to the seller's addition. The Graham court also said that for a defendant to establish that he or she was induced to violate the law, the inducement must have been undue or prolonged, consisting of persistent pressure or insistent persuasion. The Graham court concluded that the evidence before it relating to inducement was simply that the investigator offered to purchase marijuana, which evidence was "not more than a scintilla of evidence of inducement and, therefore, was insufficient to carry [the defendant's] burden of going forward with respect to the first element of the entrapment defense." 259 Neb. at 976, 614 N.W.2d at 273.