On certification to the Superior Court, Appellate Division, whose opinion is reported at 186 N.J. Super. 539 (1982).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Schreiber, J. O'Hern, J., concurring.
The issues in this case concern the entrapment defense to a criminal charge as set forth in the New Jersey Code of Criminal Justice (Code), N.J.S.A. 2C:2-12. We are called upon here both to interpret the statutory provision and to determine its constitutionality.
Defendant, Donald Rockholt, an Atlantic City police officer, was convicted of: (1) misconduct in office for selling a motorcycle owned by the Atlantic City Police Department; (2) receiving stolen police identification cards;*fn1 and (3) distributing a controlled dangerous substance. He received an aggregate sentence of eight years incarceration, with no parole ineligibility term, and fines totaling $75 payable to the Violent Crimes Compensation Board. The Appellate Division affirmed. 186 N.J. Super. 539 (1982). The defendant petitioned for certification on several grounds. We granted certification primarily to address the entrapment defense. 93 N.J. 273 (1983). Since the offense occurred after the effective date of the Code, the Code's entrapment provision governs.
The facts are set forth in the Appellate Division opinion and need not be repeated in detail here. For our purposes it is sufficient to note that the defendant expressly conceded the commission of the crimes, which occurred on three separate occasions. On January 22 and 23, 1980, the defendant, after negotiating with two undercover agents of the New Jersey State Police, sold and delivered to the agents a motorcycle owned by the Atlantic City Police Department. In February,
1980, he sold blank Atlantic City police identification cards to one of the undercover agents. Finally, in July, 1980, he sold methamphetamine to the other undercover agent.
In defense, the defendant asserted that the undercover agents had entrapped him into making the illegal sales. Factually, the entrapment defense was predicated on the notion that the defendant needed funds to satisfy his cravings for alcohol and drugs. Although the proofs established that the defendant initiated the transactions in question, the defendant claimed that the undercover agents must have known of his need for money for alcohol and drugs and that they enticed the defendant to make the sales by offering to purchase the motorcycle, identification cards, and controlled dangerous substance. Suffice it to say that the proofs did not establish that the undercover agents had such knowledge and the jury did not find that they induced the sales, although it could have reached such a conclusion under the court's instructions.
The defendant presents two principal legal arguments with respect to the entrapment defense. First, the defendant claims that there are two types of entrapment, subjective and objective, and that the trial court's charge failed to delineate clearly their differences and respective applicability. Second, he asserts that the Code's classification of entrapment as an affirmative defense and its imposition of the burden of proof on the defendant were unconstitutional. An understanding of these contentions requires that the elements of pre-Code entrapment be compared with the elements of entrapment defined by the Legislature in the Code.
Prior to the effective date of the Code, entrapment was a judicially-developed defense. This Court first discussed the defense in State v. Dolce, 41 N.J. 422 (1964). Following the lead of the United States Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932), and
Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958), Justice Francis explained in Dolce that entrapment existed when the criminal design originated with police officials and was implanted in the mind of an innocent person. 41 N.J. at 430. He pointed out that if the defendant were predisposed to commit the crime, the criminal design would not have been sown within an innocent mind, and the defense therefore would not have been available. Id. This differentiation between an innocent and a criminally-predisposed person was based on the recognition that decoys, traps, and deceptions properly may be used to apprehend those engaged in crime or to obtain evidence of the commission of crime. Id. at 431. As stated in Sherman v. United States, supra, 356 U.S. at 372, 78 S. Ct. at 820, 2 L. Ed. 2d at 851: "Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer."
Dolce indicated that stealth and strategy become objectionable police methods when the criminal design is implanted in the mind of an innocent person. 41 N.J. at 431. Under the Dolce reasoning, however, there is no entrapment when the police merely furnish opportunities or facilities for, or aid or encourage the defendant in, the commission of an offense, if the intent had its inception in the defendant's mind. See id. at 431-32; accord State v. Rosenberg, 37 N.J. Super. 197, 204 (App.Div.1955), certif. denied, 20 N.J. 303 (1956). As was said in Dolce, supra, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 41 N.J. at 431; Sherman v. United States, supra, 356 U.S. at 373-74, 78 S. Ct. at 821, 2 L. Ed. 2d at 851; accord State v. Dennis, 43 N.J. 418, 425 (1964).
This subjective concept of entrapment was considered to be an affirmative defense in that the issue would not be submitted to the jury unless supportive evidence was introduced, whether by the State or by the defendant. Dolce, supra, 41 N.J. at 432. Once the defense was raised, however, the burden was on the State to prove beyond a reasonable doubt that police officials
had not entrapped the defendant into committing the act. Id. The ultimate issue was left to the jury. Id.
In State v. Talbot, 71 N.J. 160 (1976), this Court expanded the entrapment defense to make it available in situations involving highly egregious police activity, irrespective of the defendant's predisposition to commit the crime. This second type of entrapment defense was "bottomed on the principle of fundamental fairness." Id. at 168. The rationale, according to the Court, was that the State should not reap benefits from its police officers' use of law enforcement methods that do not "measure up to commonly accepted standards of decency and conduct to which government must adhere." Id. The trial court, not the jury, would decide whether the police had so "overstepped the bounds of permissible conduct" that this entrapment defense would be available. Id.
Thus, before the Code became effective, the courts of this State recognized two types of entrapment: subjective and objective. See State v. Molnar, 81 N.J. 475, 484 (1980) (describing the pre-Code law). The subjective entrapment defense was available when the police had implanted a criminal plan in the mind of an innocent person who otherwise would not have committed the crime. The burden in this type of entrapment case was on the State to prove to the jury beyond a reasonable doubt the absence of entrapment. In contrast, the objective entrapment defense was available when the police conduct was impermissible, even if the defendant had been predisposed to commit the crime. Whether this type of entrapment existed would be determined by the trial court.*fn2
The Code's entrapment provision, N.J.S.A. 2C:2-12, became effective in 1979 and reads as follows:
a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.*fn3
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
N.J.S.A. 2C:2-12 modified the prior law of entrapment in three ways. First, it shifted the burden of proof. Now it is the defendant who must prove by a preponderance of the evidence that he was entrapped. Second, it provided that both the subjective and objective aspects of entrapment are to be decided by the trier of fact. Finally, N.J.S.A. 2C:2-12a(2) changed the definition of entrapment to require both that the police conduct created a substantial risk that the crime would be ...