State v. Pence
150 Wis. 2d 759, 442 N.W.2d 540, 1989 Wisc. App. LEXIS 477 (1989)
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Rule of Law:
In an entrapment defense, evidence of a defendant's subsequent conduct, specifically refusals to commit similar crimes under comparable circumstances, is relevant and admissible to demonstrate a lack of predisposition to commit the charged offense.
Facts:
- Michael Moran, a school acquaintance, repeatedly telephoned Dustin Pence, asking him to obtain various drugs, as Moran was cooperating with law enforcement after an arrest.
- Pence, who was eighteen and had just graduated high school, repeatedly told Moran he could not obtain drugs and was not a dealer, finding Moran's calls intimidating and annoying.
- On June 14, 1987, Pence ultimately met Moran and Officer Scott Bretl (Moran's 'friend') in his driveway, despite Pence's intention to avoid the meeting.
- Pence sold approximately twenty-one grams of marijuana to Officer Bretl on that date.
- That same night, Pence left for Door County with his father, telling his father he had been afraid and did not want to do the deal, and felt guilty and upset.
- Pence had previously purchased marijuana for personal use but had never sold any, and had not shared marijuana in the year prior to June 14, 1987, due to his brother's arrest for dealing.
- On two occasions subsequent to June 14, 1987, Officer Bretl (once with Moran) asked Pence to obtain drugs from Joseph Anderson.
- On both subsequent occasions, Pence refused to obtain any drugs.
Procedural Posture:
- Dustin Pence was charged with delivery of a controlled substance.
- Pence was convicted in the trial court.
- During the trial, the trial court excluded Pence's proffered testimony regarding his two subsequent refusals to sell drugs, ruling it irrelevant to his predisposition defense.
- Pence appealed his conviction to the Court of Appeals of Wisconsin, challenging the trial court's evidentiary ruling.
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Issue:
Does a trial court abuse its discretion by ruling that evidence of a defendant's subsequent refusals to sell drugs is irrelevant to establish a lack of predisposition in an entrapment defense?
Opinions:
Majority - SCOTT, C.J.
Yes, a trial court abuses its discretion by concluding that evidence of a defendant's subsequent refusals to sell drugs is irrelevant to establish a lack of predisposition in an entrapment defense. The court reiterated that entrapment is a defense available when law enforcement induces a defendant to commit an offense they were not otherwise disposed to commit, applying the subjective "origin of intent" doctrine, which focuses on the defendant's state of mind. Predisposition is the state's burden to prove beyond a reasonable doubt after the defendant shows inducement. Wisconsin courts have previously held that evidence of conduct occurring after the charged offense is admissible to rebut the defense of entrapment, specifically subsequent sales by the state to prove predisposition (citing State v. Monsoor and Aller v. State). The court found no fundamental difference in how predisposition evidence operates under character evidence rules (Wis. Stat. sec. 904.04(1)(a) and 904.05(2)) or 'other crimes, wrongs, or acts' rules (Wis. Stat. sec. 904.04(2)), both of which allow specific instances of conduct and do not exclude subsequent acts. The court reasoned that if subsequent sales are relevant when offered by the state to show predisposition, then subsequent refusals to sell under similar circumstances are relevant when offered by the defendant to show a lack thereof. Therefore, the trial court's blanket exclusion of any subsequent acts as irrelevant constituted an error of law and an abuse of discretion. The case was remanded for the trial court to perform a balancing test under Wis. Stat. sec. 904.03 to determine if the probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of issues, or other considerations.
Analysis:
This case clarifies the scope of admissible evidence in entrapment defenses in Wisconsin, affirming that a defendant's subsequent conduct can be relevant to establish a lack of predisposition. It ensures a more balanced evidentiary playing field by allowing defendants to introduce evidence of later refusals to commit similar crimes, just as the prosecution can introduce evidence of later commission of such crimes. The ruling reinforces the subjective nature of the entrapment defense and underscores the importance of a nuanced, fact-specific determination of relevance rather than a categorical exclusion of 'subsequent acts' evidence. This will impact future cases by broadening the types of evidence defendants can use to support their entrapment claims.
