Flamm contends that the informant and agent Wiley used undue psychological pressure by frequently calling him and asking him questions about selling drugs. This allegation is similar to the allegation rejected in State v. Hoffman, 291 N.W.2d 430 (N.D. 1982). In Hoffman the defendant claimed that a special agent "put a great deal of pressure" on him by calling him at work, several times each day. 291 N.W.2d at 432.
See State v. Overby, 497 N.W.2d 408, 414 (N.D. 1993) (collecting cases). In State v. Hoffman, 291 N.W.2d 430, 431-32 (N.D. 1980), a factually similar case, we affirmed a jury's rejection of an entrapment defense where the informants befriended members of a "drug subculture," used drugs in their presence to gain their trust, and "put a great deal of pressure" on Hoffman to make the drug sale. Here, as in Hoffman, id. at 432, Wolff's actions may have "constituted trickery and deception, but [they] were not of the outrageous and unacceptable nature that § 12.1-05-11, N.D.C.C., is designed to prevent."
North Dakota applies the objective test for entrapment, in which the focus is on the conduct of the law enforcement agents and its likely effect on a normally law-abiding person. E.g., State v. Hoffman, 291 N.W.2d 430 (N.D. 1980). Predisposition of the defendant to commit the crime is irrelevant to the defense, and the defendant has the burden of proving entrapment by a preponderance of the evidence. E.g., Kummer, supra.
In considering an entrapment defense, we have previously rejected claims of undue psychological pressure in inducing one to sell illegal drugs. Kluck, supra [fact that informant was a friend of defendant, that informant stressed that defendant owed him a favor, and that informant's friend desperately needed the drugs, was not per se entrapment]; Flamm, supra [psychological pressure by repeatedly calling and asking for drugs is not per se entrapment]; State v. Hoffman, 291 N.W.2d 430 (N.D. 1980) [befriending defendant, using drugs in defendant's presence, and other "dirty tricks" do not constitute entrapment if not outrageous and unacceptable — it is a technique to gain acceptance in the drug culture]. The jury was correct in determining that the type of "psychological pressure" in this case was not so contrary to public policy as to warrant entrapment.
State v. Flamm, 338 N.W.2d 826, 828 (N.D. 1983); State v. Mees, 272 N.W.2d 284, 289 (N.D. 1978). Predisposition of the accused to commit the crime is irrelevant. State v. Hoffman, 291 N.W.2d 430, 432 (N.D. 1980). Thus, in order to fashion an entrapment defense under NDCC 12.1-05-11, the accused must establish two elements: that law enforcement agents induced the commission of the crime and that the method of inducement was likely to cause normally law-abiding persons to commit the offense.
Furthermore, if a witness is necessary to the defense, the defense should produce, or attempt to produce, the witness himself and not rely upon the State. See State v. Hoffman, 291 N.W.2d 430 (N.D. 1980). The trial court determined that Padgett may have raised the question that Graff was mistaken, but he did not prove recklessness or deliberate falsity.
In the past this Court has rejected much stronger claims of persuasion than alleged in this case. State v. Kluck, supra; State v. Flamm, supra; State v. Hoffman, 291 N.W.2d 430 (N.D. 1980). In applying the principles and facts outlined above the evidence was sufficient to allow the jury to reject Weisz' entrapment defense.
A growing number of states have adopted the objective test. See, e.g., Grossman v. State, 457 P.2d 226 (Alaska 1969); People v. Benford, 53 Cal.2d 1, 345 P.2d 928 (1959); State v. Nakamura, 65 Haw. 74, 648 P.2d 183 (1982); State v. Mullen, 216 N.W.2d 375 (Iowa 1974); People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973); State v. Hoffman, 291 N.W.2d 430 (N.D. 1980); Commonwealth v. Jones, 242 Pa. Super. 303, 363 A.2d 1281 (1976); Craver v. State, 628 S.W.2d 155 (Tex. Ct. App. 1982). In addition, many lower federal courts have focused on the governmental officers' conduct rather than on the defendant's predisposition.
This court, however, has previously considered and rejected claims of undue psychological pressure similar to the claim in the present case. See State v. Flamm, supra; State v. Hoffman, 291 N.W.2d 430 (N.D. 1980). We affirm the judgment of the trial court.
State v. Pfister, 264 N.W.2d 694 (N.D. 1978). See also State v. Hoffman, 291 N.W.2d 430 (N.D. 1980); State v. Unterseher, 289 N.W.2d 201 (N.D. 1980); State v. Folk, 278 N.W.2d 410 (N.D. 1979); State v. Mees, 272 N.W.2d 284 (N.D. 1978). We do, however, find guidance for our decision on this issue from past decisions of this court which developed the law of self-defense prior to the adoption in 1975 of Chapter 12.1-05, N.D.C.C.