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63 Haw. 536

631 P.2d 181

State v. Provard

Hawaii Supreme Court

Decided July 21, 1981

Hawaii Supreme Court · decided 1981-07-21

Key passage — most relied on by later courts

“[I]f the defendant is released outright some time after arrest but thereafter is charged with the same offense for which the defendant was arrested and held to answer, the time runs from the date of the filing of the charge. Were it otherwise, the time for trial would begin running because of the action of the police ... even though the prosecutor later concluded he had insufficient evidence to file a charge and caused the outright release of the defendant.”

quoted by 2 later decisions, including State v. Cenido, State v. Visintin

“Under the objective view, the focus of inquiry is not on the predisposition of the defendant to commit the crime charged, but rather is on the conduct of the law enforcement officials... . .... The language of the section allows for a stricdy objective inquiry into the entrapment issue. The main concern is whether the conduct of the police or other law enforcement officials was so extreme that it created a substantial risk that persons not ready to commit the offense alleged would be persuaded or induced to commit it. The focus is on the police conduct and its probable effect on a ‘reasonable person.’ No attention is directed toward the state of mind of the particular defendant in determining the entrapment issue.”

quoted by 1 later decision, including State v. Nakamura

Relies on Terry v. Ohio · State v. Kaluna · State v. Goudy

Good law ✅— No negative treatment on recordhow we know

Decided 1981-07-21

How this case has been cited

Cited by 9 later decisions — most recently February 2018

9 state decisions

501981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Curiam.

¶1 Defendant-appellant John Tonkin Provard appeals a judgment of conviction entered against him in the circuit court on March 14, 1979, after a jury found him guilty of attempted theft in the first degree under §§ 705-500(l)(a) and 708-831(l)(b), Hawaii Penal Code (HPC).

¶2 Appellant claims the trial court erred in denying (1) his pretrial motion to dismiss indictment because the government did not try him within six months after his arrest; (2) his pretrial motion to suppress evidence because of the unreasonable manner in which the search was conducted by the police; and (3) his motion for judgment *537 of acquittal because he was entrapped as a matter of law. We see no error and affirm appellant’s conviction.

¶3 I.

¶4 On September 23,1977, appellant was arrested for the crime for which he stands convicted. Within a few hours he was released without any formal charge being lodged against him.

¶5 Thereafter, on March 1, 1978, appellant was indicted and trial was set for May 8. By agreement, the trial was-continued and appellant was tried the following year on January 29, 1979.

¶6 The principal witness against appellant was Mark Estanique, who had agreed with the police to obtain evidence against appellant for a $100 fee. Estanique then called appellant to arrange the sale of two stolen typewriters. These typewriters had not been stolen by Estanique; they were stolen by others and were being held in custody by the police. Estanique delivered the typewriters to appellant’s place of employment and sold them to appellant for $85.00 each. The event was monitored by police through a transmitter wired on Estanique’s person. At the same time, the police also had the premises under surveillance.

¶7 A search warrant was later secured by the police; upon execution thereof, the police entered the premises with guns drawn. Appellant was then arrested.

¶8 II.

¶9 Appellant contends he was entrapped 1 as a matter of law. In short, he claims that the methods employed by the police created a *538 “substantial risk” that induced him to commit the crime. § 702-237(l)(b).

¶10 In State v. Kelsey, 58 Haw. 234, 566 P.2d 1370 (1977), we viewed entrapment as a jury question, unless the evidence is undisputed and so clear it presents a legal question as a matter of law.

¶11 The trial court was correct in leaving it to the jury to decide the entrapment issue. The undisputed portion of the evidence shows that: Estanique had told the police that appellant was a “fence”; Estanique had been selling stolen goods to appellant for a period of two years; the . police enlisted the aid of Estanique for a fee; Esta-nique was given two stolen typewriters which came from the property room of the police; and Estanique was told to sell them to appellant at any price.

¶12 However, disputed portions of the evidence were whether appellant required strict proof of identification of the goods sold; the number of occasions appellant had met Estanique over the course of two years and whether appellant had previously purchased 50 to 60 typewriters from Estanique.

¶13 The affirmative defense of entrapment focuses on the conduct of the law enforcement officials as to whether the police conduct was so extreme that it created a substantial risk that a person would be induced to commit the crime. State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977).

¶14 As there was a conflict in the evidence relating to whether the police conduct created the “substantial risk” complained of, the trial court correctly left this issue to the jury to resolve.

¶15 III.

¶16 Appellant complains that the police executed the search warrant in an “unreasonable manner,” citing State v. Martinez, 59 Haw. 366, 580 P.2d 1282 (1978); State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974). The police entered defendant’s premises with shotguns and drawn revolvers. Consequently, appellant contends that the unreasonable behavior of the police requires suppression of the evidence.

¶17 The record shows that the police entered the premises not only to execute the search warrant but also to arrest appellant. The police knew that appellant had access to firearms. We do not view the safety *539 precaution taken by the officers to be unreasonable. See Terry v. Ohio, 392 U.S. 1 (1968); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971).

Stephen T. Hioki (Erick T. S. Moon, Moon 6? Hong of counsel, on opening brief; Matthew S. K. Pyun.Jr., with him on reply brief) for defendant-appellant. Arthur E. Ross, (Albert H. Esposito on answering brief), Deputy Prosecuting Attorneys, for plaintiff-appellee.

¶18 IV.

¶19 Appellant contends he was not tried within six months after his arrest. He points out that the relevant time period from September 23, the date of his arrest, to May 8, the initial trial date, covers seven-and-a-half months. Under Rule 48, 2 Hawaii Rules of Penal Procedure, he asserts he was entitled to a dismissal. In State v. Johnson, 62 Haw. 11, 608 P.2d 404 (1980), we held that if a defendant is released outright some time after árrest but thereafter is charged with the same offense for which he was arrested and held to answer, the time runs from the date of the filing of the charge. Johnson is dispositive of defendant’s point of error.

¶20 Other issues raised are without merit.

¶21 Affirmed.

1

¶22 Hawaii Penal Code § 702-237 Entrapment. (1) In any prosecution, it is an affirmative defense that the defendant engaged in the prohibited conduct or caused the prohibited result because he was induced or encouraged to do so by a law enforcement officer, or by a person acting in cooperation with a law enforcement officer, who, for the purpose of obtaining evidence of the commission of an offense, either:

(b) Employed methods of persuasion'or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it.
2

¶23 Rule 48. DISMISSAL.

(b) By Court. Except in the case of traffic offenses, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months from:
(1) the date of arrestor of filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made;
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