Janski v. State

538 P.2d 271, 1975 Wyo. LEXIS 152

• Court: Wyoming Supreme Court
• Decided: July 23, 1975
• Docket: 4348
• Status: Published

Opinions

RAPER, Justice.

Following reversal of the trial court (529 P.2d 201), upon application of the State, a rehearing was granted in this case. It was thereafter argued anew and taken under advisement by the full court. We now set aside the original opinion as improvident and affirm. It is considered advisable to make a complete restatement of the facts in the case to cover the several points raised by the appellant.

The defendant-appellant was charged with delivering a controlled substance in violation of § 35 — 347.14(d) (10) and § 35-347.31 (a) (ii), W.S.1957, as amended. The drug involved was hashish. During the State’s case in chief, a Robert Laabs, with the nickname Haystack, undercover narcotics agent for the Casper police department, testified that after knowing the defendant for about a week, he went to his residence where defendant answered the door, let him in and together they went to the basement of the house, where Laabs asked him if he could buy some hash. Laabs testified that defendant told him he would have to go out to a golf course and get it from a friend of his. There were some teenagers present in the house at the time. After the defendant had been gone approximately 25 to 30 minutes, he returned with two tinfoil-wrapped packages, saying that they were quarter ounces. Laabs bought two of them at $40 each, for a total of $80. After remaining for another 15 or 20 minutes, talking to Janski and the other people in the house, he left and went to his police supervisor’s residence where he delivered his purchase, as evidence.

On direct examination by the State prosecutor, Laabs admitted that several years previously he had been convicted of armed robberies when he was 17 and 18 years of age, been confined in a reformatory and had spent five years in a penitentiary. Following his release, he had gone into a business, found his way into the position of narcotics agent and had worked at that occupation in several different states. Previous to the trial, on a motion in limine by the State, defendant offered to show that the State’s witness Laabs had been arrested for burglary and other offenses, too, but the court ruled that a witness may not, on cross-examination, be asked whether he had been accused of, arrested, indicted or tried for a crime of which he had not been convicted. At the same time, the trial judge also prohibited use of a Denver Post news article in cross-examination of Laabs.

During the course of his testimony, it developed that on occasions the witness Laabs, while acting as an undercover agent, would disguise himself with a Mohican haircut and he said, “[T]he weirder, more I look crazy looking, the more dope I usually buy.” While working for the police department, the witness had bought a couple thousand dollars worth of drugs in this role.

The following exchange took place on cross-examination:

“Q. Do you know whether he [defendant] made any profit on the sale or not?

“A. I believe he did.

“Q. You don’t know though, do you, you don’t know how much he paid.

“A. Well, there were other boys there buying it also.”

The drug was properly linked into a full chain of evidence and the State chemist identified it to be a controlled substance, a derivative of marijuana. The State thereupon rested.

There was an additional charge of the same sort pending against the defendant. It was scheduled to be tried immediately following this one. Since they involved many similarities, one witness mistakenly testified the transaction took place on January 7 when, in fact, it took place on January 6. Defendant at close of State’s case in chief asked for a mistrial, which the trial court denied, and the State was permitted to reopen to straighten out the dates and the defendant was offered an opportunity by the State for a continuance if defendant was unprepared to meet the State’s evidence, which he did not take nor request but proceeded into his defense to the evidence presented.

The defendant established through a city official that the witness Laabs had been employed as an emergency employee and at the time of his employment, it was known that he had a felony record. At every chance, it might be said, defendant played Laabs’ felony convictions to the limit for the benefit of the jury. On direct examination, witness Laabs was called by the defendant and asked whether he carried a gun with him during the time that he was an undercover agent. The witness answered that he carried a .22 derringer, black with a pearl handle. He was asked whether or not he stuck the gun into defendant’s stomach. Laabs denied that he did so.

A witness, Kevin Doing, age 17, was called by the defendant. He testified that Haystack Laabs was discussing drugs in Janski’s basement “and he stood up and gave Gary some money and told him to go get the hash and bring it right back here, he said, don’t mess around with Haystack. He had a gun and pushed it into Gary’s stomach.” Doing described the gun as a .“gray Derringer type pistol, .22, with a white handle.” On cross-examination, Doing said that the gun used had a cylinder and he could see the bullets showing out of the front. On further cross-examination, the prosecutor showed the witness a derringer, regularly marked as an exhibit, and he replied, “[T]his isn’t the gun I saw, the gun had a cylinder right here (indicating) , it had a shorter barrel, the cylinder right here, light gray handle.” He was definite that the weapon used by Laabs had a cylinder. The hand gun displayed to the witness had no cylinder.

Laabs was recalled on State’s rebuttal, handed the same derringer as the one shown to Doing. He identified it as the weapon carried while he was on duty. He also testified that on a day about a week later, he did carry a .38 revolver. Laabs’ supervisor was then called and he testified that on only one occasion had Laabs had possession of a police .38 revolver and it was at a time a week later than the date of the offense being tried. The State had neglected to offer the derringer as an exhibit and upon all the evidence being closed, reopened momentarily, with permission of the court, to do so. It had been marked and shown to both Doing and Laabs, so was no more than a technical correction.

At the close of the State’s rebuttal, the defendant requested an opportunity for surrebuttal and offered to prove' by employees of a Casper Mini-Mart that Laabs had threatened one of them with a revolver. The offer was denied. Later in the opinion, these proceedings will be explained in greater detail.

Following.instructions and argument, the jury retired and returned a verdict of guilty. The defendant was sentenced to the Wyoming state penitentiary for a term and fined $500.00.

The defendant assigns as error the following :

1. Refusal of the court to permit the defendant an opportunity to inquire of the State’s undercover narcotics agent as to his previous criminal activity, not resulting in convictions, in the light of the witness’ rather extensive record of felony convictions.

2. The evidence adduced at trial was insufficient to overcome the defense of entrapment, thereby rendering the verdict contrary to the evidence.

3. The court’s submittal of the issue of entrapment to the jury.

4. The court’s allowing the trial to proceed after the court discovered that evidence had been received concerning the crime for which the defendant had not been convicted and was not then being tried.

5. The court’s denial of surrebuttal by defendant.

The trial court was correct in limiting the cross-examination with respect to any past offenses of Laabs to felonies of which he had been convicted, for purposes of impeachment. The rule, under the facts of this case, is that only evidence of a prior conviction for a felony is admissible to impeach a witness. Gabrielson v. State, Wyo.1973, 510 P.2d 534, 536; Wright v. State, Wyo.1970, 466 P.2d 1014, 1016; Rosencrance v. State, 1925, 33 Wyo. 360, 373, 239 P. 952, 956; Eads v. State, 1909, 17 Wyo. 490, 503, 101 P. 946, 950.¹

The court instructed the jury that when the defense of entrapment is claimed, it is necessary that the State show a predisposition by the defendant to commit the crime.²

The defendant argues that there was no evidence of predisposition.

Without getting into the details of the trilogy ³ of cases of the Supreme Court of the United States on entrapment, we find a good synopsis of the rules to he gleaned therefrom in Anno., Entrapment —Narcotics Offense, 33 A.L.R.2d 886, § 3:

“The cases within the scope of the annotation support the conclusion that the defense of entrapment cannot be successfully interposed by one accused of a narcotics offense if he was already engaged in an existing course of similar crimes, [⁴] or if he had already formed a design to commit the crime with which he was charged, or similar crimes, as where he offered to make a sale prior to any solicitation, or was willing to do so, as shown by ready complaisance, or if the criminal design originated in the mind of the defendant, and the government, having through its agents reasonable cause to believe that the defendant was violating the narcotics laws, merely afforded opportunities or facilities for the commission of the offense, as by the employment of informers or decoys, the use of decoy letters, or other stratagems. * * * ” (Emphasis and footnote supplied.)

It will be observed that there are various alternative ways of establishing predisposition and may be shown by a fashioning of circumstances preceding the sale in which the defendant committed the offense. The facts in this case are very simple and fall within the rule of ready complaisance. They show that Laabs went to the defendant’s residence, asked to buy drugs, the defendant went to his known source, was gone a few minutes and returned. His plan and design to sell became fixed with those preliminaries and were confirmed when the sale was made. From these facts, there is the requisite evidence of predisposition and that is what the cases hold.

As early as State v. Kirkbride, 1925, 34 Wyo. 98, 100, 241 P. 709, 710, this court recognized that:

“ * * * The decisions in cases involving illegal sales of drugs and liquors are practically unanimous in holding that the defense of entrapment is not available where the only solicitation is an offer to buy. ^ ^ ⅜

When the jury discarded defendant’s defense of threat with a hand gun, by its guilty verdict, that is all that was left and the State had carried its burden of proving predisposition. A review of some cases out of the United States Court of Appeals, Tenth Circuit, follows.

In Sandoval v. United States, 10 Cir. 1960, 285 F.2d 605, 607, a case similar to this, the government agent approached the defendant, asked him if he had any heroin, he replied that he had only five caps, for which the agent paid him $35.00, the court stated:

“ * * * It is well settled that while the law will not permit decoys to be used for the purpose of luring or inducing innocent or law-abiding citizens into the commission of a crime, still officers may offer an opportunity to one who is intending or willing to commit a crime. [Citing cases.] It is quite clear that Sandoval was not entrapped into making the sale to Chavez. The evidence is without conflict that he approached the car driven by Chavez and, when he recognized him, entered the automobile with the narcotics in his possession. He had known Chavez for a long time, and he made the sale without asking any questions, immediately after Chavez asked him if he had any heroin. He was ready, willing and able to make the sale when he entered the automobile.”

The same situation existed in Wood v. United States, 10 Cir. 1963, 317 F.2d 736, 738, -where the agent told the defendant he wanted some narcotics and they were sold to him. The court said:

“ * * * These facts are again undisputed and bring the case well within the creation of a simple opportunity to commit a crime as described in Hester v. United States, 303 F.2d 47 (10th) Cir., * * *."

In Hester v. United States, 10 Cir. 1962, 303 F.2d 47, 49, cert. den. 371 U.S. 847, 83 S.Ct. 80, 9 L.Ed.2d 82, the “special employee” testified:

“ ‘I told him (appellant) that I would like to purchase some narcotics, and he said he thought it was possible, and I purchased three capsules of heroin from him.’

“Appellant did not testify and the informer’s version of the purchase remained totally uncontradicted.

“We find no merit to the contention that the issue of entrapment rests against this background of events. Rather the circumstances point directly to the establishment of a simple opportunity to commit crime with the appellant subjectively mistaking the safety of the circumstances. This is not entrapment. * * *"

In Marshall v. United States, 10 Cir. 1961, 293 F.2d 561, cert. den. 368 U.S. 898, 82 S.Ct. 175, 7 L.Ed.2d 94, reh. den. 368 U.S. 949, 82 S.Ct. 387, 7 L.Ed.2d 345, the defendant sought to have entrapment established as a matter of law, when the agent approached the defendant, asked to buy some amphetamines and they were sold. That court concluded such evidence did not establish entrapment as a matter of law and the issue having been submitted to the jury upon appropriate instructions, there was no entrapment.

The cases are so voluminous on the point that it is really unnecessary to go any further.⁵. However, we are particularly impressed by United States v. Rodrigues, 1 Cir. 1970, 433 F.2d 760, 762, cert. den. 401 U.S. 943, 91 S.Ct. 950, 28 L.Ed.2d 224. It was also a simple case of solicitation and sale. Nothing more. The court said:

“It is true that the government did not produce evidence of appellant’s prior connection with the narcotics trade. Although such evidence is admissible to rebut a proferred defense of entrapment, it is not the only means available to the government to meet its burden. A jury can find predisposition beyond a reasonable doubt by looking to the totality of circumstances involved in the particular transactions in question. Otherwise, a first offender, disposed to commit the crime for which he is charged, would find sanctuary in the entrapment defense merely because the government would be unable to prove prior nonexistent activities. The entrapment defense does not require such a result. * * * ”

The facts as submitted by the State’s case in chief fulfilled the requirements of proof of predisposition. The jury chose to accept the State’s evidence and reject the defendant’s testimony of coercion with a firearm. A jury question was presented by the evidence. It was up to the jury to believe or disbelieve Laabs, in spite of his past felony record. Though the appellant-defendant makes much of this fact, it is not for this court to judge the testimony in the case, where there is a conflict and to do so would usurp the function and authority of the jury. We have no right to say that a particular person or type of individual with a felony conviction, cannot be a witness, which is what we would be doing if we set aside Laabs’ testimony. If he was acceptable to the jury, he was acceptable to the community, which the jury represents and this court when we must permit the jury to be supreme in its domain of fact finding.⁶ The defense of entrapment was not established as a matter of law. The crucial question is for the jury when there is a conflict of evidence. LaFleur v. State, Wyo.1975, 533 P.2d 309, 314; Dycus v. State, Wyo.1974, 529 P.2d 979, 981; Montes v. State, Wyo.1974, 527 P.2d 1330, 1332; Higby v. State, Wyo.1971, 485 P.2d 380; State v. Kirkbride, supra.

While there was some confusion as to which case was being tried, there is no indication that the jury received any prejudicial evidence or implications, because the transcript indicates that the matter of confusion if in fact it did exist, was presented to the court alone and outside the hearing of the jury; from what we can see in the transcript, the jury could have been completely oblivious to any mixup. It is apparent that the defendant was prepared to go ahead with his defense and had his witness, Doing, present along with other witnesses. The defendant was entitled to a fair trial but not necessarily a perfect one.

Turning now to the question relating to the additional evidence offered by the defendant as surrebuttal, we think the matter has been settled by a statute of the State of Wyoming and case law as well. The defendant was not entitled to surrebuttal, as a matter of right.

After both parties had rested their cases at the day’s end, defendant moved to be allowed to reopen testimony and stated as a reason that as a result of the .22 derringer being admitted into evidence on the State’s reopening, he now had something to rebut. The trial judge agreed to allow the defendant to reopen briefly. However, the next morning, after some reflection, the court asked defense counsel to dictate his request into the record. Defendant then in greater detail repeated his motion for sur-rebuttal to show through two witnesses from a Casper Mini-Mart that they had seen the witness Laabs on a number of occasions with a .38 caliber revolver and he had threatened one of the proposed witnesses for being a “snitch” because he had called the police when Laabs tried to sell him some drugs and he refused. Furthermore, another witness would testify that Laabs had threatened two friends of hers with a gun and ordered them out of Casper and told them if they came to Casper, they would be arrested for selling narcotics.

The foregoing offer was claimed to be néwly discovered evidence but during the taking of testimony at the trial, some of these circumstances were hinted at by defendant, naming at least one of the proposed witnesses. After questioning of counsel closely and explaining his position,⁷ the trial judge denied the request for surrebut-tal.

Section 7-228, W.S.1957, prescribes the order in which criminal trials shall proceed and, in part, states:

“ * * *

“Fourth — The state will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief .[⁸]

* * * ”

(Footnote supplied.)

Whether or not the person engaged to buy narcotics for the State had a weapon was no part of the State’s case in chief. The defendant by way of a defense opened the subject of the witness Laabs shoving a weapon into the stomach of the defendant, to persuade him to sell narcotics. The State is normally entitled to open and close the evidence. Introduction of the .22 caliber derringer into evidence was not new evidence in the sense that it would be a part of the State’s case in chief. The matter of getting the derringer into evidence before it concluded its rebuttal was only an oversight on the part of the prosecution. It had already been produced and shown not only to defendant’s witness Doing but also to the witness Laabs during the course of his testimony when he had been called as a witness for the defense and was fully before the jury anyway. At that time, when he was testifying upon call of the defendant, Laabs stated that he had never pointed a gun at anybody and told them that they had to sell drugs and specifically denied pointing the gun at Janski.

It was during the defendant’s case that Kevin Doing was called back for cross-examination. It was then that the weapon was handed to Kevin Doing and he was asked about it and he said that was not the gun and that the weapon used had a shorter barrel and a cylinder. The weapon being completely before the jury, it was only a small detail to offer and have it received in evidence. The event of its formally becoming a part of the record is but a frail ground for surrebuttal. The defendant had his opportunity to attack the credibility of the witness Laabs during his own case and passed it up.

As said in State v. Alexander, 1958, 78 Wyo. 324, 347, 324 P.2d 831, 839, cert. den. 363 U.S. 850, 80 S.Ct. 1630, 4 L. Ed.2d 1733, in dealing with the denial of surrebuttal:

“ * * * While it is true, as explained by Wigmore, supra, § 1874, pp. 517-518, and 1 Chamberlayne, The Modern Law of Evidence, § 383, pp. 516-517, that new facts brought out on rebuttal may properly be met by surrebuttal evidence, that rule does not permit surrebuttal merely to supply evidence which could have been given in chief or to cumulate additional evidence or to fortify evidence already given, or to supplement such evidence because it has been impeached upon rebuttal. * * * ”

A word of caution in reading Wigmore, as cited in State v. Alexander: the cases cited in footnote 2 at page 518 in support of the rule deal with cases in which the State put in new facts in its rebuttal which were properly a part of its case in chief! In the instance here, the gun bit in rebuttal was no part of the State’s case but only designed to meet defendant’s defense. Neither of the State’s rebuttal witnesses were new witnesses, they had been called by the defendant himself, during his case; they could have then been impeached by the surrebuttal witnesses proposed during defendant’s case and as a matter of fact were called by defendant to lay the ground work for that purpose. It was discretionary with the court as to whether to allow surrebuttal and as mentioned in Alexander, quoting Wigmore from page 517:

“ ‘In general, such discretionary variations should be liberally dealt with; for nothing can be more irrational or more unjust than to apply the judicial lash of a new trial to errors of trivial importance.’ ”

See also Keffer v. State, 1903, 12 Wyo. 49, 73 P. 556, where surrebuttal was denied when the court decided that rebuttal testimony by the State was not a necessary part of the State’s case in chief.

We find no prejudicial error by the trial court.

Affirmed.

1 . For an interesting discussion of the rule, see McCormick et al. on Evidence, 2d Ed., HB, § 43, beginning on page 84.

2 . Instruction No. 7 in its entirety is as follows :

“Defendant claims the defense of entrapment.

“Broadly speaking, the defense of entrapment is accorded to a defendant by law, in order to prohibit law enforcement officers from instigating criminal acts by persons otherwise innocent, in order to lure them to commit the crime, and then to punish them.

“If a person has no previous intent or purpose to commit the crime charged, but is induced or persuaded by law enforcement agency to commit the crime, he is a victim of entrapment.

“A defendant who has been entrapped, although otherwise guilty in all respects, must be acquitted of the crime committed as a result of the entrapment.

“To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent, and the trap for the unwary whose criminal conduct was due to his own readiness and who himself planned to commit the crime.

“Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police. The fact that officers or employees of the government merely afford opportunities, or some of the means or facilities for the commission of the offense, does not defeat the prosecution. Nor will the mere fact of deceit. Infiltration and limited participation by a police employee in unlawful practices, to gain the confidences of wrongdoers, is a recognized and permissible means of apprehension. It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment is available.

“With the foregoing introduction, you are then specifically instructed:

“The principal element in the defense of entrapment is the presence, or absence, of the defendant’s predisposition to commit the crime.

“If you conclude there is reasonable doubt whether any defendant had the previous intent or purpose to commit the offense in his case, and that he committed or participated in the offense only because he was induced or persuaded to do so by the police employee and police activity, then you must acquit that defendant.

“But, where a person has a predisposition, the willingness and the readiness to commit the crime, the mere fact that the police and the police employee provide what appears to be a favorable opportunity to do so, is not entrapment.”

3 . United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249.

4 . There are lurking dangers involved to the prosecution when it evidentially explores the drug peddling background of a defendant charged with delivery of a controlled substance. See, for example, Hmsford v. United States, 1962, 112 U.S.App.D.C. 359, 303 E.2d 219, where the defendant raised the defense of entrapment and the State came back to prove his criminal record to show a predisposition to commit the instant offense. It was found to be reversible error by the court because as it said at page 225:

“There is a well settled rule that it is ordinarily reversible error for the trial court to admit evidence of an offense other than the one on trial. * * *

and went on to say at page 226:

“ * * * There was no arrest for the alleged prior offense and thus no indictment or conviction. In these circumstances the defendant had no opportunity to prepare to defend against this other charge and no means of combatting it, save by his own unsupported testimony in denial of the officer’s testimony. * * * ”

We here confine our holding to the facts of this case and set no standards for other means by which the entrapment defense may be met.

5 . See the collection of cases in Anno., Entrapment To Commit Narcotics Offense, 62 A.L.R. 3d 110, § 4, and Anno., Modern Status of the Law Concerning Entrapment to Commit Narcotic Offense — Federal Cases, 22 A.L.R. Fed. 731, 739, § 4.

6 . We must lay aside any individual attitudes about Mr. Laabs in dealing with the issues of law. In the recent case United States v. Russell, supra, Mr. Justice Relinquish speaking for the majority of the United States Supreme Court, said at 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366, 375:

“Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court’s opinions in Sorrells and Sherman in order to bar prosecutions because of what they thought to be, for want of a better term, ‘overzealous law enforcement.’ But the defense of entrapment enunciated in those opinions was not intended to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations. * * ⅜ ”

7 . “I think these are collateral matters, the only issue involved in the testimony was raised by the defense witness as to seeing the pistol, which he identified as a revolver pointed at the Defendant. The rest of these matters are proposed by Mr. Whitaker appear to the Court to be collateral matters, not related to the issues at the trial, with the possible exception of the disposition of the State’s witness Laabs. If the Defendant had stated to the Court that he desired to hold the trial open, which he had an opportunity to do, it might have a different situation. I recall that Mr. Whitaker had said he was trying to locate a couple of witnesses, but hadn’t been able to find them, and we then proceeded with the closing on both sides. I think we should proceed with the trial, after the closing by both sides, and the Instructions, and Mr. Whitaker’s request will be denied.”

8 . The full statutory provison is as follows: “After the jury has been impaneled and sworn, the trial shall proceed in the following order:

“First — The counsel for the state must state the case of the prosecution, and may briefly state the evidence by which he expects to sustain it;

“Second — The defendant or his counsel may then state his defense and may briefly state the evidence he expects to offer in support of it, or may wait until the evidence on the part of the state is closed;

“Third — The state must first produce its evidence; the defendant will then produce his evidence;

“Fourth — The state will then be confined to rebutting evidence unless the court, for good reasons, in furtherance of justice, shall permit it to offer evidence in chief;

“Fifth — When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it;

“Sixth — Before the argument of the case is begun, the court shall immediately, and before proceeding with other business, charge the jury, which charge shall be reduced to writing by the court, if either party request it, and such charge or charges, or any other charge or instruction provided for in this section, when so written or given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court, and all written charges and instructions, shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case;

“Seventh — When the evidence is concluded, and the charge given by the court, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state shall conclude the argument to the jury.”