Kissick v. State

1972 OK CR 349, 504 P.2d 889

• Court: Court of Criminal Appeals of Oklahoma
• Decided: December 13, 1972
• Docket: A-17588
• Status: Published

Opinions

OPINION

BUSSEY, Presiding Judge:

Appellant, Mike Kissick, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Oklahoma, for the offense of Unlawful Distribution of a Controlled Dangerous Substance; his punishment was fixed at five (S) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Robert Taylor testified that he was employed by the Oklahoma City Police Department. In September of 1971, he was assigned to the vice squad as an undercover agent. At approximately 9:30 p. m. on September 29, 1971, he, Tom Huey and Joe Cooley went to the defendant’s apartment on North Penn. Cooley knocked on the apartment door and the defendant came to the door. Cooley introduced them to the defendant as friends of his. Cooley told the defendant that they “might be interested in buying some cocaine from him that he was selling.” (Tr. 5) They went into the kitchen and sat down at the table. Defendant went into another room and brought back a piece of white notebook paper which was folded up. The defendant unfolded the paper, declaring that the white powdery substance was cocaine or “coke”. Defendant brought a sheet of aluminum foil to the table and instructed Huey to tear off a small piece. The defendant then took a small plastic spoon and “put out what is known as a dime bag of cocaine.” He gave the defendant a Ten Dollar bill and put the tin foil in his pocket. They had a further conversation about the possibility of buying some more drugs later, preferably “hash or heroin.” Upon leaving the apartment, they met with Detectives Scott and Shahan. The evidence was initialed, placed in an evidence envelope and turned over to Detective Scott.

On cross-examination, he testified that the defendant tried to sell them all of the cocaine that he had but they told him that they wanted to try it out first to see if it was any good. He testified that a few days after the initial purchase, they made a second purchase of cocaine from the defendant. He denied that the cocaine from the second purchase came from the same white package.

Officer Scott testified that on the evening of September 29, he introduced Joe Cooley to Officer Taylor at Shepherd Mall. He followed Cooley, Taylor and Huey to an apartment complex on North Pennsylvania. They went into an apartment and remained approximately twenty minutes. He followed them back to Shepherd Mall and was given a small tin foil package by Officer Taylor containing a white powder. The evidence was initialed, placed in a State Bureau Evidence envelope and sealed. The evidence was then placed in the property room of the police station.

On cross-examination, he testified that he knew that Joe Cooley had previously been charged with Possession of LSD.

Officer Willis testified that he removed State’s Exhibit 1 from the property room of the police station and transported it to the laboratory of the Oklahoma State Bureau of Investigation.

William Caveny testified that he was employed as a chemist by the Oklahoma State Bureau of Investigation. He conducted an analysis of the contents of State’s Exhibit 1 and was of the opinion that there was cocaine present in the substance.

Thomas Huey testified that he was a machinist and assisted the police department in making narcotics “buys”. His testimony as to what transpired during the evening in question did not differ substantially from that of Officer Taylor.

For the defense, the defendant testified that he was a senior at Putnam City High School and had known Joe Cooley for approximately one year. He testified the Joe Cooley was a very good friend and that they visited in each other’s homes. On September 9, Cooley informed him that he had started on heroin. Cooley approached him several other times and pleaded with him to get him some heroin. On September 14, Cooley asked him if he could get cocaine. He informed Cooley that he didn’t have anything to do with it. Cooley continued to ask him to obtain cocaine for him. He again told Cooley that he didn’t know any people that sold cocaine but finally agreed to see what he could do. He subsequently purchased the cocaine for him for Forty-five Dollars ($45.00). On September 29, he told Cooley that he had obtained the cocaine and agreed to meet him at 11:00 that night. Cooley, Huey and Taylor came to the apartment and said that they only wanted Ten Dollars ($10.00) worth. He testified that his agreement with Cooley was that he was to get all of the cocaine. He was not familiar with cocaine and Taylor showed him how to measure Ten Dollars worth. They told him that they would meet him later at the “Zig Zag” and get the rest of the cocaine. On October 3, he went to the Zig Zag and had a conversation with Huey. He asked Huey if the powder was cocaine. Huey replied, “Yeah, it’s pretty good” and that they wanted some more. They went back to his apartment and they bought Twenty Dollars ($20.00) worth.

He testified on cross-examination that he was visiting a friend of his at OU and some guy came up asking if anyone wanted to buy a gram of cocaine. He stated, “I have a friend who has been wanting me to get him some.” He denied selling any hashish or other drugs to Cooley prior to September 29.

Joe Cooley testified that he was eighteen years old and a junior at Putnam City High School. He and the defendant were friends and ran around together. On August 26, 1971 he was arrested for Possession of LSD. Shortly thereafter, he agreed to work with the police department in buying drugs. He approached the defendant sometime in September and asked him to get heroin for him. He also on one occasion asked the defendant about cocaine. He testified that he did not ask the defendant to get it from anybody stating, “He already had it.”

On cross-examination, he testified that on September 15, 1971, he purchased what was purported to be mescaline and hashish from the defendant.

Randy Mosier testified that he had known Joe Cooley for about one year. On September 29, he was present in the defendant’s apartment when Cooley, Taylor and Huey arrived. Cooley asked defendant if he had the cocaine and stated that he only wanted Ten Dollars ($10.00) worth. He testified that the defendant did not know how much Ten Dollars worth was. He had previously heard Cooley ask the defendant to get him cocaine or heroin.

Micheál Heenan testified that he was an instructor of English at the University of Oklahoma. He was acquainted with Joe Cooley and had known him for approximately two years. In November of 1971, he had several conversations with Cooley concerning the defendant’s arrest. Cooley stated that he was arrested in August for Possession of LSD and that this influenced his judgment in agreeing to work for the police. He stated to Heenan that he had “set up” several of his friends, including the defendant.

Beverly Phillips testified that on September 29 she met the defendant and Randy at the fair at approximately 9:30 that evening. The defendant stated that he had to go back to his apartment to meet Cooley at 11:00. When she and Susie Smith arrived, “they had some stuff on the table.” Before Taylor, Huey and Cooley left they asked the defendant if he could get them some more cocaine and maybe some “smack”. Defendant stated that he would not because he was doing this only as a favor to Joe.

The sole proposition asserts that the trial court erred in overruling defendant’s demurrer to the evidence and motion to dismiss for the reason that the defendant was entrapped into the commission of the alleged offense. We need only observe that the trial court properly instructed the jury on the defense of entrapment. In Kite v. State, Okl.Cr., 490 P.2d 1402, we cited with approval Riddle v. State, Okl.Cr., 373 P.2d 832, wherein the Court stated:

“Whether a defendant has been entrapped is to be determined by the jury, unless it can be decided as a question of law upon undisputed facts sufficient to to [sic] establish entrapment.”

In the instant case, entrapment could not be decided as a question of law upon sufficient undisputed facts and the question was, therefore, properly submitted to the jury who chose to not believe the defendant’s testimony. The judgment and sentence is accordingly affirmed.

BLISS, J., concurs. BRETT, J., dissents.