Rivera v. State

846 P.2d 1, 1993 WL 974
CourtWyoming Supreme Court
DecidedJanuary 25, 1993
Docket91-223
StatusPublished
Cited by18 cases

This text of 846 P.2d 1 (Rivera v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rivera v. State, 846 P.2d 1, 1993 WL 974 (Wyo. 1993).

Opinions

CARDINE, Justice.

Calik Rivera appeals his conviction for possession of a controlled substance with intent to deliver, in violation of W.S. 35-7-1031(a)(ii) (1988). Most of his challenges center on the propriety of the reverse sting operation which led to his conviction. He also challenges the transactional immunity given to a witness who testified against him. Finding no error in the issues he presents, we affirm.

Appellant states the issues as follows:

I. Whether the trial court erred in instructing the jury on the entrapment issue based upon the assumption that Wyoming had adopted the subjective theory as the sole rationale for the entrapment defense?
II. Whether the trial court erred in denying defendant’s motions to dismiss on the grounds of the objective theory or due process where the evidence of the prosecution demonstrated the police creation of crime, an overzealousness in developing cases, and the disregard of state statutes and regulations?
III. Whether the conviction of the appellant must be reversed because it was obtained by the police violating applicable statutes and regulations forbidding the importation and transfer of contraband except in the course of the investigation of ongoing crime?
IV. Whether testimony produced pursuant to a grant of transactional immunity in disregard of applicable statutes was critical to the prosecution’s case and its wrongful admission requires reversal?

The State adds one issue for our consideration:

Whether appellant has standing to challenge the grant of immunity to Frank Compton?

Appellant was apprehended as part of an undercover “reverse sting” operation in which Jackson, Wyoming police officers [3]*3sold marijuana to persons they had targeted as drug dealers. To conduct the operation, the officers obtained about 100 pounds of marijuana from the Colorado Springs, Colorado police department. They placed the marijuana in a motel room at the 49’er Motel in Jackson and set up a video camera and a hard wire microphone for surveillance in an adjoining room.

To lure suspects into the motel room to make purchases, the police employed an informant named Frank Compton. Compton, a drug addict, had been arrested after attempting to unlawfully obtain cough syrup with codeine at two drug stores in Jackson. After his arrest, Compton agreed to help ferret out drug traffic in Jackson in exchange for having the charges against him dropped. As part of his duties for the police, Compton was to introduce suspected dealers to undercover officers.

Acting under police supervision, Compton introduced undercover officer John Bowers to appellant at appellant’s residence'. Appellant agreed to meet Officer Bowers and Frank Compton at the 49’er Motel to transact a drug deal. At the motel, Bowers, posing as a drug dealer, offered three pounds of marijuana to appellant for $800.00 a pound. This was $400.00 per pound less than the going rate. Appellant had only $1,350.00, so Bowers agreed to “front” him another $1,150.00 worth of marijuana, for a total of three pounds.1 The two men exchanged the money and marijuana, and appellant left the motel room. Appellant was apprehended shortly thereafter with the marijuana.

Failure to Instruct on Objective Theory of Entrapment

In his first issue, appellant argues that the trial court committed reversible error when it failed to instruct the jury on an objective, as well as subjective, theory of entrapment. He assigns as error the omission of the following requested statement from the jury instruction on entrapment:

[Entrapment occurs only when the criminal conduct was the product of the creative activity of the law enforcement officials. It does not arise if one is ready to commit the offense given but the opportunity.

The subjective theory of entrapment focuses on a particular defendant’s intent or predisposition to commit the crime charged, while the objective theory focuses on the effect of the State’s tactics on the hypothetical “reasonable law-abiding citizen.” See LaFleur v. State, 533 P.2d 309, 314 (Wyo.1975); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 (1932) (subjective theory); United States v. Russell, 411 U.S. 423, 439, 93 S.Ct. 1637, 1646, 36 L.Ed.2d 366 (1973) (objective approach advocated by Stewart, J., dissenting). See also Laura Gardner Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory from Sorrells to Matthews, 32 Ariz.L.Rev. 605, 607 (1990).

The language appellant requested can be found in our entrapment cases. See e.g., Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986). However, it is not “objective theory” language, as appellant claims. Although the first of the two statements appellant requested mentions the “creative activity of law enforcement officials,” it does not adopt the objective theory. Even in subjective theory, there is a threshold question whether the police merely offered the defendant an opportunity to commit the crime or whether they somehow induced the defendant to act illegally. Once it has been determined that inducement is involved, the defendant’s predisposition comes into question. This first sentence merely restates the threshold question of the subjective inquiry. Its origin is Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), a case which took the subjective view of entrapment. See Dycus v. State, 529 P.2d 979, 981 (Wyo.1974).

The second sentence which appellant requested actually concerns predisposition, and so it is difficult to understand how it could support the objective theory. In fact, [4]*4both sentences are standard, subjective entrapment language. Even had they been included, they would not have presented the objective theory of entrapment to the jury. In any case, appellant was not entitled to present that theory, because we do not recognize the objective theory of entrapment in Wyoming.2

A review of our past cases on this subject shows that Wyoming follows the subjective approach to entrapment. See Noetzelmann, 721 P.2d at 581; Wright v. State, 670 P.2d 1090, 1102 (Wyo.1983) (Rose, J., dissenting), reh’g denied, cert, granted, opinion modified and remanded, 707 P.2d 153 (Wyo.1985); Janski v. State, 538 P.2d 271, 274-76 (Wyo.1975); Dycus, 529 P.2d at 980-81; Montez v. State, 527 P.2d 1330, 1331-32 (Wyo.1974); Jackson v. State, 522 P.2d 1286, 1288-89 (Wyo.1974); Higby v. State, 485 P.2d 380, 384 (Wyo.1971). See also W. Michael Kleppinger, Note, Criminal Procedure—The Entrapment Defense—The Determination of Predisposition. Janski v. State, 538 P.2d 271 (Wyo.1975), XI Land and Water L.Rev. 265, 270 (1976). But see La-Fleur, 533 P.2d at 314 (taking no position on the subjective/objective issue).

As a part of his argument, appellant urges us to either abandon the subjective theory or supplement it with the objective. We note that the subjective theory has been adopted by the majority of the states.

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Rivera v. State
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Bluebook (online)
846 P.2d 1, 1993 WL 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-state-wyo-1993.