State v. Gambrel

894 P.2d 235, 20 Kan. App. 2d 944, 1995 Kan. App. LEXIS 69
CourtCourt of Appeals of Kansas
DecidedApril 21, 1995
DocketNo. 71,627
StatusPublished

This text of 894 P.2d 235 (State v. Gambrel) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gambrel, 894 P.2d 235, 20 Kan. App. 2d 944, 1995 Kan. App. LEXIS 69 (kanctapp 1995).

Opinion

GERNON, J.:

In this appeal of his conviction of one count of sale of marijuana, Jasper Jody Gambrel claims the trial court erred by failing to give a cautionary instruction.

We affirm.

Robyn Roberts worked as a confidential informant and was sworn as a deputy with the McPherson County Sheriff’s Department. She was paid $2,000 per month and reimbursed for college expenses at McPherson College. She had previous experience in law enforcement.

Roberts met Gambrel at a bar and, after discussing marijuana, went with him to Roberts’ apartment where Roberts, relying on her law enforcement training and experience, simulated smoking marijuana. Roberts asked Gambrel about getting some marijuana and followed up with four phone calls.

[945]*945Gambrel told Roberts on the telephone that he had found some marijuana and that the price would be $45 for a quarter ounce. Roberts agreed to meet Gambrel in a bar but first was fitted with a wire transmitter. The sale took place, and Gambrel was arrested.

Gambrel admitted he sold the marijuana but said he did so only to “get [Roberts] off his back” so that she would quit calling.

Gambrel was tried twice. The first trial ended in a hung jury. He relied on an entrapment defense in the second trial and was convicted.

Gambrel requested that the trial court give the following instruction, PIK Crim. 3d 52.18-A: “You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence.”

The trial court refused to give the instruction, stating as follows:

“The bottom line is I don’t believe that particular instruction applies to a deputized pobce or Sheriff’s officer in this case. And I, it’s uncontested that she is, even though you’ve tried to make tadoo [sic] out of the fact she doesn’t have benefits and nothing was withheld. That doesn’t control whether she was a deputized Sheriff’s deputy and it’s clear from the evidence, and in fact it’s unrebutted she was that. This is meant for the type of informant where someone is plea bargaining or something along those lines. I’m not going to give the instruction. You can take that up on appeal.”

In a criminal action, tfre trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Scott, 250 Kan. 350, 357, 827 P.2d 733 (1992).

Gambrel cites State v. Novotny, 252 Kan. 753, 851 P.2d 365 (1993), and State v. Fuller, 15 Kan. App. 2d 34, 802 P.2d 599 (1990), rev. denied 248 Kan. 997 (1991), to support his contention that it is error not to give a cautionary instruction on the testimony of a paid informant or agent.

Gambrel’s reliance on Novotny and Fuller is misplaced, in our view. In Novotny, the informant had prior contact with law en[946]*946forcement officers and agreed to work as an undercover agent on a “bounty” basis, being paid an amount which was dependent on the quantity and type of drug purchased. The informant was not deputized.

In Fuller, the informant agreed to work for law enforcement officers after he was arrested for selling drugs. The quid pro quo was that his drug charges were dismissed after a few buys. He then was paid a bounty for each buy.

This precise question has not been ruled on in Kansas. The issue is whether a cautionary instruction is required when a confidential informant has beep deputized, is working on a salary which is not dependent on the number or nature of drugs purchased, and has prior law enforcement training and experience. We conclude it is not required under these facts.

In Bush v. United States, 375 F.2d 602, 604 (D.C. Cir. 1967), the court stated:

“It would be anomalous indeed to single out police officers and include them in a category with the so-called police informant, sometimes less euphemistically described as a ‘stool pigeon.’ The law has recognized that some witnesses, the accomplice and informant, for example, should in some circumstances be the subject of a cautionaiy instruction when requested. But it would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion. This would be tantamount to saying that police officers are inherently untrustworthy. The cure for unreliable police officers is not to be found in such a shotgun approach.”

In State v. Mullins, 95 Kan. 280, 302-03, 147 Pac. 828 (1915), our Supreme Court stated the following regarding the testimony of law enforcement officers:

“Detectives perform a valuable and necessary function in modem society. They are merely private citizens trained in the collection of evidence against criminals and in the study of the habits of criminals. Modem governments which are in earnest in seeing that their laws are enforced, that their coinage is preserved from counterfeiting, that their mails are free from molestation and robbery, make free use of detectives and secret service men. The profession of detectives may be regulated by law, but no sound reason can be suggested why their testimony should be singled out as deserving of less credence than the evidence of witnesses in general. Their credibility may be subjected to strict cross-examination, and counsel for the defense may comment freely upon their [947]*947testimony in argument; but even in this respect the same broad range of comment is accorded to counsel to discuss the credibility of all witnesses.”

We must then answer the question as to whether it makes a difference that the informant here was not employed as a “regular” law enforcement officer.

The first response to such a question is that the inherent nature of a confidential informant's role in law enforcement operations is that the informant not be “regular” in the ordinary sense of the word. Perhaps a better view is to compare confidential informants only. Who is more “regular,” a law-enforcement trained and experienced informant who is deputized and who is working on a salary or one who may be attempting to avoid being charged with a crime and/or works for pay based on the number and nature of drugs purchased? Who is more likely to provide credible evidence under the above scenarios? Who is more likely to engage in activities which might be viewed as entrapment? To ask the questions is to answer them.

Our view is that the paid informant instruction is designed for and ought to be given in situations in which the informant has something personally to gain or has a personal interest in making a buy or a contact.

Other states have taken the same view. In State v. Gurule, 194 Neb.

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Related

United States v. Luis Alvaro Hoyos
573 F.2d 1111 (Ninth Circuit, 1978)
State v. Fisher
822 P.2d 602 (Supreme Court of Kansas, 1991)
State v. Fish
850 P.2d 250 (Supreme Court of Kansas, 1993)
State v. Scott
827 P.2d 733 (Supreme Court of Kansas, 1992)
State v. McDonald
824 P.2d 941 (Supreme Court of Kansas, 1992)
State v. Novotny
851 P.2d 365 (Supreme Court of Kansas, 1993)
State v. Fuller
802 P.2d 599 (Court of Appeals of Kansas, 1990)
State v. Gurule
234 N.W.2d 603 (Nebraska Supreme Court, 1975)
Turner v. State
515 P.2d 384 (Alaska Supreme Court, 1973)
State of Kansas v. Roberts
147 P. 828 (Supreme Court of Kansas, 1915)

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Bluebook (online)
894 P.2d 235, 20 Kan. App. 2d 944, 1995 Kan. App. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gambrel-kanctapp-1995.