State v. Givens

• Decision Date: 25 February 1998
• Docket Number: No. 97-1248-CR,97-1248-CR
• Citation: 217 Wis.2d 180,580 N.W.2d 340
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Clarence GIVENS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 340

580 N.W.2d 340

217 Wis.2d 180

STATE of Wisconsin, Plaintiff-Respondent, v. Clarence GIVENS, Defendant-Appellant. ^d No. 97-1248-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 8, 1998.

Opinion Released Feb. 25, 1998.

Opinion Filed Feb. 25, 1998.

[217 Wis.2d 185] On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert N. Meyeroff of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Gregory M. Posner-Weber, Assistant Attorney General.

Before SNYDER, P.J., and NETTESHEIM and ANDERSON, JJ.

ANDERSON, Judge.

Clarence Givens appeals from a judgment of conviction for one count of party to the crime of delivery of cocaine, as a repeater, in violation of §§ 161.41(1)(cm)1 and 161.48, STATS., 1993-94, and three counts of delivery of heroin, as a repeater, in violation of §§ 161.41(1)(d)1 and 161.48, 1993-94 and an order denying his motion for a reduction of his prison sentence. On appeal, Givens argues that the State's use of an informant as a witness constitutes outrageous conduct and violates his due process rights; that a mistrial should have been granted when a State's witness testified that drugs were found in Givens' apartment because the reports were not supplied to the defense prior to the testimony; that a new trial should have been ordered when improper other acts evidence was deemed admissible; that there was insufficient evidence to support his conviction for one of the delivery counts; and that the trial court's failure to reduce Givens' sentence constitutes a misuse of discretion.

We conclude that because the government itself was unaware of and not enmeshed in the informant's continued use of drugs, the State's use of the informant does not constitute outrageous conduct. We further conclude that the trial court did not misuse its discretion when it denied Givens' request for a mistrial, that Givens waived the issue he now raises as to the other acts evidence, and that there was sufficient evidence to support the conviction for party to the crime of delivery of cocaine. Lastly, we conclude that the trial court did not misuse its discretion when it sentenced Givens to 110 years in prison. We affirm the judgment and the order.

BACKGROUND

On May 3, 1996, Givens was charged with one count of delivery of cocaine and three counts of delivery of heroin. The charges stemmed from four controlled drug buys which were arranged by the Wisconsin Division of Narcotics Enforcement (DNE) with an informant, Karen Franklin, between April 4 and April 29, 1996. ¹ Givens pleaded not guilty and the matter was eventually tried to a jury.

At trial, Franklin testified to the four drug buys she made from Givens. Franklin explained that she was a heroin addict for about twenty years but is currently clean, and that she has known Givens for approximately twenty-five years and in that time she has purchased heroin from him. Franklin admitted that she used heroin during the time she was working undercover for the government in violation of their agreement. However, Franklin also stated that she never informed the agents that she was using heroin. In fact, Agent Gary Smith testified that he routinely asked her if she was using heroin and she answered no.

Both DNE agents who worked with Franklin also testified. Agent Gilbert Magolan, who was Franklin's control officer, testified to the controlled drug buys in which Franklin participated. Magolan also executed a search warrant on May 1, 1996, at which time Givens, who was present in the apartment, was arrested and substances suspected to be cocaine and heroin and other evidence of narcotics were confiscated. The substances were field tested by Magolan; they tested positive for cocaine and heroin.

The jury found Givens guilty, as a repeat offender, on all four counts. On September 27, 1996, Givens was sentenced to the maximum on each count totaling 110 years in prison and judgment was entered accordingly. Givens filed a postconviction motion seeking a reduction of his sentence from 110 years to a sentence of 55 years (as recommended by the assistant district attorney) or some other lesser term. The trial court by an order dated April 5, 1997, denied Givens' motion. Givens appeals both the judgment of conviction and the order denying postconviction relief. Additional facts will be included within the body of the decision as necessary.

DISCUSSION

Use of Informant

Givens first argues that the State's use of Franklin, a DNE informant, as a witness constitutes outrageous conduct and violated his due process rights. The State counters that Givens waived any right to raise the defense of outrageous governmental conduct on appeal because he failed to raise this defense in the trial court.

Even though Givens concedes he did not raise the issue, the waiver rule is not absolute. It is a rule of judicial administration and does not deprive this court of the power to address the waived issue, see Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980), especially where there are no factual issues which require resolution, see State v. Skamfer, 176 Wis.2d 304, 311, 500 N.W.2d 369, 372 (Ct.App.1993). Because the State does not controvert the fact that Franklin blatantly violated her agreement with the government or the fact that once the government became aware of her conduct at the preliminary hearing it continued to use her at the trial, we will discuss the issue on the merits. " 'Whether the government has stepped beyond permissible constitutional bounds in attempting to enforce the law is a legal question, not a factual one,' " which we review de novo. United States v. Davis, 15 F.3d 1393, 1415 (7th Cir.1994) (quoted source omitted).

The concept of outrageous governmental conduct originates from the Due Process Clause of the Fifth Amendment. See State v. Hyndman, 170 Wis.2d 198, 208, 488 N.W.2d 111, 115 (Ct.App.1992). The defense of outrageous governmental conduct requires an assertion by the defendant that the State violated a specific constitutional right and that the government's conduct is so enmeshed in a criminal activity that prosecution of the defendant would be repugnant to the American criminal justice system. See State v. Gibas, 184 Wis.2d 355, 360, 516 N.W.2d 785, 786-87 (Ct.App.1994).

Givens posits that "the conduct of the government in using [Franklin's] testimony after she admitted using government money to buy heroin and using heroin while she was allegedly making buys from [Givens] [all] in violation of her agreement with the government not to use heroin violates fundamental fairness and shocks the concept of justice." Although Wisconsin courts have not addressed this issue, federal courts have. ² In United States v. Simpson, 813 F.2d 1462, 1470 (9th Cir.1987), the court stated:

We find no authority supporting the defendant's claim that the continued use of an informant known to be committing unrelated crimes without the government's urging or approval raises due process concerns. This court has held that "[g]overnment agents may approach people already engaged in or contemplating criminal activity" to employ them as informants. Thus the mere fact that [the informant] continued to use heroin and engage in prostitution during the investigation of [the defendant] did not oblige the FBI to stop using her as an informant. Indeed, government agents can go so far as to direct an informant to participate in the very criminal enterprise that is under investigation. [Quoted source omitted; citation omitted.]

Similarly, in this case the government was not enmeshed in or aware of Franklin's heroin use. Prior to working with the government, Franklin was acquainted with Givens through her previous purchases of heroin and crack cocaine from him. At trial, Franklin admitted that she was using heroin and crack cocaine while working with the government in violation of their agreement. However, she also testified that she never informed the agents that she was using heroin nor did she ask them for money to buy controlled substances. We conclude that the government's use of Franklin as a witness against Givens, even though she used heroin in violation of her agreement with the government while making purchases, does not alone amount to a violation of fundamental fairness that shocks the universal sense of justice.

Further, in order for a defendant to successfully assert a claim of outrageous governmental conduct, he or she must assert that a specific constitutional right has been violated. See Hyndman, 170 Wis.2d at 208, 488 N.W.2d at 115. However, Givens does not identify a specific constitutional right violated by the State's allegedly outrageous conduct, such as a Fifth Amendment right against self-incrimination or a Sixth Amendment right to counsel. See id. at 209, 488 N.W.2d at 116. We conclude that there is no arguable merit to a claim that Givens' due process rights were violated by outrageous government conduct.

Lab Reports

Givens next argues that a mistrial should have been granted when a government agent testified that suspected contraband found at the scene of his arrest had tested positive for drugs. Givens complains that this information was not provided to him prior to trial, the information corroborated Franklin's testimony and it was devastating to the defense. He insists that a new trial was necessary to allow him "time to analyze the lab reports and test the substances described in those lab reports."

Whether to grant a motion for a mistrial is within the trial court's discretion. See State v. Bunch, 191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct.App.1995). The trial court must determine, in light of the entire proceeding, whether the basis for the mistrial motion is sufficiently prejudicial to warrant a new trial. See id. However, not all errors warrant a mistrial and "the law prefers less drastic alternatives, if...