Fletcher v. State

• Decision Date: 06 May 1975
• Docket Number: No. S,S
• Citation: 228 N.W.2d 708,68 Wis.2d 381
• Parties: Billy Joe FLETCHER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 10.
• Court: Wisconsin Supreme Court

Page 708

228 N.W.2d 708

68 Wis.2d 381

Billy Joe FLETCHER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 10.

Supreme Court of Wisconsin.

May 6, 1975.

On February 7, 1973, defendant was indicted on three counts of selling heroin in violation of secs. 161.02(1) and 161.28(1), Stats.1969, and sec. 161.41(1) (a), Stats.1971. On September 13, 1373, trial commenced before a jury. The jury returned verdicts of guilty as to all three counts. On October 8, 1973, a judgment of conviction was entered and the defendant was sentenced to three concurrent five-year prison terms. On February 18, 1974, an order was entered denying defendant's postconviction motions. Defendant challenges the judgment of conviction and order by writs of error.

Howard B. Eisenberg, State Public Defender and Alvin E. Whitaker, Asst. State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., and David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

The defendant was found guilty of three counts of illegally selling heroin, with the evidence in support of the jury verdict ¹ establishing three separate sales of heroin by the defendant to an undercover agent of the state department of justice.

As to the first sale of heroin by the defendant, the purchaser testified that he and an informant went to the residence of the defendant and that:

'We were admitted to 359 Highland by Mr. Fletcher and we went upstairs. It's an upstairs apartment, and when we got up there, the confidential informant asked Mr. Fletcher if he had any stuff and Mr. Fletcher said, 'A little,' and then he asked me how much I wanted and I said, 'Three-quarters,' meaning three quarter bags of heroim. He got up--we were in the living room--he got up and walked into a room to the right as you come up the stairs and got three tin foil packets out of a refrigerator and turned and handed them to me and I in turn handed him $75--three 20's, one 10 and one 5--and then we departed.'

As to the second sale of heroin, eleven days later, the purchaser testified that he returned to the same address, this time alone, and was again admitted by the defendant. The purchaser testified that he was asked what he wanted and that he replied, 'Two quarters of jive,' that the defendant then left the room and the following then transpired:

'I believe the unidentified Negro male said, 'Billy wants you' or something to that effect. I walked into the bedroom. Mr. Fletcher was sitting at a table in a corner and he had a small pile of white powder in front of him, and he was using a small spoon to put a quantity of this white powder in tin foil packets; and then Mr. Fletcher asked me what was the last thing I had bought from him, and at this time I said, 'The brown junk,' and he agreed and then finished spooning out two quarter bags and then handed it to me and I handed him $50, which was in two 20's and one 10.'

As to the third sale of heroin, one month later, the purchaser testified that he and the informant returned to the same address and the following events took place:

'Mrs. Caroline Fletcher answered the door and admitted us and we went upstairs to the upstairs apartment, and Mr. Fletcher asked what we wanted and the confidential informant said, 'A quarter,' and then Mr. Fletcher asked the confidential informant a few questions, personal questions concerning him, and then Mr. Fletcher went into the room to the right and returned with a tin foil packet; and I handed Mr. Fletcher a $20 bill and a $5 bill, and Mr. Fletcher handed the packet to the confidential informant and he placed it in his right jacket pocket and then we exited the apartment. And, when we returned to my car, the confidential informant handed me the tin packet, tin foil packet and I placed it in my left shirt pocket.'

As to sufficiency of the evidence to sustain conviction, we hold that the evidence supporting the verdict, believed and rationally considered by the jury, was amply sufficient to sustain the guilty verdict as to each of the three counts. The issue raised by the defendant as to the testimony of backup agents who observed the purchaser approach the house of the defendant, goes to the credibility of such witnesses and the weight to be given their testimony--both of which are matters for a jury to determine. ²

As to the quantities of heroin being sufficient to sustain conviction, we hold, as a matter of law, that they were. The chemist who analyzed the contents of the several tinfoil packets testified that the total weight of the matter contained in one packet was two-tenths of a gram, five percent of which was heroin, ninety-five percent of which was diluting material. Thus each packet contained ten milligrams or so of heroin, which defendant contends is too minute to have commercial value or constitute a usable quantity of the drug. Our court follows the majority rule, in sale or possession cases, that '. . . possession of a modicum of an illegal drug is sufficient to bring the defendant within the purview of the statute. . . .' ³ The statutes here involved do not prescribe any minimum amount which must exist, ⁴ and such amount '. . . need not be a usable amount. . . .' ⁵ In fact, the quantity of the drug either possessed or sold, we have clearly held '. . . is not material. . . .' ⁶

As to jury instructions on entrapment being here required, we hold that such instructions would in this case have been entirely inappropriate. A trial court is not required to give a requested instruction unless the evidence reasonbly requires it, ⁷ and here the evidence id not require it. The issue of entrapment does not arise under the circumstances of the three sales as testified to by the purchaser, such testimony, if believed by the jury, establishing that the defendant 'was predisposed to unlawfully sell a dangerous drug.' ⁸ Under the circumstances detailed, it is, in fact, 'impossible to find any basis upon which to base a claim of entrapment.' ⁹ The defendant disputed the fact of sale, not the circumstances surrounding the sales. As to the first two sales, defendant testified that he was in California on the date of the first sale, and in Madison on the date of the second. As to the third sale, the defendant testified that there was a return of drugs sold earlier that day to defendant by the informant, but no sale by defendant to either undercover agent or informant. With the fact of sale by the defendant denied as to the three occasions involved, the issue of defense of having been entrapped into making a sale does not here arise as to any of the three counts under either the 'predisposition' test, the test in this state, ¹⁰ or the 'governmental conduct' theory, ¹¹ up to now rejected by the United States Supreme Court. ¹² Where the testimony on behalf of

As to violation of an order segregating witnesses, we find that no such violation here occurred. On the first day of trial, defense counsel made a motion '. . . that the witnesses be segregated and those that aren't testifying be outside the presence of those that age.' The trial court granted such motion. During the opening statement of the prosecutor, defense counsel objected to the presence of witnesses in the courtroom, and they were escorted out. A motion for mistrial based on such claimed violation of the segregation order was denied by the trial court for the reason that '. . . (the prosecutor) had not proceeded far enough in his opening remarks to prejudice (the defendant) in any way. . . .' That appears to be the case, but it is also clear that the scope or limit of the defense motion to sequester extended only to the segregation of witnesses so that '. . . those that aren't testifying be outside the presence of those that are. . . .' Exclusion of all witnesses during the prosecutor's opening statement is not reached by such motion, so worded. A motion to sequester witnesses is not a matter of right, but is addressed to the sound discretion of the trial court. ¹³ This is an area in which '. . . the Supreme Court will not intrude in the absence of abuse of such discretion.' ¹⁴ We do not presume prejudice from a failure to sequester. ¹⁵ If the order sequestering witnesses had been overlooked or violated under the circumstances here present, we would not here find ground for reversal. ¹⁶ However, since the motion, as phrased, did not include exclusion of witnesses from the courtroom during the prosecutor's opening statement, we find no basis for claim of error.

Judgment and order affirmed.

1 This court has repeatedly held: ". . . In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. . . ." Ziegler v. State (1974), 65 Wis.2d 703, 706, 223 N.W.2d 442, 443, quoting Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725.

2 See: Blackwell v. State (1969), 42 Wis.2d 615, 627, 167 N.W.2d 587.

3 State v. Dodd (1965), 28 Wis.2d 643, 651, 137 N.W.2d 465, 469.

4 Secs. 161.02(1) and 161.28(1), Stats.1969, and sec. 161.41(1)(a), Stats.1971.

5 State v. Dodd, supra, footnote 3, at page 651, 137 N.W.2d at page 469.

6 Id. at page 651, 137 N.W.2d 465, at page 469, this court adding: '. . . A more liberal interpretation favorable to drug addicts and those illeally dealing in narcotics cannot reasonably be given. . . .'

10 Id. at page 448, 210 N.W.2d 730, at page 733, this court holding: "It is only when the government's deception actually implants the state as to...