Janski v. State

• Citation: 538 P.2d 271
• Decision Date: 23 July 1975
• Docket Number: No. 4348,4348
• Parties: Gary JANSKI, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 271

538 P.2d 271

Gary JANSKI, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4348.

Supreme Court of Wyoming.

July 23, 1975.

John E. Ackerman, Ronald L. Brown and Peter J. Feeney, Casper, for appellant.

David B. Kennedy, Atty. Gen., ^* and David A. Kern, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Following reversal of the trial court (529 P.2d 201), upon application of the State, a rehearing was granted in this case. It was thereafter argued anew and taken under advisement by the full court. We now set aside the original opinion as improvident and affirm. It is considered advisable to make a complete restatement of the facts in the case to cover the several points raised by the appellant.

The defendant-appellant was charged with delivering a controlled substance in violation of § 35-347.14(d)(10) and § 35-347.31(a)(ii), W.S.1957, as amended. The drug involved was hashish. During the State's case in chief, a Robert Laabs, with the nickname Haystack, undercover narcotics agent for the Casper police department, testified that after knowing the defendant for about a week, he went to his residence where defendant answered the door, let him in and together they went to the basement of the house, where Laabs asked him if he could buy some hash. Laabs testified that defendant told him he would have to go out to a golf course and get it from a friend of his. There were some teenagers present in the house at the time. After the defendant had been gone approximately 25 to 30 minutes, he returned with two tinfoil-wrapped packages, saying that they were quarter ounces. Laabs bought two of them at $40 each, for a total of $80. After remaining for another 15 or 20 minutes, talking to Janski and the other people in the house, he left and went to his police supervisor's residence where he delivered his purchase, as evidence.

On direct examination by the State prosecutor, Laabs admitted that several years previously he had been convicted of armed robberies when he was 17 and 18 years of age, been confined in a reformatory and had spent five years in a penitentiary. Following his release, he had gone into a business, found his way into the position of narcotics agent and had worked at that occupation in several different states. Previous to the trial, on a motion in limine by the State, defendant offered to show that the State's witness Laabs had been arrested for burglary and other offenses, too, but the court ruled that a witness may not, on cross-examination, be asked whether he had been accused of, arrested, indicted or tried for a crime of which he had not been convicted. At the same time, the trial judge also prohibited use of a Denver Post news article in cross-examination of Laabs.

During the course of his testimony, it developed that on occasions the witness Laabs, while acting as an undercover agent, would disguise himself with a Mohican haircut and he said, '(T)he weirder, more I look crazy looking, the more dope I usually buy.' While working for the police department, the witness had bought a couple thousand dollars worth of drugs in this role.

The following exchange took place on cross-examination:

'Q. Do you know whether he (defendant) made any profit on the sale or not?

'A. I believe he did.

'Q. You don't know though, do you, you don't know how much he paid.

'A. Well, there were other boys there buying it also.'

The drug was properly linked into a full chain of evidence and the State chemist identified it to be a controlled substance, a derivative of marijuana. The State thereupon rested.

There was an additional charge of the same sort pending against the defendant. It was scheduled to be tried immediately following this one. Since they involved many similarities, one witness mistakenly testified the transaction took place on January 7 when, in fact, it took place on January 6. Defendant at close of State's case in chief asked for a mistrial, which the trial court denied, and the State was permitted to reopen to straighten out the dates and the defendant was offered an opportunity by the State for a continuance if defendant was unprepared to meet the State's evidence, which he did not take nor request but proceeded into his defense to the evidence presented.

The defendant established through a city official that the witness Laabs had been employed as an emergency employee and at the time of his employment, it was known that he had a felony record. At every chance, it might be said, defendant played Laabs' felony convictions to the limit for the benefit of the jury. On direct examination, witness Laabs was called by the defendant and asked whether he carried a gun with him during the time that he was an undercover agent. The witness answered that he carried a .22 derringer, black with a pearl handle. He was asked whether or not he stuck the gun into defendant's stomach. Laabs denied that he did so.

A witness, Kevin Doing, age 17, was called by the defendant. He testified that Haystack Laabs was discussing drugs in Janski's basement 'and he stood up and gave Gary some money and told him to go get the hash and bring it right back here, he said, don't mess around with Haystack. He had a gun and pushed it into Gary's stomach.' Doing described the gun as a 'gray Derringer type pistol, .22, with a white handle.' On cross-examination, Doing said that the gun used had a cylinder and he could see the bullets showing out of the front. On further cross-examination, the prosecutor showed the witness a derringer, regularly marked as an exhibit, and he replied, '(T)his isn't the gun I saw, the gun had a cylinder right here (indicating), it had a shorter barrel, the cylinder right here, light gray handle.' He was definite that the weapon used by Laabs had a cylinder. The hand gun displayed to the witness had no cylinder.

Laabs was recalled on State's rebuttal, handed the same derrigner as the one shown to Doing. He identified it as the weapon carried while he was on duty. He also testified that on a day about a week later, he did carry a .38 revolver. Laabs' supervisor was then called and he testified that on only one occasion had Laabs had possession of a police .38 revolver and it was at a time a week later than the date of the offense being tried. The State had neglected to offer the derringer as an exhibit and upon all the evidence being closed, reopened momentarily, with permission of the court, to do so. It had been marked and shown to both Doing and Laabs, so was no more than a technical correction.

At the close of the State's rebuttal, the defendant requested an opportunity for surrebuttal and offered to prove by employees of a Casper Mini-Mart that Laabs had threatened one of them with a revolver. The offer was denied. Later in the opinion, these proceedings will be explained in greater detail.

Following instructions and argument, the jury retired and returned a verdict of guilty. The defendant was sentenced to the Wyoming state penitentiary for a term and fined $500.00.

The defendant assigns as error the following:

1. Fefusal of the court to permit the defendant an opportunity to inquire of the State's undercover narcotics agent as to his previous criminal activity, not resulting in convictions, in the light of the witness' rather extensive record of felony convictions.

2. The evidence adduced at trial was insufficient to overcome the defense of entrapment, thereby rendering the verdict contrary to the evidence.

3. The court's submittal of the issue of emtrapment to the jury.

4. The court's allowing the trial to proceed after the court discovered that evidence had been received concerning the crime for which the defendant had not been convicted and was not then being tried.

5. The court's denial of surrebuttal by defendant.

The trial court was correct in limiting the cross-examination with respect to any past offenses of Laabs to felonies of which he had been convicted, for purposes of impeachment. The rule, under the facts of this case, is that only evidence of a prior conviction for a felony is admissible to impeach a witness. Gabrielson v. State, Wyo.1973, 510 P.2d 534, 536; Wright v. State, Wyo.1970, 466 P.2d 1014, 1016; Rosencrance v. State, 1925, 33 Syo. 360, 373, 239 P. 952, 956; Eads v. State, 1909, 17 Wyo. 490, 503, 101 P. 946, 950. ¹

The court instructed the jury that when the defense of entrapment is claimed, it is necessary that the State show a predisposition by the defendant to commit the crime. ² The defendant argues that there was no evidence of predisposition.

Without getting into the details of the trilogy ³ of cases of the Supreme Court of the United States on entrapment, we find a good synopsis of the rules to be gleaned therefrom in Anno., Entrapment-Narcotics Offense, 33 A.L.R.2d 886, § 3:

'The cases within the scope of the annotation support the conclusion that the defense of entrapment cannot be successfully interposed by one accused of a narcotics offense if he was already engaged in an existing course of similar crimes, ⁴ or if he had already formed a design to commit the crime with which he was charged, or similar crimes, as where he offered to make a sale prior to any solicitation, or was willing to do so, as shown by ready complaisance, or if the criminal design originated in the mind of the defendant, and the government, having through its agents reasonable cause to believe that the defendant was violating the narcotics laws, merely afforded opportunities or facilities for the commission of the offense, as by the employment of informers or decoys, the use of decoy letters, or other stratagems. * * *' (Emphasis and footnote supplied.)

It will be observed that there are various alternative ways of establishing predisposition and may be shown by a fashioning of circumstances preceding the sale in which the defendant committed the...