LaFleur v. State
| Decision Date | 01 April 1975 |
| Docket Number | No. 4378,4378 |
| Citation | 533 P.2d 309 |
| Parties | Richard S. LaFLEUR, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Phil N. Nash, John E. Ackerman and Ronald L. Brown, Casper, for appellant.
David B. Kennedy, Atty. Gen., and Timothy J. Judson, Asst. Atty. Gen., Cheyenne, for appellee.
Before McCLINTOCK, RAPER and THOMAS, JJ.
Richard LaFleur 1 appeals his conviction and sentence by the District Court of Natrona County, Wyoming on the charge of breaking and entering with intent to steal. He was apprehended early in the morning hours of Tuesday, December 19, 1972, inside the Westridge drugstore at Casper, while in the act of removing from a shelf a bottle of liquid later identified as Robitussin cough syrup. Entry to the building had been effected after one Steven Raleigh had smashed the glass in a rear door. After waiting some five minutes to see if the crash had been observed by anyone defendant proceeded into the building. Unfortunately for him the Casper police had been alerted to the possible burglary of the store by one Robert Laabs, 2 described as an undercover narcotics agent employed by the Casper police force, and two police officers were in the building at the time of the break-in. Raleigh did not enter the building and quickly departed the area when other police converged on the building. He was found and arrested in the close vicinity of the drugstore, and LaFleur, Raleigh, and one Willie Mapp, 3 an alleged principal in the burglary, were tried together before a jury. Defendant was found guilty and sentenced to from 10 to 14 years in the Wyoming state penitentiary.
On this appeal defendant contends that his defense of entrapment was established as a matter of law and a verdict of acquittal should have been directed. He also asserts error of the trial court in instructions given and refused, and in permitting a State witness to testify to certain facts upon rebuttal instead of as part of the State's case in chief.
Shortly prior to the burglary defendant, his wife, and Raleigh, without apparent purpose and with little or no funds, had been engaged in a rambling trip that took them from Texas to California to Washington and into Wyoming. North of Casper the car broke down and the three hitched a ride into Casper where the Salvation Army obtained lodging for them at a local hotel and also furnished them with some meals. 4
While staying at this hotel and on Thursday, December 14, 1972 they met Robert Laabs who had that morning been sworn in in his capacity as undercover narcotics agent. Either at Laabs' suggestion or that of the defendant, but almost entirely at the expense of the former, these four people, plus a female companion of Laabs, and Willie Mapp, the third defendant in the burglary trial, on December 15 moved into a trailer which had been rented by Laabs in a northside trailer park in Casper. The record reflects that during the few days of this joint occupancy Laabs' guests paid nothing on the rent and little if anything for food which was for the most part furnished by Laabs. He also furnished liquor, wine and beer, which was freely imbibed while the burglary was under consideration and immediately prior to the break-in. 5 No arrangements for reimbursement of Laabs for his expenditure for rental, food, and liquor seem to have been made or requested by Laabs.
It is not clear who first suggested committing a burglary, but there is no evidence at all that it was this defendant. Laabs testified that the first conversation concerning a burglary occurred on Friday evening in the kitchen of the trailer, not long after they had moved in. The idea was brought up by Raleigh who stated that he would like to pull a job of some kind because he needed money. He said that he and defendant were on the run and wanted money to get out of Casper. Raleigh thought it a good idea to hit a gas station of some kind and defendant started into the conversation with "If you're going to do anything we might as well do a drugstore," his stated reason therefor being that he wanted hard drugs. Mapp was said to have stated that he knew where there were a bunch of drugstores and that he would show them.
When asked who had first brought up the possibility of entering the Westridge drugstore Raleigh testified he could not remember, but that it was not his idea; 'I presume it was Haystack's (Laabs'), because he was the one that was always saying when are we going to do it.' He also testified that there was a good deal of drinking going on, mostly of wine. Mapp testified that Laabs was the one who asked him about the location of a drugstore and that he (Mapp) told him about Westridge. Defendant first testified that there was a conversation on Friday night about the possibility of committing a burglary, then corrected himself to say that there was no talk on Friday about breaking into a place and that conversations concerning burglary were on the next day, Saturday.
There is no dispute that on Friday evening Laabs, Raleigh, and Mapp drove out to the Westridge drugstore, with Mapp as guide, and looked it over from the outside. The next morning, according to defendant, Laabs said to him, 'I found a drugstore that's not bugged.' Raleigh confirmed that they had been to a couple of drugstores. Laabs then requested defendant to go look at it and he said, 'O.K.' However, Laabs testified that it was Raleigh who had first told defendant that they had found a drugstore which was not bugged and asked defendant to look at it and he agreed. Defendant further testified that he had gone into the drugstore alone, walked to the drug counter in the back where prescriptions were filled, and then walked out. In reply to Laabs' question as to how it looked, he had said, 'O.K.' and that 'we can look at it at night and see.'
During this period of time Laabs was in continuing contact with the police department, and on both Saturday and Sunday nights the police had active stakeouts near the drugstore and observed the defendant as with Laabs he inspected the outside of the store. The owner of the store had been informed of the possible burglary, and with a key furnished by him two regular police officers entered the building on Monday evening, and were waiting when the glass door was smashed and defendant entered the building.
All witnesses, including the police officers observing the activities of defendant and his associates in the vicinity of the drugstore, were in agreement that there were a number of inspections of the premises. Defendant admitted examining the windows of the drugstore, 'supposedly looking for a way in' but for the purpose of talking with Raleigh about 'how we could keep from getting put out in the cold weather and still keep Haystack happy.' 6 He further testified that this was part of a 'game to me and Steve Raleigh, because each time that we would go and see about the drugstore, or case it or something, Mr. Laabs would buy a couple of bottles of wine on the way back.' When on Saturday night Laabs said they should do the job that night, he replied, 'We have to look at it some more.' His explanation of this was 'because I didn't want to go in the first place.' On Sunday night, the night of another inspection, Laabs got
'real mad. 'If you don't do it tonight I'm going.' And we said 'O.K.'
At some point in the conversations defendant had told Laabs that they would need a screwdriver, hammer, flashlight, and some gloves. Laabs said he could not buy them all, and defendant admitted stealing a screwdriver from one of the local stores. Laabs in the presence of defendant purchased a flashlight and on Monday rented a hammer and chisel from a local service station at a charge of $5.00. Shortly before midnight on Monday the four drove Laabs' car to the drugstore area and according to defendant the following took place:
'* * * Well, it was behind Westridge. He said,
'Q 'Get out' of where? A Of the trailer. He had said it more than once. And so Steve said, 'I'm not going in the place.' And I said, 'Well, I'm going to break the window.' We didn't have a plan. We didn't have anything. Because we never intended to go. We never discussed who was going to get what because we never intended to do it. 7
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Defendant contends that the evidence clearly establishes that the offense for which he was convicted was the product of the creative enterprise of the undercover agent, and relying principally upon statements from concurring or dissenting opinions in three decisions of the United States Supreme Court 8 and one decision of the Supreme Court of Michigan 9 argues that this creative activity was sufficient to establish entrapment as a matter of law so that verdict of acquittal should have been directed.
Condemnation of prosecution of crimes which have been arranged by law enforcement officers is of long standing. Thus, in Saunders v. People, 38 Mich. 218, 222 (1878) Mr. Justice Marston said in his concurring opinion that courts
'* * * have not yet gone so far, and I trust never will, as to...
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