Montez v. State, 4339
| Decision Date | 12 November 1974 |
| Docket Number | No. 4339,4339 |
| Citation | 527 P.2d 1330 |
| Parties | Steve MONTEZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Frederick G. Loomis, of Loomis, Lazear, Wilson & Pickett, Cheyenne, for appellant.
David B. Kennedy, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, Stuart S. Healy, Legal Intern for Attorney General's Office, and Law Student, University of Wyoming, for appellee.
Before Parker, C. J., and McEWAN and McCLINTOCK, JJ.
Defendant, Steve Montez, was indicted for five violations of unlawfully delivering a controlled substance, one for marijuana, December 6, 1972; another for heroin on the same day; one for marijuana on December 12; another for heroin the same date; and still another for cocaine on December 13. These indictments were consolidated for trial and defendant was found guilty by a jury in each instance and sentenced to a term of one and a half to two years in the penitentiary. Defendant had moved for judgment of acquittal at the conclusion of the State's case and again after the conclusion of his case. Subsequent to the verdict, defendant filed timely motions for an arrested judgment, acquittal, and new trial. All of these were denied. On appeal, defendant urges a lack of substantial evidence to support the guilty verdicts.
The gist of the State's case was that Deloyd Quarberg, an agent for the attorney general's office, made the purchases from defendant, being introduced to him by one Willodean Cullen, who was on probation and said she wanted to know what she could do to help so she did not go to prison because of another possible charge against her. According to Quarberg, Cullen was with him at the time of each of the alleged deliveries. His testimony was definite and unequivocal that:
1. On December 6, 1972, he purchased a 'lid of marijuana and a dime size packet of heroin,' paying twenty dollars, defendant laying the controlled substances on the coffee table, from which Quarberg picked them up.
2. On the afternoon of December 12 he purchased a lid of marijuana from defendant for twelve dollars. Later that evening he received four 'dimes' of heroin from defendant at ten dollars a dime, giving him forty dollars and defendant handing him the four packets.
3. On December 13 he purchased a gram of cocaine from defendant, giving him forty-five dollars for it, defendant handing the cocaine to him. 1
Defendant took the stand and gave his version of the occurrences on the three mentioned dates, admitting being present each time but insisting that Cullen had introduced and recommended Quarberg to him and that controlled substances were furnished to him by Cullen who asked him to profess ownership because she owed Quarberg money, which would otherwise be deducted from the sale. His exact words regarding the December 6 transaction were illustrative:
* * *'
He denied actually giving Quarberg the substances but conceded in some instances that he had put them on the table and that Quarberg had picked them up, Cullen receiving the money.
On rebuttal Quarberg testified that on December 6 defendant had said he was facing a charge in Mexico where he had been picked up with $9,000 worth of dope and told of other involvement and drug activities in various states. However, defendant denied that he had ever had such conversation with Quarberg.
It is correctly argued in the appeal that under Rule 30, W.R.Cr.P., defendant's motion for an acquittal as well as his motions for new trial raised the question of sufficiency of the evidence, which matter should have been determined within the sound discretion of the trial court. Opie v. State, Wyo., 422 P.2d 84, 85. However, it is contended that the overruling of the motions was error in that the court abused its discretion since the guilty verdicts were against the weight of the evidence either because he did not commit the offense or was entrapped into committing it. He discusses entrapment at some length, quoting Sherman v. United States, 356 U.S. 369, 372-373, 78 S.Ct. 819, 2 L.Ed.2d 848, 851, which in part states:
'* * * Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' 287 U.S. (435) at page 442 (53 S.Ct. 210, at page 212, 77 L.Ed....
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