Rivera v. State

Decision Date07 January 1993
Docket NumberNo. 91-223,91-223
Citation846 P.2d 1
PartiesCalik RIVERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court
Dissenting Opinion of Justice Urbigkit

Jan. 25, 1993.

Gerald M. Gallivan, Director (argued), Defender Aid Program, and Donald L. Fuller, Student Director, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Senior Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen. (argued), for appellee.

Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. Ret. *

CARDINE, Justice.

Calik Rivera appeals his conviction for possession of a controlled substance with intent to deliver, in violation of W.S. 35-7-1031(a)(ii) (1988). Most of his challenges center on the propriety of the reverse sting operation which led to his conviction. He also challenges the transactional immunity given to a witness who testified against him. Finding no error in the issues he presents, we affirm.

Appellant states the issues as follows:

I. Whether the trial court erred in instructing the jury on the entrapment issue based upon the assumption that Wyoming had adopted the subjective theory as the sole rationale for the entrapment defense?

II. Whether the trial court erred in denying defendant's motions to dismiss on the grounds of the objective theory or due process where the evidence of the prosecution demonstrated the police creation of crime, an overzealousness in developing cases, and the disregard of state statutes and regulations?

III. Whether the conviction of the appellant must be reversed because it was obtained by the police violating applicable statutes and regulations forbidding the importation and transfer of contraband except in the course of the investigation of ongoing crime?

IV. Whether testimony produced pursuant to a grant of transactional immunity in disregard of applicable statutes was critical to the prosecution's case and its wrongful admission requires reversal?

The State adds one issue for our consideration:

Whether appellant has standing to challenge the grant of immunity to Frank Compton?

Appellant was apprehended as part of an undercover "reverse sting" operation in which Jackson, Wyoming police officers sold marijuana to persons they had targeted as drug dealers. To conduct the operation, the officers obtained about 100 pounds of marijuana from the Colorado Springs, Colorado police department. They placed the marijuana in a motel room at the 49'er Motel in Jackson and set up a video camera and a hard wire microphone for surveillance in an adjoining room.

To lure suspects into the motel room to make purchases, the police employed an informant named Frank Compton. Compton, a drug addict, had been arrested after attempting to unlawfully obtain cough syrup with codeine at two drug stores in Jackson. After his arrest, Compton agreed to help ferret out drug traffic in Jackson in exchange for having the charges against him dropped. As part of his duties for the police, Compton was to introduce suspected dealers to undercover officers.

Acting under police supervision, Compton introduced undercover officer John Bowers to appellant at appellant's residence. Appellant agreed to meet Officer Bowers and Frank Compton at the 49'er Motel to transact a drug deal. At the motel, Bowers, posing as a drug dealer, offered three pounds of marijuana to appellant for $800.00 a pound. This was $400.00 per pound less than the going rate. Appellant had only $1,350.00, so Bowers agreed to "front" him another $1,150.00 worth of marijuana, for a total of three pounds. 1 The two men exchanged the money and marijuana, and appellant left the motel room. Appellant was apprehended shortly thereafter with the marijuana.

Failure to Instruct on Objective Theory of Entrapment

In his first issue, appellant argues that the trial court committed reversible error when it failed to instruct the jury on an objective, as well as subjective, theory of entrapment. He assigns as error the omission of the following requested statement from the jury instruction on entrapment:

[E]ntrapment occurs only when the criminal conduct was the product of the creative activity of the law enforcement officials. It does not arise if one is ready to commit the offense given but the opportunity.

The subjective theory of entrapment focuses on a particular defendant's intent or predisposition to commit the crime charged, while the objective theory focuses on the effect of the State's tactics on the hypothetical "reasonable law-abiding citizen." See LaFleur v. State, 533 P.2d 309, 314 (Wyo.1975); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 (1932) (subjective theory); United States v. Russell, 411 U.S. 423, 439, 93 S.Ct. 1637, 1646, 36 L.Ed.2d 366 (1973) (objective approach advocated by Stewart, J., dissenting). See also Laura Gardner Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory from Sorrells to Matthews, 32 Ariz.L.Rev. 605, 607 (1990).

The language appellant requested can be found in our entrapment cases. See e.g., Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986). However, it is not "objective theory" language, as appellant claims. Although the first of the two statements appellant requested mentions the "creative activity of law enforcement officials," it does not adopt the objective theory. Even in subjective theory, there is a threshold question whether the police merely offered the defendant an opportunity to commit the crime or whether they somehow induced the defendant to act illegally. Once it has been determined that inducement is involved, the defendant's predisposition comes into question. This first sentence merely restates the threshold question of the subjective inquiry. Its origin is Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), a case which took the subjective view of entrapment. See Dycus v. State, 529 P.2d 979, 981 (Wyo.1974).

The second sentence which appellant requested actually concerns predisposition, and so it is difficult to understand how it could support the objective theory. In fact both sentences are standard, subjective entrapment language. Even had they been included, they would not have presented the objective theory of entrapment to the jury. In any case, appellant was not entitled to present that theory, because we do not recognize the objective theory of entrapment in Wyoming. 2

A review of our past cases on this subject shows that Wyoming follows the subjective approach to entrapment. See Noetzelmann, 721 P.2d at 581; Wright v. State, 670 P.2d 1090, 1102 (Wyo.1983) (Rose, J., dissenting), reh'g denied, cert. granted, opinion modified and remanded, 707 P.2d 153 (Wyo.1985); Janski v. State, 538 P.2d 271, 274-76 (Wyo.1975); Dycus, 529 P.2d at 980-81; Montez v. State, 527 P.2d 1330, 1331-32 (Wyo.1974); Jackson v. State, 522 P.2d 1286, 1288-89 (Wyo.1974); Higby v. State, 485 P.2d 380, 384 (Wyo.1971). See also W. Michael Kleppinger, Note, Criminal Procedure--The Entrapment Defense--The Determination of Predisposition. Janski v. State, 538 P.2d 271 (Wyo.1975), XI Land and Water L.Rev. 265, 270 (1976). But see LaFleur, 533 P.2d at 314 (taking no position on the subjective/objective issue).

As a part of his argument, appellant urges us to either abandon the subjective theory or supplement it with the objective. We note that the subjective theory has been adopted by the majority of the states. Kleppinger, supra, at 270. That fact alone, of course, is no reason to retain it, and certainly does not argue against supplementing it with the objective standard. However, there are other, more practical reasons for remaining with the subjective test. This court, in the absence of constitutional violations, should not attempt to exercise a "chancellor's foot" veto over law enforcement practices. See Russell, 411 U.S. at 435, 93 S.Ct. at 1644. Presently existing entrapment law serves the purpose of ensuring that a defendant is not punished who, but for government encouragement, would not have committed an offense. The subjective test is an adequate vehicle to achieve that end.

We have reviewed the instruction the trial court did give, and while it did not use the language found in our cases, it did present an acceptable version of the subjective entrapment defense. The requested language would not have added anything to the instruction the court gave; it would merely have been cumulative. Therefore, it was properly rejected. See Prime v. State, 767 P.2d 149, 154 (Wyo.1989).

Since this case was argued, we have recognized a defense of "outrageous government conduct." See Mondello v. State, 843 P.2d 1152 (Wyo.1992). Although it bears some similarity to the objective theory of entrapment, this defense should not be confused with either of the traditional approaches to the entrapment defense. It examines neither the defendant's predisposition to commit the crime nor the likely effect of police conduct on a hypothetical reasonable man. Instead, the defense focuses purely upon the conduct of the police. The outrageous government conduct defense is available only in circumstances where the police conduct is "violat[ive of] that 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment [to the United States Constitution]." Mondello, at 1158, quoting United States v. Russell, 411 U.S. at 432, 93 S.Ct. at 1643.

A jury instruction on this theory would not have been appropriate, because whether the government's conduct was outrageous is a question the trial court must decide. It is "the court's" conscience which is "shocked." The trial court considered, and rejected, a due process defense in this case. Whether it did so properly is the subject of appellant's next issue.

Outrageous Government Conduct

As mentioned above, this court recognized a defense of ...

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