State v. Agrabante

• Decision Date: 13 May 1992
• Docket Number: No. 15048,15048
• Citation: 830 P.2d 492,73 Haw. 179
• Parties: , 15 A.L.R.5th 974 STATE of Hawaii, Plaintiff-Appellee, v. Louis AGRABANTE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 492

830 P.2d 492

73 Haw. 179, 15 A.L.R.5th 974

STATE of Hawaii, Plaintiff-Appellee, v. Louis AGRABANTE, Defendant-Appellant.

No. 15048.

Supreme Court of Hawai'i.

May 13, 1992.

Syllabus by the Court

1. When the due process defense based on outrageous conduct of law enforcement officials is raised, the "objective test," which focuses solely on the government's conduct, is applicable.

2. Due process principles bar the government from invoking judicial process to obtain a conviction when conduct of law enforcement officials violates fundamental fairness or shocks the conscience.

3. Courts must look to the nature of the crime and the means available to law enforcement officials to combat it in deciding whether the conduct of law enforcement officials violates due process.

4. The fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat prosecution. Nor will the mere fact of deceit defeat a prosecution for there are circumstances when the use of deceit is the only practicable law enforcement technique available.

5. Under the objective test of the entrapment defense, the focus of inquiry is not on the predisposition of the defendant to commit the crime charged, but rather is on the conduct of the law enforcement officials.

6. The doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not a law enforcement officer or a person acting in cooperation with a law enforcement officer.

7. Absent evidence of inducement by law enforcement officials, a reverse buy or reverse sting operation does not constitute entrapment as a matter of law.

8. A defendant in a criminal case is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive or unsatisfactory the evidence may be.

9. In order to be entitled to an entrapment instruction, defendant must produce evidence of government inducement.

Edward K. Harada (Linda C. Ramirez, on the brief), Deputy Public Defenders, Honolulu, for defendant-appellant.

James M. Anderson, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ. ^*

MOON, Justice.

Defendant-appellant Louis Agrabante (defendant) appeals from his conviction for promoting a dangerous drug in the first degree, a violation of Hawaii Revised Statutes (HRS) § 712-1241(1)(a)(i) (1985). Defendant was arrested and charged after he purchased cocaine from an undercover police officer in a "reverse buy" operation. On appeal, defendant contends that (1) the trial court erred in failing to dismiss the charge against him based on alleged outrageous police conduct that violated his due process rights; (2) the reverse buy was entrapment per se; (3) the court erred in refusing to instruct the jury on the defense of entrapment; (4) the court erred in refusing to redact portions of a tape-recorded telephone conversation and a videotape which allegedly referred to defendant's predisposition and propensity to purchase drugs; and (5) he was deprived of a fair trial because of the prosecutor's misconduct in referring to matters regarding undercover investigations and drug dealing.

Based on the reasons that follow, we affirm defendant's conviction.

I.

Defendant was arrested on March 6, 1990 after purchasing approximately one ounce of cocaine from undercover narcotics officer James Wardle (Wardle). The drug transaction was arranged by defendant's friend, Kamaile Shoaf (Shoaf). Defendant had no contact with Wardle prior to the transaction.

The events leading up to defendant's arrest began on February 21, 1990, when Wardle went to the Shindig Bar in downtown Honolulu, posing as a major drug trafficker. In an effort to reach the larger or mid-level drug dealers, Wardle had been instructed to make it known that he was selling large amounts of cocaine, and to sell no less than an ounce of the drug at a time.

At the bar, Wardle was introduced to Shoaf by Gerald Arthur (Arthur), a person with whom Wardle had conducted drug transactions on prior occasions. Arthur asked Shoaf to obtain some heroin for Wardle, and Shoaf agreed, provided that Wardle drive her to where she could get it. Wardle drove Shoaf to the location where she purchased three "papers" ¹ of heroin at $40 each, one of which was for herself. Wardle paid Shoaf $80 for the other two papers. On the way back to the bar, Shoaf wanted to inject the heroin. She became irritable and upset when Wardle indicated that he preferred she not do so. However, because Wardle did not want to "blow [his] cover," he ultimately drove Shoaf to a place where she could shoot the heroin. At trial, Wardle testified that arresting Shoaf was not part of his instructions, but that he could make an arrest if "extremely necessary" to protect himself and others. As they were driving back, Wardle told Shoaf he would sell cocaine to her friends at $1,000 to $1,500 an ounce and give her either money or cocaine in return. Shoaf indicated she wanted cocaine.

On March 4, 1990, Wardle again drove Shoaf to a location where she could purchase heroin. Wardle gave her money to buy two papers for him and also lent Shoaf money, which she used to buy a paper of heroin for herself. Shoaf once again wanted to inject the heroin while in Wardle's truck. Shoaf was pale, sweaty, and became frustrated when she could not find a vein, so Wardle stopped the truck. At Shoaf's request, Wardle handed her his belt to use as a tourniquet. Shoaf also asked Wardle to pull on the belt, which he did. However, it is unclear whether Shoaf injected herself while Wardle assisted with the tourniquet because Wardle testified at trial that Shoaf returned the belt to him before she injected herself.

On March 5, 1990, Shoaf telephoned Wardle and advised that she had a buyer (defendant). That conversation was tape-recorded. The next day, March 6, 1990, Shoaf and defendant met Wardle at the location Wardle had specified. Defendant was to have purchased an ounce of cocaine for $1,000 but had only $690 at the time. After some discussion, Wardle agreed that defendant could pay the balance the next day. Wardle then collected the $690 and handed the cocaine to defendant. After giving the prearranged signal to the undercover surveillance team who had been videotaping the transaction, police moved in for the arrest. In order not to reveal his identity as a police officer, Wardle was arrested along with Shoaf and defendant.

Prior to trial, defendant moved to exclude, among other things, any testimonial or documentary evidence that would show his propensity or predisposition to commit the offense charged. Specifically, defendant sought to exclude the March 5, 1990 tape-recorded telephone conversation between Shoaf and Wardle, and the videotape of the March 6, 1990 drug transaction. Further, defendant argued that he should have the benefit of the defense of entrapment because Shoaf was an unwitting person who induced defendant to make a drug transaction with an undercover police officer. The trial court disagreed, finding that an entrapment defense was not applicable.

When the recorded telephone conversation and the videotape were offered into evidence, defendant objected, arguing that the taped conversation contained language which pointed to defendant's predisposition to commit the crime charged, and therefore should be redacted. For example, statements such as "[y]ou got somebody who want some?," "he's been waiting since two o'clock," and he's been "waiting and waiting." Defendant also submitted that the videotape contained similar language, such as "[he] had the money yesterday," and thus should also be redacted. However, the court overruled defendant's objections and allowed the tapes to be played, unredacted, for the jury.

The defendant also requested that the court instruct the jury on the defense of entrapment. However, the trial court refused to give any entrapment instructions on the ground that the evidence did not show inducement by the police or a police agent.

The jury found defendant guilty as charged. Defendant's timely appealed followed.

II.

A. Due Process Violation

Defendant failed to move to dismiss the charge against him at trial, but contends on appeal that the trial court committed plain error when it failed to dismiss on the ground that the police conduct in this case was so outrageous that due process principles barred his conviction. "Generally, appellate courts will not consider questions which were not raised in the trial courts." State v. Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1027 (1975) (citation omitted). However, "where plain errors were committed and substantial rights were affected thereby, the errors 'may be noticed although they were not brought to the attention of the [trial] court.' " State v. Fox, 70 Haw. 46, 55, 760 P.2d 670, 675 (1988) (citing Hawaii Rule of Penal Procedure (HRPP) 52(b)).

Defendant argues that the outrageous police conduct, which violated his right to due process, consisted of 1) befriending Shoaf, a heroin addict, and providing her transportation, money, and otherwise assisting in the maintenance of her addiction, and 2) the reverse buy operation itself, where the police supplied the cocaine and sold it to the defendant.

In considering the defense of entrapment, the United States Supreme Court accepted the proposition that the defense of due process based on outrageous conduct may be available under certain extreme circumstances. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court stated, "[w]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial...