State v. Amodei, 48405

• Decision Date: 09 April 1977
• Docket Number: No. 48405,48405
• Citation: 563 P.2d 440,222 Kan. 140
• Parties: STATE of Kansas, Appellee, v. Kenneth AMODEI, Appellant.
• Court: Kansas Supreme Court

Page 440

563 P.2d 440

222 Kan. 140

STATE of Kansas, Appellee, v. Kenneth AMODEI, Appellant.

No. 48405.

Supreme Court of Kansas.

April 9, 1977.

Syllabus By The Court

1. Entrapment may arise when defendant's criminal conduct was induced or solicited by a public officer for the purpose of obtaining evidence to prosecute such person.

2. The defense of entrapment is generally not available to a defendant who denies that he committed the offense charged.

3. When the defense of entrapment is not available to an accused, evidence of prior disposition to commit crimes of the nature charged is not relevant and it is not error to exclude such evidence.

4. Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court, and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of judicial discretion.

5. Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented whether the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts, and an instruction on entrapment should be given on request.

6. When it is not shown the witness had sufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by a trial court.

7. When an accused is charged with possession of drugs and has presented a viable defense based on entrapment, evidence of habitual use, or nonuse, of such drugs is relevant on the question of predisposition to possess and should be admitted in evidence.

8. In a prosecution for the sale of narcotics under Count I of the information in which the defendant denied committing the offense charged the record is examined and it is held: (1) The defense of entrapment was not available to the defendant, (2) evidence bearing on lack of predisposition to commit such an offense was properly excluded, and (3) no reversible error is found; however, in the prosecution under Counts II and III of the information for conspiracy to possess and possession of narcotics on a separate occasion the record is examined and it is further held: (1) Under the evidence presented on Counts II and III the defense of entrapment was available as a defense, (2) it was error to refuse a requested instruction on entrapment, (3) evidence bearing on lack of predisposition to use or possess narcotics was erroneously excluded, and (4) the defendant is entitled to a new trial on Counts II and III of the information.

C. William Cather, Wichita, argued the cause and was on the brief for appellant.

Stephen Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Christopher A. Randall, Asst. Dist. Atty., were with him on the brief for appellee.

FROMME, Justice.

Kenneth Amodei was convicted by a jury on three narcotic charges. The resulting sentences were ordered to run concurrently and were as follows: Count I (sale of heroin) not less than two nor more than twenty years; Count II (conspiracy to possess heroin) not less than one nor more than five years; Count III (possession of heroin) not less than two nor more than twenty years. The incident which gave rise to Count I occurred around midnight on January 9, 1974. The incident giving rise to Counts II and III occurred around 10:00 p. m. on January 10, 1074. We will consider Count I separately. It involved a charge of sale of heroin.

Defendant admitted at the trial he had used heroin in the past but was participating in the methadone withdrawal program at Wichita. He further testified he had not sold or offered to sell heroin since he had arrived in Wichita. He became acquainted with Steve Deems through Pam Shirley; both turned out to be undercover agents. Defendant Amodei denied making the sale charged in Count I of the information. He admitted that Deems and Shirley came to his apartment on the night in question (January 9) but testified he left as soon as they arrived. He attended a midnight concert with a friend, Joelyn Schroeder. Ms. Schroeder corroborated his story but it was later stipulated during the trial that the concert was held on January 8, not January 9.

Agents Deems and Shirley testified that on January 9, they went to defendant's apartment around midnight. Defendant was gone but they waited there for him. When defendant arrived Agent Deems asked if he had any 'shooting dope' (heroin). Defendant took a quantity of a drug from a desk, divided it and gave part to Deems. Deems paid him $28.00. Defendant allegedly informed the agents he could furnish more heroin the next day and made arrangements for them to return the following evening.

Defense counsel requested that the court instruct the jury on the defense of entrapment as to the second and third counts (conspiracy to possess and possession of heroin). On appeal he argues that an entrapment instruction should have been given, and the failure of the court to give the instruction should entitle defendant-appellant to a new trial on all counts, including Count I. We do not agree. At the trial defendant denied any participation in the January 9 incident.

In order for defendant to be entitled to an instruction on any particular defense there must be some evidence to support that defense and justify the instruction. Entrapment may arise when defendant's criminal conduct was induced or solicited by a public officer for the purpose of obtaining evidence to prosecute such person. Such a defense presupposes that defendant engaged in the criminal conduct.

This court has previously considered when such a defense is available. In State v. Farmer, 212 Kan. 163, 510 P.2d 180, it is held 'The defense of entrapment is generally not available to a defendant who denies that he committed the offense charged.' (Syl. 4.)

As to Count I (sale of heroin) defendant denied any part in the incident and the record disclosed no competent evidence to justify giving an instruction on entrapment. See State v. Farmer, supra, and State v. Fitzgibbon, 211 Kan. 553, 557, 507 P.2d 313.)

Appellant next argues that the trial court erred in denying him the opportunity of presenting evidence to show a lack of previous disposition to commit the crime by excluding testimony of Ms. Schroeder and a Dr. Harvey. Both would have testified concerning his voluntary participation in a methadone withdrawal program and a concentrated effort on his part to rid himself of the heroin habit.

Generally, evidence of prior disposition or lack of prior disposition to commit crimes or other civil wrongs is not admissible to establish a basis for an inference that a person did or did not commit a crime on another specified occasion. See K.S.A. 60-455. However, if the accused introduces evidence to establish the defense of entrapment, as codified in K.S.A. 21-3210, he then raises the issue. The prosecution then may show prior disposition of the accused to commit such crimes. See State v. Reichenberger, 209 Kan. 210, 495 P.2d 919. Such evidence is relevant only on the question of entrapment. When the defense of entrapment is not available to an accused, evidence of prior disposition to commit crimes of the nature charged is not relevant and it is not error to exclude such evidence. In the present case the defense of entrapment was not available to defendant on Count I of the information and it was not error to exclude the proffered testimony as it related to Court I. to Count I. (sale of hereoin) concerns the refusal of the trial court to honor his challenge for cause of prospective juror Glen Bryant. Defense counsel's objection to this particular juror was based on the employment of Bryant in the personnel department of the city. Bryant's employment required him to investigate the qualifications of those applying for jobs with the city, including police officers. Defense counsel questioned Bryant as to whether he might give special weight to testiomy given by police officers. Bryant stated he did not believe a police officer's testimony was any better than that of anyone else; that a police officer could be mistaken in his testimony; and that he believed an officer would tell the truth and would not intentionally tell a falsehood.

The court refused to excuse Bryant for cause, stating that a juror has a right to begin with the premise that every witness will tell the truth, whether he is a policeman or not. (Even though not removed for cause, Mr. Bryant was removed from the panel by peremptory challenge exercised by the defendant. See State v. Sagebiel, 206 Kan. 482, 480 P.2d 44.)

K.S.A. 22-3410 provides that a prospective juror may be challenged for reasons set forth in the statute and that challenges for cause shall be tried to the court. The only basis for challenge applicable here appears to be K.S.A. 22-3410(2)(i) which reads:

'His state of mind with reference to the case or any of the parties is such that the court determines there is a doubt that he can act impartially and without prejudice to the substantial rights of any party.'

Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court, and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of judicial discretion. (State v. Nix, 215 Kan. 880, 529 P.2d 147; State v. Mahkuk, 220 Kan. 74, 551 P.2d 869.) The court's ruling in the present case was not erroneous, and there was no showing sufficient to establish the state of mind contemplated in K.S.A. 22-3410(2)((i).

The defendant's conviction on Count I (sale of heroin) is hereby affirmed on appeal.

We now turn to Counts II and III. The incident giving rise to these counts occurred around 10:00 p. m. on January 10, 1974. The two agents went to defend...