State v. Amundson

• Decision Date: 30 June 1975
• Docket Number: No. S,S
• Citation: 230 N.W.2d 775,69 Wis.2d 554
• Parties: STATE of Wisconsin, Respondent, v. Niles AMUNDSON, Appellant. tate 194.
• Court: Wisconsin Supreme Court

Page 775

230 N.W.2d 775

69 Wis.2d 554

STATE of Wisconsin, Respondent, v. Niles AMUNDSON, Appellant.

No. State 194.

Supreme Court of Wisconsin.

June 30, 1975.

The defendant, Niles Amundson, was convicted by a jury on one count of delivery of a controlled substance, to-wit: marijuana, contrary to sec. 161.41(1)(b), Stats. The defendant was sentenced to an indeterminate term of one to three years in the Wisconsin state prison. Execution of the sentence was stayed and the defendant was placed on three years' probation, with certain conditions imposed.

Following entry of the judgment, defendant moved for a vacation of the verdict and the judgment, a dismissal of the action, and for a new trial. These motions were denied by the trial court. The defendant appeals from the judgment and the order denying the motion for a new trial.

Howard B. Eisenberg, State Public Defender, and Robert J. Paul, Asst. State Public Defender, Madison, for appellant.

Bronson C. LaFollette, Atty. Gen., and Wm. L. Gansner, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

In February, 1973, while driving to Eau Claire from Superior, police undercover agent, David M. Gray, a/k/a David Willie, picked up two hitchhikers. Gray declined an offer to buy marijuana from the hitchhikers. Gray told the hitchhikers, however, that he was interested in buying a large quantity of marijuana. The hitchhikers took Gray's name and phone number and told him someone would contact him. One week later, in Superior, Gray received a phone call from the defendant who offered to sell Gray some marijuana. The defendant informed Gray that he had suppliers and could sell Gray as much marijuana as Gray desired. A meeting was arranged for March 1, 1973, in the student union at the University of Wisconsin-Superior to conduct the sale. The defendant admitted that he had received the note from the hitchhikers and that he contacted Gray for the purpose of selling marijuana to him. He testified, however, that he did not know where to get the marijuana, and assumed that the note was given to him by the two hitchhikers because he had openly discussed buying some land in Afghanistan where marijuana could legally be raised.

On March 1, 1973, the police gave Gray $165 to make the purchase. Gray went to the Student Union Building at the University of Wisconsin-Superior, at 11:15 a.m., at which time he gave the money to the defendant, with the understanding that one pound of marijuana would be delivered to Gray that night. The defendant admits that he accepted the money, intending to get the marijuana for Gray. That evening an electronic device was attached to Gray's body at the Superior police department so that his conversations could be monitored. A second monitoring device was made available and given to University Security Officer George Sandmon to be used by Sandmon in monitoring Gray's conversation while in the Union on March 1st. Sandmon, without the knowledge of Gray or the Superior police, apparently attempted to tape these conversations by placing a cassette tape recorder near the monitor. This tape and others were subsequently erased in a bulk erasure by the university security officers at the end of the then-current school semester.

The defendant testified that he arrived at the Union at 7 p.m. that evening to meet Gray but had to leave before Gray arrived. The defendant left a message with a friend, Diane Prettie, that he would return and that Gray was to wait.

Gray testified that he arrived at the Union at about 7:15 p.m. He asked the bartender in the Union beer bar if he had seen the defendant, receiving a negative response. Gray stated that he was approached by Prettie at 7:20 p.m., who delivered the defendant's message. They talked for a short time, but Gray stated that he did not pay much attention to the conversation as he was nervous and looking for the defendant. Gray testified that the conversation was cut off by the defendant's arrival at 8 p.m.

Prettie, when called by the defense, testified that she talked to Gray for 25 minutes in the snack bar and an additional 5 minutes in the beer bar. She stated that Gray appeared very upset and angry and made repeated threats against the defendant assuming that the defendant was doublecrossing him. Prettie testified that Gray indicated he was syndicated and a member of the criminal underworld and that his people would kill the defendant if he was 'ripping him off.' Prettie also stated that Gray told her he had shot a man that night in Hibbing, Minnesota, for crossing the organization. Prettie further testified that Gray had a cut on his nose which Gray told her was from the Hibbing incident.

Clyde Timothy Hanna, the bartender at the Union beer bar, also testified for the defense that Gray looked erratic, like the was 'on something' the night of March 1, 1973.

Gray categorically denied making any of the statement attributed to him by Prettie. He admitted being nervous and that he had had four drinks before coming to the Union.

After Gray and Prettie were joined by the defendant in the Union, the defendant and Gray went to a separate table. The defendant informed Gray that he could not get the marijuana. Gray testified that the defendant wanted to check a few more places before returning the money. The defendant claimed that he told Gray he wanted to back out of the deal, but that Gray threatened him, talking about what the syndicate did with double-crossers and what had happened to the man in Hibbing. The defendant described Gray as not appearing nervous; rather, he was 'cool and collected.'

Gray and the defendant left the Union and went to the defendant's apartment, where the defendant retrieved the money and made some additional contacts on the phone to try to get the marijuana. According to the defendant, Gray refused the money and continued to threaten him. The two proceeded to Duluth, where the defendant stopped at a friend's house, allegedly to get help because he feared Gray's threats. The defendant stated that during this ride Gray indicated he had a gun.

According to the testimony of the defendant, the two men then drove from Duluth back to the Union and went in for a cup of coffee. Gray's threats allegedly continued, but he took the money back from the defendant with the understanding that the defendant would obtain the marijuana. While in the Union, they were joined by the defendant's wife who later went with the defendant to another restaurant where the defendant told her of the threats. Rather than seek assistance from the police, defendant decided that the only way to get rid of Gray was to sell him the marijuana.

Gray, at all times, denied that he made any threats or mentioned any syndicate or made any reference to Hibbing, Minnesota, to the defendant, or to anyone else. He also denied telling the defendant that he had a gun. He stated that upon returning to the Union from Duluth, the defendant suggested that Gray buy five pounds of marijuana as it would be easier to get that amount. The defendant also asked if Gray wanted to buy some cocaine. Gray further testified that the defendant said he was afraid to sell to him because he suspected Gray was a narcotics' agent.

Becky Amundson, defendant's wife, testified for the defense that she joined the defendant and Gray at about 9:45 p.m. in the Union on March 1, 1973. She also corroborated the defendant's testimony that she was told of the threats made by Gray.

Prettie and the defendant testified that she told the defendant about the alleged threats by Gray on March 2, 1973. The defendant was also informed by friends that he and Gray were being watched by the police. The defendant stated that he thought this was because Gray was a member of the underground, but could not explain why he then did not go to the police for help, except to say that he didn't think the police would help him.

The defendant called Gray thereafter and made another appointment to meet him at the Union on March 5, 1973. Gray and his car were thoroughly searched before the meeting by the police. The police observed the defendant put something in the back of Gray's car in the Union parking lot. Gray subsequently met the defendant on the steps to the Union, at which time the defendant told him the marijuana had already been placed in Gray's car. Payment was then made. Gray testified that the defendant again offered to supply him with five pounds of marijuana a week, and Gray stated that he would check with his people and left. The marijuana was subsequently found by the police in the rear seat of Gray's car.

The defendant testified that he only went through with the deal because he was scared of Gray. He stated that he had no source of supply and that it was necessary to ask 15 to 20 people where he could obtain the one pound of marijuana which he finally bought from someone at school whom he didn't know.

The defendant was arrested on March 15, 1973. At the time of his arrest $901.40 was found in his possession. This fact was admitted into evidence over defense objection.

A statement by the defendant, confessing to the sale, was also admitted into evidence. The defendant objected to those portions of the statement which asserted that defendant's claims to Gray that he was a dealer in drugs were lies, on the grounds that such portions were prejudicial and not relevant to the issues in question.

The court instructed the jury with regard to the defense of coercion, and, sua sponte, on the defense of entrapment.

Additional facts will be discussed in considering the issues raised by the defendant on this appeal.

The following issues are dispositive of this appeal:

1. Did the trial court commit reversible error in sua sponte giving an entrapment instruction?

2. Did the trial court commit reversible error in allowing, over objection, material with regard to the defendant's prior drug activities to come before the jury?

3. Was the...