State v. Batiste

• Decision Date: 06 March 1978
• Docket Number: No. 60711,60711
• Citation: 363 So.2d 639
• Parties: STATE of Louisiana v. Phill BATISTE and Edward Lee.
• Court: Louisiana Supreme Court

Page 639

363 So.2d 639

STATE of Louisiana v. Phill BATISTE and Edward Lee.

No. 60711.

Supreme Court of Louisiana.

March 6, 1978.

On Rehearing Oct. 9, 1978.

Rehearing Denied Nov. 9, 1978.

William W. Miles, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Phill Batiste.

Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for Edward Lee.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Following a trial by jury the defendants, charged with distribution of heroin, La. R.S. 40:966, were found guilty of attempted distribution of heroin and sentenced to serve twenty years at hard labor. On appeal defendants rely upon four assignments of error which comprise two arguments for reversal of their convictions and sentences. For the reasons given below we affirm the conviction and sentence of Edward Lee and reverse the conviction and sentence of Phill Batiste.

The key witness in the State's case against the defendants was Earl Brown. As part of a plea bargaining arrangement negotiated in federal court following his indictment on various drug charges, Brown agreed to become a "testifying informant" in federal and state drug prosecutions. Pursuant to this plea bargaining agreement, Brown was given $200 by police officers on December 18, 1975 in order to purchase heroin from the defendants. After the alleged heroin transaction transpired, to which there were no witnesses besides the participants, Brown turned over twenty-three packets of heroin to the police. The defendants were arrested shortly thereafter and charged with distribution of heroin on the basis of the transaction with Earl Brown.

ASSIGNMENTS OF ERROR NOS. 1 and 2

At trial the first witness to testify on behalf of the prosecution was Al Winters, an assistant United States attorney, who was involved in Earl Brown's plea bargaining arrangement in federal court. Winters testified that all counts except one were to be dismissed in exchange for Brown's testifying "completely and truthfully" in approximately thirty cases in state and federal courts. At the time of the present trial Brown had testified in two cases in federal court and fifteen cases in state court.

One of the basic rules of evidence is that testimony which establishes the credibility of a witness is inadmissible until the credibility of that witness has been attacked. 4 J. Wigmore, Evidence, § 1104 (Chadbourn rev. 1972); C. McCormick, Evidence, § 49 (Cleary ed. 1972). Louisiana codifies this principle in La. R.S. 15:484, which provides:

"Before a witness has been sworn he can be neither corroborated nor impeached, nor is testimony to establish the credibility of a witness admissible until that credibility has been attacked."

Various purposes are served by this rule. Wigmore suggests that witnesses are assumed to be of normal moral character for veracity. Therefore, as a corollary to this assumption, there is no reason why time should be consumed in proving that which is assumed to exist. It is only when credibility has been attacked that it becomes permissible to introduce evidence establishing credibility. 4 J. Wigmore, Supra. See also, Homan v. United States, 279 F.2d 767 (8th Cir. 1960); Cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960); Comments, Federal Rule of Evidence 608(a)(2); cf. State v. Cato, 116 La. 195, 40 So. 633 (1906). In addition to insuring judicial efficiency, courts have recognized that an attempt to establish the credibility of a witness before that credibility has been assailed carries the inherent prejudicial danger of bolstering, in advance, a witness' testimony and increasing its probative strength with the jury. See, e. g., Perkins v. United States, 315 F.2d 120 (9th Cir. 1963); Homan v. United States, supra; Annotation, 15 A.L.R. 1065; 33 A.L.R. 1220.

Although prejudicial error was committed through Winters' bolstering the credibility of Earl Brown before that credibility was assailed, defendants failed to object timely and to make known to the court the correct grounds therefor. Defendants allowed extensive testimony by Winters before finally objecting on the ground that it constituted opinion testimony. The tardiness of the objection and the failure to point out the true reason for the inadmissibility of the evidence thus obscured it from the court's view. An irregularity or error cannot be availed of after verdict unless it was properly objected to at the time of its occurrence. La.C.Cr.P. art. 841.

ASSIGNMENTS OF ERROR NOS. 3 and 4

These assignments present the issue of whether the trial court erred in allowing Earl Brown to give testimony concerning defendant Batiste's past involvement with narcotics. The State contends that this testimony was admissible to rebut the defense of entrapment.

During cross-examination of Brown, counsel for Batiste posed the following questions:

"Q. I believe you previously testified you asked Phill Batiste to buy a bundle of heroin for you; is that correct? Ten minutes ago; is that correct?

"A. I asked could he go get me a bundle, sure.

"Q. Phill Batiste didn't walk to you and say, 'Maybe I can get you a bundle of heroin.' You turned to him and said, 'Phill Batiste, can you get me a bundle of heroin?'

"A. I asked could he score me a bundle of heroin. And he said, 'Yes.'

"Q. In other words, you brought it up?

"A. That's right.

"Q. You asked Phill Batiste to get you the narcotics that day; correct?

"A. I asked him could he score me a bundle. He said, 'Yes,' he could."

On re-direct examination, over objection by defense counsel, the State elicited testimony from Brown that he and Batiste had spent time in jail together. Brown further testified that two months before the transaction for which the defendants were on trial, Batiste agreed to sell him some heroin and that Batiste made arrangements for a sale. However, this sale apparently was never consummated. The record does not indicate that the previous episodes of criminal activity and incarceration were connected with the offense on trial in the instant case.

Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. ALI Model Penal Code, Tentative Draft, § 2.10; ¹ W. LaFave and A. Scott, Criminal Law, § 48 (1972). This view, which has been labeled the "subjective" or "origin of intent" test for entrapment, reflects the views espoused in majority opinions of the United States Supreme Court, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The lower federal courts are in accord. See, e. g., United States v. Esquer-Gamez, 550 F.2d 1231 (9th Cir. 1977); United States v. Garcia, 546 F.2d 613 (5th Cir. 1977); United States v. Russo, 540 F.2d 1152 (1st Cir. 1976); United States v. Jackson, 539 F.2d 1087 (6th Cir. 1976). It is so called because it focuses attention on the defendant's predisposition to commit the offense as well as the actions of law enforcement officials. The inquiry under this test goes beyond the fact that criminal conduct was committed at the instance of law enforcement officials. Once government instigation is shown, the inquiry focuses upon the predisposition of the defendant. Under this test, the ultimate question is whether the inducement by the officers or the defendant's own predisposition caused the criminal conduct in question. See, 2 R Cipes, Criminal Defense Techniques, §§ 30.01 et seq. (1976). States are not presently required by the federal constitution to recognize entrapment as a defense, ² but almost all have done so with a majority applying the "subjective" approach. ³

The United States Supreme Court has adhered to the "subjective" approach over the years despite strong dissents and concurrences which advocate that the focal point of the entrapment defense should be whether the government conduct in question can be countenanced by the court. See, Sorrells v. United States, supra (concurring opinion by Justice Roberts, joined by Justices Brandeis and Stone); Sherman v. United States, supra (concurring opinion by Justice Frankfurter, joined by Justices Douglas, Harlan and Brennan); United States v. Russell, supra (dissenting opinion by Justice Douglas with whom Justice Brennan concurred; dissenting opinion by Justice Stewart, joined by Justices Brennan and Marshall); Hampton v. United States, supra (dissenting opinion by Justice Brennan, joined by Justices Stewart and Marshall). Many commentators agree with the minority or "objective" view. It holds that, since the rationale of the entrapment defense is to deter improper police practices, the character or disposition of the defendant is irrelevant. See Comment, Entrapment: A Critical Discussion, 37 Mo.L.Rev. 633 (1972); Comment, The Defense of Entrapment: Next Move Due Process?, 1971 Utah L.Rev. 266 (1971); Comment, The Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L.Rev. 655 (1974). The ALI Model Penal Code, POD § 2.13 and some state courts have adopted this minority view. See, e. g., State v. Mullen, 216 N.W.2d 375 (Iowa 1974); Grossman v. State, 457 P.2d 226 (Alaska 1969).

This Court has recognized the defense of entrapment and has focused its attention on the predisposition of the defendant to commit the crime at issue as well as the conduct of the police. See, e. g., State v. Harrington, 332 So.2d 764 (La.1976); State v. Kelly, ...