State v. Bjerkaas

• Decision Date: 27 June 1991
• Docket Number: No. 90-1560-CR,90-1560-CR
• Citation: 472 N.W.2d 615,163 Wis.2d 949
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kerry B. BJERKAAS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 615

472 N.W.2d 615

163 Wis.2d 949

STATE of Wisconsin, Plaintiff-Respondent, v. Kerry B. BJERKAAS, Defendant-Appellant. ^d

No. 90-1560-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 8, 1991.

Opinion Released June 27, 1991.

Opinion Filed June 27, 1991.

John M. Brinckman of Brinckman & Brinckman, La Crosse, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff-respondent.

William A. Pangman of The Law Offices of William A. Pangman & Associates, S.C., Waukesha, amicus curiae, for The Wisconsin Ass'n of Criminal Defense Lawyers.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Kerry Bjerkaas appeals from a judgment convicting her of aiding and abetting the sale of cocaine and an order denying her motions for postconviction relief. The issues are: (1) whether the trial court erred in refusing to instruct the jury on entrapment as a defense; (2) whether the court's failure to consult with counsel before answering a question from the jury during deliberations constituted prejudicial error; and (3) whether the court erred when it precluded defense counsel from arguing "jury nullification"--that the jury had the right to "discard the [court's] instructions and the law and find [Bjerkaas] not guilty because it seems fair."

We conclude that the trial court did not err in refusing to give an entrapment instruction and that Bjerkaas was not prejudiced by the court's failure to consult with counsel before answering the jury's question. We also hold that it was not error to deny counsel's request to argue "jury nullification."

Bjerkaas worked as a server at a pizza restaurant. Two undercover drug enforcement agents, Pat Buckley and Mike Blokhuis, frequented the restaurant and became friendly with Bjerkaas, often chatting with her while they ate and leaving generous tips. Buckley testified that during their conversations Bjerkaas would often make unsolicited comments about her drug use.

Buckley had approximately ten contacts with Bjerkaas prior to the incident that led to her arrest. All were at the restaurant except one, when he took her on a "date" to celebrate her birthday. ¹ On that occasion they visited a tavern where they encountered Mike Creuzinger, one of Bjerkaas's co-workers at the pizza restaurant. He came to their table and spoke with them, stating at one point that he could get them any drugs that they wanted at any time.

Several days later, when Buckley and Blokhuis were dining at the pizza restaurant, they asked Bjerkaas if she knew where they could purchase some cocaine. After "checking around," she returned to their table and told them they could get some from Creuzinger. Buckley and Blokhuis returned to the restaurant a few days later to make the purchase, and when they learned that Creuzinger was working in the kitchen, Buckley asked Bjerkaas to ask whether they could meet him in the men's room to make the purchase.

Bjerkaas returned several minutes later and told the men that Creuzinger was too busy to leave the kitchen. She also told them that Creuzinger needed $250 in order to get the cocaine for them. She suggested that Buckley give her the money and she would give it to Creuzinger. She also told him to leave the restaurant and call in a pizza order in a few hours, which would enable Creuzinger to leave the kitchen and deliver the cocaine to them. The sale was consummated shortly thereafter and, as indicated, Bjerkaas was arrested and charged as a party to the offense.

I. ENTRAPMENT

At the trial's conclusion, Bjerkaas requested that the court instruct the jury on the defense of entrapment. Her request was denied and she claims this was reversible error.

A trial court is justified in declining to give a requested instruction in a criminal case--including an instruction on the defense of entrapment--if it is not reasonably required by the evidence. State v. Amundson, 69 Wis.2d 554, 564, 230 N.W.2d 775, 781 (1975). And when the appeal is from such a denial, we view the evidence "in the most favorable light it will reasonably admit from the standpoint of the accused." State v. Stoer, 134 Wis.2d 66, 87, 396 N.W.2d 177, 185 (1986), quoting Johnson v. State, 85 Wis.2d 22, 28, 270 N.W.2d 153, 156 (1978).

Entrapment may be a defense to a charge when the defendant is "induce[d]" by the police "to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him." State v. Hochman, 2 Wis.2d 410, 413, 86 N.W.2d 446, 448 (1957). Establishing the defense is a two-step process:

[T]he defendant may assert the affirmative defense of entrapment if he assumes the burden of persuasion to show that he was induced to commit the crime. In the event he has successfully assumed that burden ..., the burden then falls on the state to convince the jury beyond a reasonable doubt that, despite the government's inducement, the defendant was predisposed to commit the crime. State v. Saternus, 127 Wis.2d 460, 474, 381 N.W.2d 290, 296 (1986).

"If the defendant cannot discharge the burden of persuasion that there was improper inducement, entrapment drops out as an issue in the case." Saternus, 127 Wis.2d at 479, 381 N.W.2d at 299. Thus, entrapment exists only "where the police have instigated, induced, lured or incited the commission of the crime" to such a degree as to "remove the element of volition from the conduct of the defendant." Amundson, 69 Wis.2d at 565, 230 N.W.2d at 781. Merely seeking or offering to buy drugs is not the kind of inducement which establishes entrapment. Hawthorne v. State, 43 Wis.2d 82, 90, 168 N.W.2d 85, 89 (1969); Wis J I--Criminal 780, comment at 4 (1986). Finally, because the defense of entrapment "is designed to exonerate a person who under ordinary circumstances is 'guilty,' " it is "disfavored" in the law and "should not be ... entertained lightly by courts." Saternus, 127 Wis.2d at 471, 381 N.W.2d at 294-95.

Applying these principles to the evidence in this case, viewed in the light most favorable to Bjerkaas, we conclude that that evidence does not reasonably require submitting the issue of entrapment to the jury, and that it was thus proper for the trial court to decline to do so. Buckley simply asked Bjerkaas to direct him to a person who previously had offered to sell him drugs. ² He then asked her to carry a message to that person, who was unavailable at the time. But Bjerkaas did considerably more than this: she took several voluntary actions to facilitate the transaction.

Both Buckley and Blokhuis testified that they never asked Bjerkaas to sell them drugs or to obtain drugs for them. Their intention was to purchase the cocaine from Creuzinger; and Bjerkaas, by her own voluntary actions, became the intermediary. She obtained the purchase price from Creuzinger and relayed it to Buckley and Blokhuis; she offered to take the money to Creuzinger, and she obtained information from him as to when and where the transaction could be consummated and carried this information back to the agents.

Bjerkaas argues, however, that Buckley entrapped her through friendship--that he induced her to act as she did by cultivating and developing a friendship with her. Simply cultivating a friendship with a person later arrested for selling drugs, however, does not constitute entrapment. State v. Boutch, 60 Wis.2d 443, 449, 210 N.W.2d 730, 733 (1973). There is nothing in the evidence in this case to indicate that Bjerkaas's activities in furtherance of the purchase and sale of the cocaine were not of her own volition but rather were the result of pressure or inducement from Buckley. The trial court properly refused to give the requested instruction. ³

II. THE JURY'S QUESTION

Bjerkaas next argues that the trial court committed prejudicial error when it failed to consult with counsel before answering a question propounded by the jury during their deliberations. The jurors sent a note to the court asking whether "entrapment is an issue to be considered" and for a definition of the term. The court, without contacting counsel, simply wrote "no" on the note and sent it back to the jury room.

The state concedes that answering the jury's question without notification of and consultation with counsel was "constitutional error." See State v. Burton, 112 Wis.2d 560, 570, 334 N.W.2d 263, 268 (1983) (in absence of waiver, communications between court and jury during deliberations held to violate defendant's right to be present at trial and thus "constitutional error"). The question thus becomes whether, considering the substance of the court's communication--and the circumstances under which it was made--in light of the entire trial, the error was prejudicial. Id. at 571, 334 N.W.2d at 268.

A constitutional error is harmless if the state can prove beyond a reasonable doubt that it did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). If there is a reasonable possibility, however, that the result of the trial would have been different had the error not occurred, it is prejudicial and requires reversal. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). That is not the situation here.

We already have held that the trial evidence was insufficient to support an instruction on entrapment. As a result, the court's answer to the jury's inquiry was correct. It was a legally appropriate response and we do not see how Bjerkaas can claim harm or prejudice as a result of her or her counsel's inability to be present and make argument to the court before the answer was provided.

Bjerkaas disagrees. She points to the court's use of a broad-tipped pen to write the word "no" at the foot of the sheet of paper on which the jury's question was written. She contends that the effect of this was to emphasize the word, and that it was further emphasized because the jury retained the sheet containing the...