State v. Boutch, S
| Decision Date | 02 October 1973 |
| Docket Number | No. S,S |
| Citation | 60 Wis.2d 397,210 N.W.2d 751 |
| Parties | STATE of Wisconsin, Respondent, v. Patrick J. BOUTCH, Appellant. tate 101. |
| Court | Wisconsin Supreme Court |
Patrick R. Doyle, Doyle & Woodmansee, La Crosse, for appellant.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.
The appeal raises the following issues:
1. Was the evidence sufficient to support the finding of guilt;
2. Did the trial court err in refusing to submit a requested instruction on entrapment;
3. Was the prosecution of the defendant an exercise in discriminatory law enforcement;
4. Did the manner of selecting the jury violate the defendant's right to an impartial jury and his right to due process of law.
Sufficiency of evidence.
The evidence showed that the defendant was present in the Varsity Bar on the evening of February 19, 1971. Defendant had a conversation with Susan Naas concerning the defendant's assisting her in the sale of methamphetamine.
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Shortly after this conversation, the defendant returned and introduced Kim Kasabuske to Susan Naas. Boutch stated to Susan that Kasabuske was interested in purchasing drugs.
There was evidence that Boutch actively searched out Kasabuske so as to interest him in the purchase of the drug.
'Q. What did you talk about?
'A. Mr. Boutch asked me if I would be interested in buying any 'meth' which is the street term for meth amphetamine.
'. . .
After this conversation, Boutch spoke to Susan Naas. He returned to Kasabuske and informed him that the 'meth' could be had for $20.00. Defendant then introduced Kasabuske to Susan Naas and the sale was completed.
The defendant argues that he was acting on behalf of the buyer (the state agent) and not on behalf of the seller of the dangerous drug; that he was not in a position whereby he could intend to aid and abet in the sale of the said drug. It is claimed that the defendant intended only to facilitate the successful purchase of said drugs on the part of the state agent and was in no way involved in the sale of the dangerous drug. We find no merit in this contention.
In the light of the evidence adduced, the jury was justified in concluding that defendant intentionally aided and abetted Susan Naas in the sale of the dangerous drug.
Defendant's claim that he acted solely as an agent of the state in the purchase of the 'meth' is contrary to the evidence. The jury could reasonably infer that there existed a prior arrangement between the defendant and Susan Naas as to his efforts in aiding her to consummate the sale. The evidence adduced was sufficient to support the conviction.
Instruction on entrapment.
The defendant claims the court erred in refusing to instruct the jury as to the issue of entrapment. We do not agree. A trial court is not required to give a requested instruction unless the evidence reasonably requires it. 1 The record is devoid of any evidence which would reasonably so require such an instruction. The trial court properly observed that entrapment was not an issue in this case. It was not error to refuse such an instruction.
Discriminatory enforcement.
The defendant, in a three-pronged attack, claims that he was the victim of unjust discrimination. Such discrimination, he claims, resulted from the granting of transactional immunity by the trial court to Susan Naas in order to insure her testimony against the defendant.
Initially, the defendant contends that the trial court is required under Sec. 972.08, Stats. to determine not only the basis upon which the witness refuses to testify is because such testimony may tend to incriminate her, but also to delve into other 'circumstances.' The defendant, however, fails to specify what those 'circumstances' are. Such a contention is without statutory or constitutional basis. All that the trial court must determine under Sec. 972.08(1), Stats. is that the refusal of the witness to testify is grounded on the witness' Fifth Amendment rights. The trial court is not required to go further and determine whether there are other reasons why the witness is reluctant to testify without being ordered to do so. The statute and procedure thereby provided have been held to be constitutional. State v. Blake (1970), 46 Wis.2d 386, 390, 175 N.W.2d 210.
Secondly, the defendant claims that the district attorney committed an abuse of discretion in moving to grant Susan Naas immunity in order to compel her to testify and insure the conviction of her agent, Patrick Boutch. We find no abuse of discretion. The action of the district attorney is well within his discretionary power.
State ex rel. Kurkierewicz v. Cannon (1969), 42 Wis.2d 368, 378, 166 N.W.2d 255, 260.
Finally, the defendant's claims that the offer of immunity from the state for testimony by one involved in a criminal transaction against another individual involved in the same criminal transaction deprives that individual of equal protection of the laws, is violative of due process and is an exercise in invidious discrimination are without merit. See United States v. Dalton (5th Cir. 1972), 465 F.2d 32; Newman v. United States (1967), 127 U.S.App.D.C. 263, 382 F.2d 479. In the absence of an allegation and proof that the defendant is a member of a class being prosecuted solely because of race, religion, color or other arbitrary classifications, or that he alone is the only person who has been prosecuted under this statute, the defendant's claim cannot come within the class of unconstitutional discriminatory enforcement. Yick Wo v. Hopkins (1886), 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; McFarland v. American Sugar Refining Co. (1916), 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899.
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