State v. Busscher

• Decision Date: 12 November 1965
• Docket Number: No. 4866,4866
• Citation: 407 P.2d 715,81 Nev. 587
• Parties: The STATE of Nevada, Appellant, v. Harry A. BUSSCHER, Respondent.
• Court: Nevada Supreme Court

Page 715

407 P.2d 715

81 Nev. 587

The STATE of Nevada, Appellant, v. Harry A. BUSSCHER, Respondent.

No. 4866.

Supreme Court of Nevada.

Nov. 12, 1965.

Rehearing Denied Dec. 20, 1965.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Herbert F. Ahlswede, Deputy Dist. Atty., Washoe County, Reno, for appellant.

Bradley & Drendel, Reno, for respondent.

THOMPSON, Justice.

A jury found Busscher guilty of suborning perjury. In accordance with NRS 175.540 he applied for a new trial, before judgment was entered and sentence pronounced. The district court granted his motion, stating that 'the evidence shows the defense of entrapment to have been affirmatively and positively proved.' We take that language to mean that entrapment was established as a matter of law. For the reasons hereafter expressed, we hold that the record shows, as a matter of law, that the defense of entrapment was not established. Accordingly, we reverse the order for a new trial and reinstate the jury verdict.

1. The grounds for another trial of a criminal case are designated by NRS 175.535. Here the defendant Busscher sought a new trial under subdivision 6 of that statute--'[w]hen the verdict is contrary to law or evidence.' Whenever a new trial is granted upon that ground, our initial task is to ascertain precisely what the lower court had in mind; whether it ruled as it did because the verdict was 'contrary to law,' or whether it believed that the verdict was 'contrary to evidence.' A ruling based upon the ground that the verdict is contrary to law presents a question of law that is within our jurisdiction to review. On the other hand, an order for another trial made because the verdict is contrary to evidence involves an evaluation of the evidence, its weight, the credibility of witnesses and the like, and effectively precludes our intervention on appeal. We are constitutionally precluded from overturning the order for another trial when this ground is the basis of the trial court's ruling. Nev. Const. art. 6, § 4.

Historically, Nevada has empowered the trial court in a criminal case where the evidence of guilt is conflicting, to independently evaluate the evidence and order another trial if it does not agree with the jury's conclusion that the defendant has been proven guilty beyond a reasonable doubt. State v. Van Winkle, 6 Nev. 340; State v. Jones, 7 Nev. 408; State v. Mills, 12 Nev. 403; State v. Bauer, 34 Nev. 305, 122 P. 76. In this limited situation, the jury and the court must be convinced of the defendant's guilt. If the court is not convinced, it may protect the defendant to the extent of authorizing another trial before another jury. It is apparent that, when another trial is ordered for the reason that the verdict is contrary to evidence, the decisional process necessarily involves a resolution of conflicting issues of fact--the trial court has simply preferred its evaluation of the conflicting evidence to that of the jury--and we may not, in such case, touch the trial court's ruling. This, among other matters, is what the writers of our Constitution had in mind when they limited our appellate jurisdiction in criminal cases to 'questions of law alone.'

The opposite is true when the reason for another trial is that the verdict is contrary to law. In general terms, this means that the evidence presented is insufficient as a matter of law to sustain a verdict of guilty. This ground normally is not available when the evidence is in conflict as to material facts. Where, however, the evidence is uncontroverted, the lower court in considering a motion for new trial, and this court on review, may decide whether such uncontroverted evidence, as a matter of law, does or does not show the commission of a crime. In this instance, the process of weighing evidence and resolving disputed questions of fact is not involved.

The record of this case does not present a conflict in the evidence. What occurred is not denied. The defendant Busscher chose not to testify, nor was any evidence offered on his behalf. In ordering a new trial, the lower court made clear its view that a crime had not been committed because entrapment was established as a matter of law. Whether that court was correct in so ruling, presents a question of law within our jurisdiction to review.

2. The law of entrapment has been carefully defined in Nevada by a series of decisions. In re Davidson, 64 Nev. 514, 186 P.2d 354; In re Wright, 68 Nev. 324, 232 P.2d 398; Wyatt v. State, 77 Nev. 490, 367 P.2d 104; Adams v. State, (November 1965), 81 Nev. ----, 407 P.2d 169. It is permissible to employ a decoy who, for the purpose of detecting a public offense, furnishes an opportunity for the commission of crime by one possessing the requisite criminal intent. In re Wright, supra; Wyatt v. State, supra. Thus, if the criminal intent originates in the mind of the defendant, withour urging or persuasion by the decoy, entrapment does not exist. Sorrels v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, relied upon by Busscher, does not suggest a different rule. Each case necessarily involves a close analysis of the evidence.

We have carefully studied the record here. As noted, the defendant Busscher did not testify, and all relevant evidence offered by the state stands unrefuted. As we see it, entrapment was not established as a matter of law. Indeed, had an instruction on that doctrine been refused, we could not find error. Wyatt v. State, supra. All of the evidence shows that an employed decoy supplied an opportunity to Busscher to suborn perjury, and that Busscher willingly and intentionally did so.

The Washoe County District Attorney's office, prompted by information from the United States Department of Immigration, employed Ben Wood to contact Busscher, pretending that he (Wood) wished to obtain a Nevada divorce. Wood was a police officer of Oakland, California. Before departing for Reno, and with the consent of the bank manager, Wood opened a checking account with a branch of the Bank of America at Oakland, using the fictitious name of Ben Askew. He also arranged covering employment with a department store of that city. On the morning of January 8, 1964, Wood, identifying himself as Ben Askew, telephoned Busscher's office for an appointment and was told by the secretary to come in at 11:00 a. m. He did so, and shortly thereafter was introduced to Busscher. He advised Busscher that he wanted a divorce, and that Busscher had been recommended to him by several people in Oakland. The usual matters were discussed. As to the legal residence requirement the record shows: Wood: '(A.) He asked was I familiar with the rules and regulations pertaining to divorce in the State of Nevada, and I told him no, I wasn't too clear about it at all, I needed information from him as to just what the procedure would be. Q. All right, then what did he say? A. Well, he said that it would require six weeks residence, and I said, 'Oh, gosh. Well,' I said, 'I don't know how in the world I am going to work that out. I can't get away from the job long enough.' And he replied that, 'Well, we will take care of that later.'' During that office conference Busscher quoted the cost for the divorce to be approximately $247. Wood gave him a check for $50 on account. Before leaving, the matter of residence was again discussed, Wood once more stating that he did not know how he could stay in Nevada six weeks. To this, Busscher replied that it 'could be worked out, he was going to give me a name and address of a person to see and I was to contact this person. Whatever conversation that person and I had was strictly--would be between me and that person. He said he didn't want to know anything about it, but after I made the contact with this person I was to call him back and let him know if the contact had been made; and he then proceeded to write on the back of a card the name of the person I was to contact and the address.' Busscher then advised the decoy that he would have to be back for a court appearance on February 20, and wrote that date on a card and gave it to him.

Wood then left Busscher's office and tried to locate Kiah Lumpkins, whose name and address Busscher had written on the card. He could not be found. About 4:30 p. m. Wood telephoned Busscher's office and advised Busscher that he was not able to find Kiah Lumpkins and that he (Wood) had to leave town that evening. Busscher said, 'Well, try another location,' and gave Wood the location of Henry's Hickory Pit at the corner of Lake Street and Commercial Row, suggesting that Wood ask for Henry Lumpkins, Kiah's brother, who would deal with Wood on the same basis. Busscher also asked Wood to call him back after he had contacted Henry Lumpkins.

Wood proceeded directly to Henry's Hickory Pit. A man rose from his chair, approached Wood, and introduced...