State v. Farnsworth

• Decision Date: 21 July 1982
• Citation: 447 A.2d 1216
• Parties: STATE of Maine v. Wyman FARNSWORTH.
• Court: Maine Supreme Court

Page 1216

447 A.2d 1216

STATE of Maine v. Wyman FARNSWORTH.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1982.

Decided July 21, 1982.

Michael E. Povich, Dist. Atty., Genevieve C. Stetson, Asst. Dist. Atty. (orally), Machias, for plaintiff.

Silsby & Silsby, Anthony Beardsley (orally), Ellsworth, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

After a jury trial in Superior Court, Washington County, defendant Farnsworth was convicted of operating a motor vehicle on July 20, 1980, while under the influence of intoxicating liquor, 29 M.R.S.A. § 1312 (1978), as amended. We affirm the judgment of conviction.

Wyman Farnsworth frequently worked as a police informant, principally in matters of drug dealing and theft. Often he bought drugs at the instance of the police as part of his work. Farnsworth, Officer Goulart, a Washington County sheriff's deputy with whom he often worked, and Officer Crowley, Chief of the Jonesport Police, planned a "drug buy," to take place on July 20, 1980. Farnsworth did not meet Goulart in person, but did meet Crowley on July 19 and received from him twenty dollars with which to make the purchase. At the time of that meeting, Farnsworth was without a driver's license and was being chauffeured by his wife.

On July 20, Farnsworth telephoned Crowley several times to tell him that he could not make the purchase but would try later in the day. That evening, Farnsworth was driving down Basin Road near his home with a friend, one Alley, as passenger, when he met Deputy Sheriff Malcolm Worcester driving in the opposite direction in his police pickup. Worcester knew Farnsworth and was aware of his drinking habits but did not know he had been engaged by the police to make a purchase of drugs.

Worcester testified that he had gone to Basin Road in response to a radio report that a blue Plymouth had been forcing other cars off the road. The only blue Plymouth he had seen was Farnsworth's, sitting in Farnsworth's yard. After waiting up the road awhile, Worcester had started for home when he met Farnsworth driving his Plymouth. Because Farnsworth was on the wrong side of the road, Worcester was obliged to swerve to avoid being hit. Worcester turned around and followed Farnsworth down the road about a quarter of a mile, turning on his blue lights and sounding his siren. Farnsworth drove slowly, weaving from the left lane to the shoulder on the right. When Farnsworth stopped in front of his friend Alley's house or camp, Worcester walked up to the driver's side of the car and told Farnsworth to get out. Farnsworth asked why, and Worcester told him he was placing him under arrest for operating under the influence. When Worcester tried to put handcuffs on Farnsworth, a scuffle ensued. In response to Worcester's radio call for help, Officer Crowley came and handcuffed Farnsworth. Farnsworth's intoxication became increasingly obvious. Farnsworth was taken to the police station and given a "breathalyzer" test, which showed a high blood-alcohol level, namely, .19.

1. Entrapment and related arguments. The defendant requested the trial judge to instruct the jury that Farnsworth must be acquitted if found to have been driving under the influence as a result of entrapment or "unfair play" by the police. Farnsworth also requested a separate instruction that he must be acquitted if the jury found that the police led him to believe he had permission to drive or "had cover." The trial judge refused to give either instruction and instructed the jury that the police had no authority to grant anyone permission to drive under the influence. The issue on appeal is whether the asserted defenses were generated by the evidence. If not, the trial judge did not err in refusing to instruct the jury on them. State v. Carmichael, Me., 405 A.2d 732 (1979).

Testimony possibly relevant to those defenses was presented by Farnsworth and by Officers Goulart and Crowley. Farnsworth insisted at trial that the officers told him he would be "covered." This was Farnsworth's key word, often repeated. He testified that on many occasions when he worked for the police, they told him that he would be "covered." On July 19 and again on July 20, the day of the planned purchase, Crowley had told Farnsworth that he would be "covered" with respect to the transaction. Farnsworth did not testify that the officers told him he would be "covered" for any specific aspect of his conduct; rather, Farnsworth said he inferred that he would be covered for driving because the purchase was to be made at a gravel pit that he could reach only by car. He denied having been told by the police that he had to obey the law; on the other hand, he admitted that no officer ever told him that he could break any law. On other occasions the police had seen him driving without a license and had let him do it, and on this occasion, Farnsworth testified, they knew he had no operator's license.

The officers' testimony was somewhat different. When they told Farnsworth that he was "covered," they meant only that he would be supplied with the necessary funds and that he could safely possess drugs to the extent necessary in his work for the police. Crowley testified that he knew Farnsworth did not have a license and had warned him he could not drive; Goulart told Farnsworth that Farnsworth had no permission to break the law except to the extent necessary to do the job at hand, namely, buying drugs. Both Goulart and Crowley knew Farnsworth could not drive legally because of his lack of a license and that the purchase of drugs would take place some miles from his house. However, Goulart testified that Farnsworth had told him someone else would drive him, and Crowley had met Farnsworth the day before when Farnsworth was being chauffeured by his wife. Farnsworth's alcoholism was generally known in the area, but there was no evidence that either Crowley or Goulart had ever seen Farnsworth driving while visibly intoxicated.

Farnsworth does not argue that he ever received any specific authorization to drive while under the influence of alcohol. His argument is that the police knew he was a habitual drinker and would have to drive to make his "drug buy"; therefore, by approving the buy and telling him he would be "covered," the police approved his driving under the influence to get to the gravel pit where the purchase was to take place.

The evidence would not support a finding of entrapment, which has two elements. First, government action must have induced the defendant to commit the crime; second, the defendant must not have been predisposed to commit the crime. If either of those conditions is not met, the defense is unavailable. State v. McCrillis, Me., 376 A.2d 95 (1977); State v. Matheson, Me., 363 A.2d 716 (1976).

Even if everything Farnsworth said at trial is taken to be true and the police officers' statements that they told him not to break the law are rejected, the evidence shows at most that the officers told Farnsworth that he was "covered." They never told him that the coverage extended to driving while under the influence of alcohol.

In the ordinary sense of the word "induce" as it is used in the law relating to entrapment, the police certainly did not "induce" Farnsworth...