State v. Fitzgibbon

• Decision Date: 03 March 1973
• Docket Number: No. 46819,46819
• Citation: State v. Fitzgibbon, 211 Kan. 553, 507 P.2d 313 (Kan. 1973)
• Parties: The STATE of Kansas, Appellee, v. Frank FITZGIBBON, Appellant.
• Court: Kansas Supreme Court

Page 313

507 P.2d 313

211 Kan. 553

The STATE of Kansas, Appellee, v. Frank FITZGIBBON, Appellant.

No. 46819.

Supreme Court of Kansas.

March 3, 1973.

Syllabus by the Court

1. Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented as to whether the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts, (following State v. Reichenberger, 209 Kan. 210, 495 P.2d 919).

2. In a prosecution for the unlawful sale of a narcotic when the defense of procuring agent is properly raised the decision as to whether the accused merely acted as a procuring agent of the buyer or was a seller of the narcotic to the buyer is a question of fact for the jury to determine from the evidence, (following State v. Osburn, 211 Kan. 248, 505 P.2d 742).

3. Against a charge of selling narcotics the defenses of entrapment and procuring agent are not inconsistent.

4. Defense of entrapment is not generally available to defendant who denies that he committed the offense charged.

5. Where defendant admitted involvement in sale of narcotics but sought exoneration on ground that he was merely a procuring agent, defense of entrapment was available even though defendant denied the offense charged.

6. Examination of the record discloses sufficient evidence to justify submission of the defenses of entrapment and procuring agent to the jury, and the trial court erred in not instructing the jury on each of these defenses.

David J. Phillips, Deputy Dist. Defender, Topeka, argued the cause and was on the brief for appellant.

Donald P. Morrison, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Gene M. Olander, County Atty., were with him on the brief for appellee.

OWSLEY, Justice:

This is a direct appeal from a jury conviction of the defendant and his sentence to the custody of the director of penal institutions: (1) for a period of not less than one year nor more than ten years for the offense of selling marijuana under K.S.A. 65-2502; (2) for a period of not less than one year nor more than five years for the offense of conspiracy to sell heroin under K.S.A.1970 Supp. 21-3302 and K.S.A. 65-2502; and (3) for a period of not less than five years nor more than twenty years for the offense of selling LSD under K.S.A. 65-2602(1)(a).

The issues for review on appeal involve the failure of the trial court to instruct on the defense of entrapment and the defense of procuring agent.

The defense of entrapment can best be defined by reference to its codification in K.S.A.1972 Supp. 21-3210:

'A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

'(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or

'(b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.'

Procuring agent as a defense to a charge of selling narcotics is self- defining. Its use as a defense is explained in State v. Osburn, 211 Kan. 248, 505 P.2d 742, as follows:

'In a prosecution for the unlawful sale of a narcotic when the defense of 'procuring agent' is properly raised the decision as to whether the accused merely acted as a procuring agent of the buyer or was a seller of the narcotic to the buyer is a question of fact for the jury to determine from the evidence.' (Syl. 2.)

Each of these defenses has recently received exhaustive consideration by this court; the defense of entrapment in State v. Reichenberger, 209 Kan. 210, 495 P.2d 919, and the defense of procuring agent in State v. Osburn, supra. We stated in State v. Reichenberger, supra:

'Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented where the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts, . . ..' (Syl. 1.)

We pointed out in Reichenberger that the issue of entrapment was dependent on whether the defendant had a predisposition to commit the crime and that ready compliance by the defendant is generally, if not universally, accepted as evidence of predisposition. It is not our intention to repeat or expand on what was said in Reichenberger. It is our obligation to apply the rules of law there developed to the facts in this case.

A similar situation arises in connection with the defense of procuring agent. We will not repeat or expand the rules of law developed in Osburn. Again, it is our obligation to apply the rules of law there developed to the facts in this case. In Osburn, we stated that when the defense of procuring agent has properly been raised by the evidence and the request for an instruction has been made, the jury should be instructed that if they find the defendant was merely acting as a procuring agent for the purchaser and not for or as the seller of the drugs, the defendant is not guilty of sale.

On appellate review of the trial court's failure to instruct on certain defenses in a criminal action it is the role of this court to determine whether the record discloses any evidence considered in the light most favorable to the defendant, which would have justified the giving of the questioned instructions. (State v. Hamrick, 206 Kan. 543, 479 P.2d 854.) The record discloses the testimony of the defendant in narrative form as follows:

'. . . (O)n the night of December 21, 1970, he received a phone call from Kim Becker informing him that Mr. Biddle and someone else were coming over and that they were looking for drugs. Fitzgibbon further stated that approximately ten to fifteen minutes later, Mr. Biddle and Mr. Frison were at the door. Upon opening the door, Mr. Biddle asked Fitzgibbon if he had anything for sale. Fitzgibbon's response was, 'No, I didn't . . . that I had quit dealing. That the house had been raided and it was too hot and that I didn't want to keep any drugs at all in the house.' Fitzgibbon stated that Biddle then asked if Fitzgibbon knew any particular place at all where they could get something. According to Fitzgibbon, the conversation eventually got around to LSD and Biddle and Frison wanted to know if he could get some for them. Fitzgibbon stated that he told them that he did now know . . . that he would check. Fitzgibbon stated further that he then tried to use the phone but it did not work. Fitzgibbon stated that he and Biddle and Frison then left his house and proceeded to another place to get what Fitzgibbon thought was psilocybin. Before going into the house, Fitzgibbon was given ten dollars and told to buy the acid. Fitzgibbon further stated that upon returning to the car, he gave three tablets and the change to either Frison or Biddle.

'Fitzgibbon further testified that on the 24th of December, a Mr. Jones and Dan Biddle came to his house. Fitzgibbon recalled someone saying something about heroin and that he told them he did not have any there at the house . . . that he would call somebody and that maybe they could help them. Biddle and Jones' response was 'that would be fine, why don't you make the call.'

'Fitzgibbon further testified that on the night of December 28, 1970, Biddle and Frison had came over to his house and during their conversation, they remarked that the psilocybin that Fitzgibbon had bought for them last week was great. Then they . . . Frison and Biddle . . . asked Fitzgibbon if he had any marijuana for sale. Fitzgibbon replied that he did not have any and again that he had quit dealing and he did not want any drugs in the house at all. Fitzgibbon further testified that shortly thereafter, they went over to another house to buy some marijuana. Fitzgibbon said he was given $15.00 by Frison and Biddle and he and his girlfriend went up to the house and bought the marijuana. Upon their return to the car, they gave the marijuana to Biddle and Frison. At this point, they all returned to Fitzgibbon's house where they all smoked some of the marijuana.

'Frank Fitzgibbon further testified that on the 21st, 24th and 28th of December, 1970, it was not his intent to sell or help somebody else sell drugs to anyone. According to Fitzgibbon, he thought of it as helping someone out. 'I mean, like people have helped me like that before, and some people need drugs, you know."

An examination of the testimony of the undercover agents of the Topeka Police Department does not materially differ from the testimony of the defendant. The record discloses the defendant in this case testified in Osburn and the substance of his testimony was that he was at one time associated with Osburn in the sale of marijuana and speed during a period of April and May, 1970. He admitted he and Osburn were selling large quantities of drugs for a living at that time, but he had stopped dealing and he assumed Osburn had stoped dealing. The...