State v. Golightly

• Decision Date: 07 May 1973
• Docket Number: No. KCD,KCD
• Citation: 495 S.W.2d 746
• Parties: STATE of Missouri, Respondent, v. Howard GOLIGHTLY, Appellant. 26173.
• Court: Missouri Court of Appeals

Page 746

495 S.W.2d 746

STATE of Missouri, Respondent, v. Howard GOLIGHTLY, Appellant.

No. KCD 26173.

Missouri Court of Appeals, Kansas City District.

May 7, 1973.

Motion for Rehearing and/or Transfer Denied June 4, 1973.

Application to Transfer Denied July 16, 1973.

Robert G. Duncan, Gladstone, for appellant; Duncan & Russell, Gladstone, of counsel.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Allan D. Seidel, Asst. Attys. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and SHANGLER, PRITCHARD, WASSERSTROM, SWOFFORD and SOMERVILLE, JJ.

PRITCHARD, Judge.

Appellant was convicted by the verdict of a jury of the commission of the crime of selling marijuana, and his punishment was by it assessed at 15 years imprisonment. Upon the original submission to this court, and a later resubmission to the full court at the April, 1973, Term, the main issues are whether appellant was entrapped into the commission of the offense as a matter of law and whether this court should adopt the so-called 'objective test' as opposed to the presently followed 'subjective test' of entrapment; and whether the trial court erred in sustaining the state's objection to appellant's argument to the jury that if the state had evidence of other sales by him, it could have brought it before the jury.

In June, 1971, Walter Leo Daffron, III, was given a special assignment to work with the Clay County Investigative Squad as an undercover agent in the area of drug abuse. He was put to work just outside the Gladstone area, where he had occasion to meet a woman named Carlyn Ogden who, in the next two or three months, introduced him to various people who were users, sellers and dealers in the area of narcotics and drugs. About the third week in June, Walter was introduced to appellant early one day. Appellant later arrived at the French Quarter Apartments on Orleans Circle in North Kansas City, but the group of five persons then moved to Carlyn's apartment in Gladstone, 'for the purpose of having a pot party.' According to Walter before appellant arrived in Gladstone, the five persons were sitting around a table and one of them was rolling handmade cigarettes from a green leafy material brought by one Richie who had what is referred to as a 'lid, about 16 ounces or so.' When appellant arrived he was handed a cigarette, took a drag off of it, then passed it on. He then produced a bag of his own and asked the people if they would like to smoke 'some real good stuff.'

Walter and his informant, Carlyn, met next with appellant at his apartment in the first week in July about 4:00 in the afternoon. While Walter talked to appellant about his stereo equipment, Carlyn went to the bathroom, and when she returned she asked appellant 'if he knew where we could score any dope or _ _.' Appellant answered that he did not have any stuff then but was expecting some in two or three weeks, and that he would let them know if he had a chance to procure any. On leaving Carlyn told appellant 'to be sure and get hold of us if he got hold of any good stuff.' There was a set of balance type scales, which measured from a tenth of a gram up to a pound, in appellant's apartment. Appellant then explained that it had been hard to procure any narcotics, marijuana or grass, in that 'things were tight' in Clay County since the last drug raids in May.

Carlyn called Walter on the evening of July 22, 1971, and told him she had set up a purchase of some marijuana, hashish, from the appellant. Walter then picked up Carlyn and drove to Macklin Park in North Kansas City where they waited for appellant to arrive. Appellant arrived in a sports car pulling up next to Walter's car where he was standing. This then transpired according to Walter: 'And he said, 'Are you the one that is here to score the stuff?' And I said, 'Yes.' And he said, 'How much do you want?' And I said, 'Two grams would be fine.' And he said, 'Well, I have got three for you.' I said to him 'Is it really good stuff?' And he said 'Yes'. I said, 'Okay. I will take all three.' And he said it was.$7.00 a gram. I handed him $21.00 and he handed me three tinfoil wrapped packages with a black material inside which I confiscated and kept.' The package was turned over by Walter to Captain Arthur Piburn the following day, and later Kaaren Huselton made chemical tests and determined that the substance was marijuana. Walter explained that hashish is made by boiling marijuana stems for about 36 hours until a resin is gotten out of them, which is boiled again and again until a concentrate, the residue, or precipitate, results. The residue is placed in small amounts on a perforated tinfoil on a pipe, lighted and inhaled by the user.

On cross-examination Walter testified that he was introduced to Carlyn who was supposed to go out and find people and to try to go out, make arrangements and set up business. He made about fifteen purchases from nine people to whom she introduced him. Carlyn was an informant and was a user of marijuana. It was stipulated that she was arrested and charged in May, 1971, with the crime of possession of marijuana, and the charge was dismissed on August 9, 1971, by the Clay County Prosecuting Attorney. At the time of trial Carlyn was apparently in Canada.

Appellant testified that he had known Carlyn for probably a year before July, 1971. He had purchased some marijuana or 'hash' from her and her friend, Marsh, and thereafter smoked some of it. Carlyn had invited appellant to her apartment where he met Walter who was known as 'Duck.' On July 22, 1971, the date appellant was charged with selling marijuana to Walter, Carlyn called him at his work at Harrigan Motors and told him she had a friend in town who was leaving for Denver, and he wanted to buy some hash or some form of marijuana. Carlyn wanted to know if appellant had any, and he told her he did not. She then called him about five times that day at work, finally saying to him, "Okay, I will take full responsibility for them. They are friends of mine."

On each call appellant told her he did not have any. Eventually, when he got home about 7:00, the phone rang again and Carlyn said, "One last time, do you have any? ' And I had a roommate at the time that didn't smoke. And I was afraid of getting caught with the stuff. I had three little things left, and I told her I would just rid of all of them. And she said 'All right. Charge him.$7.00 a package.' I said 'Okay.' And she said 'Meet us over at _ _' whatever that tennis court, whatever it was. Q. At Macklin Park, you mean? A. Yes, sir. Q. And did you meet them? A. Yes, sir.' As to his source of this particular marijuana or hashish, appellant further testified that Carlyn's friend, Marsh, brought it over and appellant bought it from Carlyn and Marsh. Appellant had never been convicted of anything other than traffic violations, and he agreed to make this sale for these reasons: 'A. I just wanted to get rid of the stuff. I just felt the penalty wasn't worth what everybody had done it for. Q. You mean possession of it? A. Yes, sir. Q. And would you have sold it except for Carlyn's phone calls? A. Probably not, no, sir.' It was brought out on cross-examination of appellant that he had the quarter of an ounce of hash for about two weeks, and he did not make a profit on it when he sold it. He denied recollection of Carlyn and Walter coming to his apartment asking if he knew 'where they could score some good stuff and telling them it was tight right now but you would have some coming in a couple of weeks.'

At the request of appellant, Instruction No. 5 was given: 'One of the issues in this case on which the state has the burden of proof is whether the defendant was lawfully (sic) entrapped into committing the offense submitted in Instruction No. 4. Even if you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in the conduct submitted in Instruction No. 4, nevertheless you are instructed that unless you also find and believe from the evidence beyond a reasonable doubt: First, that the defendant was ready, and willing to engage in the conduct, and Second, that the officer and informer only provided the defendant with the opportunity to engage in the conduct, you must find the defendant not guilty.' Appellant also requested Instruction No. 7 which was given: 'You are instructed that Carlyn Ogden, at the time and place of the alleged sale of marijuana, was acting as an agwent of the State of Missouri.'

The subjective test of entrapment of a defendant who has at least had the participating of government agents or informers in the commission of the offense charged has been followed in this state in State v. Van Regenmorter, 465 S.W.2d 613 (Mo.1971); and State v. Taylor, 375 S.W.2d 58 (Mo.1964). These recent Missouri cases have followed the doctrines of the majority opinions in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). In Sorrells the facts were that Martin, a prohibition agent, went with three residents of defendant's home county, whom defendant knew well, to defendant's home. The agent who was introduced as a tourist informed defendant that he was an ex-service man and that he and defendant had been in the same Division. The agent made two requests of defendant to get him some liquor, without result. Then, after a conversation with defendant and another ex-service man, a third request to defendant by the agent was successful. There was evidence from defendant's witnesses that he had been further opportuned by the agent, and the Government called witnesses who testified that defendant's general reputation was that of a rum-runner. The court noted that the evidence was sufficient to warrant a finding that the charged act was instigated by the agent; that the defendant had no previous disposition to commit it; but was lured to its commission by...