State v. Grilli

• Decision Date: 09 May 1975
• Docket Number: No. 43549,43549
• Parties: STATE of Minnesota, Respondent, v. Anthony Charles GRILLI, Appellant.
• Court: Minnesota Supreme Court

Page 445

230 N.W.2d 445

304 Minn. 80

STATE of Minnesota, Respondent, v. Anthony Charles GRILLI, Appellant.

No. 43549.

Supreme Court of Minnesota.

May 9, 1975.

Syllasus by the Court

1. The act of telephoning the supplier of a controlled substance and arranging an illegal sale thereof to another person is a criminal act under Minn.St. 609.05, subd. 1, providing for criminal liability for the crimes of another.

2. Where evidence of other criminal drug-related activities of defendant had not been disclosed in a written Spreigl notice but the defendant was aware of the state's intent to use such evidence and did not object to its admission at trial, such evidence was harmless error, particularly in this case where evidence was properly admissible in rebuttal to the defense of entrapment. Similarly, other evidence of criminal conduct not disclosed by a Spreigl notice was properly admitted to rebut the entrapment defense.

3. The subjective test of the defense of entrapment as set forth in State v. Poague, 245 Minn. 438, 72 N.W.2d 620 (1955), and United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), is reaffirmed.

4. In the trial of all future cases where the accused raises the defense of entrapment, he shall elect prior to trial to waive a jury trial on that issue and have the trial court decide the issue as a bar to prosecution, or, in the alternative, to present entrapment as a defense to the jury in the traditional manner.

C. Paul Jones, Public Defender, Mark W. Peterson, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

George M. Scott, County Atty., Henry W. McCarr, Jr., First Asst. County Atty., Minneapolis, for Minn. County Atty.'s Assoc. & Minn. Urban County Atty's Bd., amicus curiae, seeking affirmance.

Reheard and considered en banc.

KELLY, Justice. ^*

Defendant appeals from a judgment of conviction for unlawful sale of a controlled substance under Minn.St.1969, § 618.02, a felony for which defendant received a sentence of 5 to 20 years. Defendant presents three issues for this court to decide: (1) Whether the evidence was sufficient to sustain the verdict of an unlawful sale of a controlled substance; (2) whether he was denied a fair trial as a result of the state's failure to give a 'Spreigl' notice regarding certain evidence, introduced on rebuttal, of criminal conduct not resulting in a criminal conviction; and (3) whether the conduct of the police officer involved constituted entrapment as a matter of law. For the reasons stated hereinafter, the case is remanded.

On November 8, 1970, Daryl Schmidt, an undercover narcotics agent for the St. Paul Police Department, entered Miller hospital under the name of David Shuck and by prior arrangement was placed in the bed next to defendant, a heart patient. Officer Schmidt testified he entered the hospital to attempt to purchase narcotics if they were being sold in the hospital, that he was not there to specifically induce a sale but to take the opportunity to purchase narcotics if such a sale were offered to him. On the first day he merely engaged in small talk with defendant about work, their illnesses, etc., in an attempt to develop a trust relationship. Defendant asked Officer Schmidt if he had tried marijuana or other narcotics. The officer responded he liked 'grass' but was afraid of LSD. Further conversation ensued during which defendant stated that he had connections and had access to marijuana, hashish, speed, opium, and acid and could get Schmidt some whenever he wanted. On the next day, defendant informed Schmidt that some employees in the hospital had access to drugs and that one of them, an orderly named Terry Larson, was 'working for' him. During this 2-day period, several persons came to visit defendant, who later identified these visitors as members of his 'family' and said that he took care of them and they would do anything for him. Among those persons who defendant told Schmidt were 'family' members, were Willie Jones and Terry Larson, the orderly. Officer Schmidt also testified that on November 9 defendant gave one of his visitors, Willie Jones, two codeine capsules which had been given to defendant by nurses.

On the third day, November 10, defendant introduced Schmidt to Terry Larson who defendant stated owed him some favors and could get narcotics. When Officer Schmidt checked out of the hospital that afternoon he hd not yet made a purchase, but expressed to defendant his hope that a sale of marijuana could be arranged. That evening, Officer Schmidt madea return visit to the hospital with some beer for defendant's consumption. Defendant at that time informed Schmidt he could get some 'Panama Red' (marijuana) and could arrange a sale to Schmidt. Defendant then made a telephone call to Willie Jones, telling Jones, 'I want you to treat him right, make such he gets the good stuff.' Schmidt and a fellow undercover police officer then contacted Jones at the location suggested by defendant and consummated a marijuana purchase.

Officer Schmidt again visited defendant on November 13, and defendant offered to sell him some grass. Terry Larson took Schmidt to the male employees' locker room of the hospital where Larson sold him a quantity of marijuana.

After the state rested, the defense, for the purpose of showing entrapment as a defense, elicited testimony from Grilli and a Sergeant Russell W. Bovee. Grilli testified that Terry Larson, the orderly, had given him a pipeful of marijuana and that he, Grilli, had emptied its contents in a plastic bag and gave it to his secret contact, Sergeant Bovee, a policeman. Grilli's version of the facts varied considerably from the testimony of Officer Schmidt, Grilli claiming that Schmidt brought up the subject of drugs and continually urged Grilli to refer him to others through whom he might obtain drugs.

Defendant called as a witness Sergeant Bovee who identified himself as a member of the Law Enforcement Aid Unit (L.E.A.U.), a division of the St. Paul Police Department distinct from the narcotics division in which Schmidt worked. Bovee's division worked independently of all of the units in the department. There was no communication maintained between the persons working in Bovee's unit and those working in the narcotics division undercover section, all communication being taken care of by the first line supervisors. Bovee testified that since some date early in November (apparently including November 8 through 13), defendant, while hospitalized, was serving as an informant for him for the purpose of ferreting out possible drug pushers in the hospital. Bovee further stated that early in November defendant telephoned him from the hospital; he responded by visiting defendant who 'informed (him) that there were parties and things taking place in the hospital in which employees over there were engaged in illegal use of narcotics.' Sergeant Bovee asked defendant to acquire a sample of the narcotics that were being sold. The next evening Sergeant Bovee returned and defendant gave him a plastic bag containing what appeared to be marijuana. Upon later analysis, it turned out to be 'very high-class, well-manicured marijuana,' what is commonly known as 'super pot.' Bovee asked defendant 'to find out all he could about the party that was supposedly selling this stuff or gave him this stuff, or whatever.' He received additional information thereafter from defendant concerning narcotics in the hospital but Sergeant Bovee's memory as to dates and time periods was uncertain. This time span apparently covered a period of more than 2 weeks. It should be noted that defendant admitted on cross-examination that he had not told Sergeant Bovee about Willie Jones.

The state granted immunity to Terry Larson. In rebuttal to the entrapment claim, Larson testified that in early November Grilli had a pipeful of marijuana in his hospital room and handed it to him and that he took a few puffs and gave it back. This was contrary to the defendant's testimony that Larson gave him a pipeful of marijuana and that he, Grilli, delivered the contents to Bovee. Larson also testified that defendant gave him three hand-rolled cigarettes filled with marijuana. He also corroborated Schmidt's testimony that Grilli told him to make the sale of marijuana to Schmidt. Moreover, he testified that the sale took place in Grilli's presence.

I. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to sustain the verdict of unlawful sale of a narcotic drug. Minn.St. 609.05 sets out the conduct which constitutes liability for the crimes of another. Subdivision 1 of § 609.05, reads:

'A person is criminally liable for a crime committed by another if he intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.'

If a person's conduct qualifies under the statute, he is accused as a principal to the crime even though in common-law parlance, his conduct is that of an accessory. See, State v. Briggs, 122 Minn. 493, 142 N.W. 823 (1913); State v. Parker, 282 Minn. 343, 164 N.W.2d 633 (1969). We hold that the evidence in this case which indicated that defendant telephoned a supplier of a controlled substance and arranged a sale thereof to Officer Schmidt was sufficient to support the verdict.

II. Adequacy of the 'Spreigl' notice

Defendant argues, in addition, that certain evidence of other drug-related offenses was improperly admitted at trial. We are presented with the question of whether the evidence was admissible without pretrial notice pursuant to State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). We held in Spreigl that where the state seeks to prove that an accused has been guilty of additional crimes and misconduct on other occasions, although such evidence is otherwise admissible under an...