State v. Hecht

• Citation: 116 Wis.2d 605,342 N.W.2d 721
• Decision Date: 31 January 1984
• Docket Number: No. 82-769-CR,82-769-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Steven R. HECHT, Defendant-Appellant-Petitioner. *
• Court: Wisconsin Supreme Court

Page 721

342 N.W.2d 721

116 Wis.2d 605

STATE of Wisconsin, Plaintiff-Respondent, v. Steven R. HECHT, Defendant-Appellant-Petitioner.^*

No. 82-769-CR.

Supreme Court of Wisconsin.

Argued Dec. 1, 1983.

Decided Jan. 31, 1984.

Dale T. McKenna, Jefferson, argued, for defendant-appellant-petitioner; McKenna Law Offices, Jefferson, on brief.

Daniel J. O'Brien, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CECI, Justice.

This review concerns a published decision of the court of appeals ¹ which affirmed a conviction in the circuit court for Walworth county, Honorable John J. Byrnes, Circuit Judge. The defendant, Steven R. Hecht, was found guilty by a jury of being a party to the crime of possession of a controlled substance with the intent to deliver, contrary to sections 161.41(1m)(b) and 939.05(1), Stats. We affirm the court of appeals.

In September of 1978, undercover agent John Heidecker contacted defendant Hecht and Donald Grove. At the meeting, Heidecker asked Hecht if he had any drugs to sell. The defendant subsequently sold him twenty-five dollars worth of cocaine. The following day, Heidecker returned, attempting to make an additional purchase. Hecht stated that he had no cocaine because he had sold Heidecker all of the small amount that he had for his own personal use. Heidecker told the defendant that he had a friend who wanted to make a substantial cocaine purchase. The friend was William Malone, also an undercover agent. The defendant testified that Heidecker offered him $1,700 for contacting a supplier who could sell him this large quantity of the drug; although Heidecker's testimony was inconclusive on this point, he did testify that it was not his practice to offer money to anyone but the seller of the drug.

Hecht testified that he called Virgil Vollmer to ask if Vollmer knew a source who could supply a large quantity of cocaine. He also stated that he chose Vollmer because he thought Vollmer used cocaine and because he had previously received a small amount of cocaine from Vollmer.

On October 2, 1978, agent Heidecker telephoned Hecht. The defendant told Heidecker that Vollmer had indicated a price of $2,000 for the drug, which Vollmer claimed was set by his Madison source. Heidecker arranged to meet Hecht at the garage where the defendant worked that same evening. Heidecker and agent Malone met with the defendant and Grove briefly at the garage and agreed to follow the defendant's car to the Vollmer residence in Fort Atkinson, Wisconsin. After reaching the residence, Grove and Malone remained in the cars while Hecht and Heidecker entered the home. The defendant introduced Heidecker to Vollmer, and the three men went into the basement. There, Vollmer and Heidecker discussed the particulars of the cocaine deal in the defendant's presence. Vollmer told Heidecker that he expected a phone call from his supplier. Hecht testified that he did not know who the caller would be. Subsequently, the phone call came, and Vollmer told Heidecker that there could be no exchange that evening. Vollmer, however, offered to contact another source if Heidecker was willing to wait for another hour. The defendant also testified that he did not know the identity of this second potential source. After conferring with Malone, Heidecker declined making a deal with the second supplier that same evening.

On October 3, 1978, Heidecker again called the garage and spoke with both Hecht and Grove. Heidecker testified that both men stated that "they had put the deal together" and that Hecht related prices for five ounces of cocaine: $2,000 an ounce from one source and $2,200 an ounce from another. Heidecker and Malone later met Hecht at a tavern in Jefferson county, as they had previously agreed. Grove had been left out of the meeting because he appeared to Heidecker to be extremely nervous.

Once again, Heidecker and Malone followed the defendant to Vollmer's home. Again, Heidecker accompanied Hecht into the house while Malone remained behind in the car. Vollmer received a phone call at approximately 9:30 p.m. and told Heidecker that the cocaine was on the way. Vollmer and Heidecker went out to the car to speak with Malone, who showed them $10,000 in cash. The defendant remained inside the house during this discussion.

Vollmer and Heidecker then returned to the house, where a second phone call was received, confirming the fact that the exchange would indeed take place. The defendant was present during the phone conversation, but did not participate in the negotiations. Heidecker made arrangements through Vollmer with Vollmer's source. The price was set at $2,000 per ounce of cocaine. The defendant again testified that he did not know who the caller was. Heidecker left the house, told Malone of the scheduled meeting which was to take place at midnight in Whitewater, Wisconsin, and the two of them left until that time.

At midnight, Heidecker and Malone drove to a prearranged location in Whitewater. At the parking lot adjacent to the lot where the exchange was to take place, the agents met a car driven by Vollmer. Hecht was a passenger in Vollmer's car. As Heidecker approached Vollmer's car, Hecht got out and left the area. Heidecker testified that while at Vollmer's house, Vollmer had stated that his source did not want to see anyone other than Heidecker when the exchange was made. It was agreed, then, that Hecht would not be present when the sale was made.

Heidecker then entered Vollmer's car, and the two of them drove to the adjacent parking lot, followed by agent Malone. They were there approximately three to four minutes when Daniel Kohls approached Vollmer's car. He rapped on the window, entered the car, and produced two clear plastic bags containing cocaine. Heidecker left the bags on the car console, stating that he was going to get the money. He then left the car, entered Malone's car, and Malone gave a signal for the arrest. Agent Frank Wingert arrested Hecht a short time later in a nearby bar.

A jury trial was commenced on December 21, 1981. On December 22, the jury found the defendant guilty of being a party to the crime of possession of a controlled substance with the intent to deliver. The defendant appealed his conviction to the court of appeals, arguing that the mere "directing to or recommending of" a source of supply is not sufficient to sustain a conviction for being a party to a narcotics exchange. The court of appeals affirmed his conviction, however, stating that Hecht had involved himself much beyond the point of merely recommending or directing the buyers to a source of the drug. The court found that the jury could have reasonably concluded that the defendant was a party to an agreement to deliver drugs or that he acted to procure another to make such a delivery, because of his continued involvement in bringing about the sale.

This court, then, is faced with two issues on appeal. These issues are: (1) Should this court recognize a "procuring agent of the buyer" defense to the crime of party to the possession of a controlled substance with intent to deliver, contrary to sections 161.41(1m) and 939.05, Stats., and (2) was the evidence sufficient to sustain the defendant's conviction under these statutes?

I. SHOULD THE WISCONSIN COURTS RECOGNIZE A "PROCURING AGENT OF

THE BUYER" DEFENSE TO THE CRIME OF PARTY TO THE POSSESSION

OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER, CONTRARY

TO SECTIONS 161.41

(1m) AND 939.05, STATS.?

As was stated above, the defendant was convicted as a party to possession with intent to deliver a controlled substance, in violation of sections 161.41(1m) and 939.05, Stats. Section 161.41(1m) provides:

"Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture or deliver, a controlled substance...."

The defendant argues that his conviction under section 161.41(1m), Stats., as a party to the crime, cannot be sustained because his conduct falls squarely within that of the appellant described in United States v. Moses, 220 F.2d 166 (3rd Cir.1955). In Moses, the appellant introduced federal agents to a seller of drugs and also vouched for the agents' reliability. Id. at 168. She was not associated in any way with what occurred past this point. In that case, even though a sale of drugs eventually transpired, the court concluded that Moses' conduct was insufficient to convict her as party to the crime of selling, contrary to 18 U.S.C.A. section 2 and 26 U.S.C.A. section 2554. Therefore, Hecht argues that his conduct in the instant case is insufficient to sustain a conviction for party to the crime of possession with intent to deliver under the corresponding Wisconsin statutes.

However, it is clear to us that Moses and its precursor, United States v. Sawyer, 210 F.2d 169 (3rd Cir.1954), were decided prior to the 1970 enactment of the federal "Controlled Substances Act," which appears at 21 U.S.C.A. § 801 (West 1981). ² Before the enactment of the Controlled Substances Act, federal law recognized two separate and distinct offenses for transactions in controlled substances. The separate offenses consisted of buying and of selling. See, 26 U.S.C.A. sections 2553 and 2554 (I.R.C.1954). The Moses decision noted this distinction:

"Therefore, a participant in a particular transaction must be punished either as a seller or as a buyer. There is no general offense of participation in the transaction viewed as a whole."

United States v. Moses, 220 F.2d at 168. It is clear to us that Moses' conduct could not support a conviction for selling when she was acting on behalf of the buyers and when prior federal law did not recognize the offense of participation in the transaction. Of course, the Moses court did not address the issue of whether the appellant's conduct would have been sufficient to support a conviction for participation, had federal law recognized such an offense.

The ...