State v. Ostrand

• Decision Date: 26 June 1974
• Docket Number: No. 56698,56698
• Parties: STATE of Iowa, Appellee, v. John Raymond OSTRAND, Appellant.
• Court: Iowa Supreme Court

Page 509

219 N.W.2d 509

STATE of Iowa, Appellee, v. John Raymond OSTRAND, Appellant.

No. 56698.

Supreme Court of Iowa.

June 26, 1974.

James Q. Blomgren, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Considered en banc.

UHLENHOPP, Justice.

This criminal case involves an attempt by defendant John Raymond Ostrand to prove entrapment. The account of events he desired to place before the jury was strange, perhaps incredible, but we think he was entitled to present it for the jury's consideration. See Lufty v. United States, 198 F.2d 760, 762 (9 Cir.) ('The jurors, within their rights, could have believed appellant's testimony, however incredible it might appear to the trial court or to this court.').

Defendant and Michael Hagen were acquaintances who worked for the same employer. According to defendant, Hagen approached him several times about buying marijuana. The State's evidence showed Hagen told Iowa narcotics undercover agent Kenneth Arduser that defendant was supplying a large quantity of narcotics out of defendant's home.

On the evening of January 26, 1973, Arduser and Hagen went to defendant's home, where Arduser bought five lids (about five ounces) of marijuana from defendant for $65. When Arduser inquired about buying large quantities of marijuana, defendant stated he would be able to get them. Defendant asked if Arduser would be interested in buying large quantities of cocaine and stated he would also have a quantity of white cross pills (amphetamine) at a later date.

Arduser subsequently had the purchased material analyzed; it proved to be marijuana. Officers arrested defendant, the county attorney charged him with delivery of marijuana, and he stood trial.

During the State's evidence defendant's attorney, by various questions on cross-examination, tried to show the connection between Hagen and the officers, the functions of an informer, and related matters. The trial court sustained the prosecutor's objections to such questions. The status of Hagen as an informer and his relationship to the officers were thus left unclear.

Defendant took the stand in his defense and admitted the sale of the marijuana. The theory of his defense was entrapment. He desired to show Hagen previously said to him that Hagen was in trouble with the police and was working with them; that Hagen had 'to snitch' on some people to get himself free; and that Hagen asked defendant if he would help. Defendant's contention was that he thus believed the transaction of January 26 was part of that plan to aid the police, and that he made the sale because of Hagen's request. Defendant testified he thought he was not committing a crime by making the sale because he was participating in a police operation.

(How defendant thought he would be participating in a police operation by selling marijuana is a mystery, unless he thought the police were trying to catch Arduser, the purchaser. Presumably defendant did not then know that Arduser was an undercover agent.)

Defendant tried in various ways to prove his and Hagen's conversations that he contends induced the sale of the marijuana. The prosecutor objected on the ground of hearsay, and the trial court sustained the objections. At one point during defendant's testimony this occurred:

'Q. (by Mr. Allen Rauch, defense counsel): And why did you do this? Why did you sell this marijuana to him at this time? A. Back in--

Mr. Beck (prosecutor): Your Honor, I think that question goes to a self-serving opinion on the part of this witness. It doesn't go to any facts in the case.

The Court: It might go to intent so I'll overrule it.

A. (by defendant): Yes. Back just before Christmas Mike Hagen had told me he was--

Mr. Beck: Now, Your Honor, as to what Mike Hagen told this witness it is hearsay.

The Court: You can't go into a conversation. . . .

Mr. Rauch: Your Honor, I would like to see the Court and counsel concerning the hearsay objection because the conversation with Mike Hagen is very important at this point.

(The following record was made in chambers.)

Mr. Rauch: Your Honor, we are attempting to show that this one man by deceitful reputation (representation?) and inducement on the part of the informant, that he told him he was working with the police and he was doing this Hagen fellow a favor. Hagen came up to my man and he said, 'I am in trouble with the police. I have got to snitch on some people to get myself free to get the charges dropped on me. Would you be willing to help me if and when I need you?' And I don't know how else we are going to get this in. We have no defense, and State v. Davis (apparently the case in 175 N.W.2d 407 (Iowa)), an informant entrapment type decision, the Supreme Court didn't say directly, but they allowed that sort of thing in trial in (Judge) John Hughes' court, and I would further contend that the informant is a part of it the same as the police officer because he was working with the State.

I mean is it the Court's position we have no defense in this matter?

The Court: My position is whatever conversation he had with the informant would be hearsay.

The result was that defendant was unable to show Hagen's alleged statements which defendant contends induced the sale.

At trial, defendant had short hair and no beard. The State's witnesses testified that defendant had long hair and a beard at the time of the sale. During defendant's testimony, after he had admitted he sold the marijuana to Arduser, the prosecutor introduced a photograph of defendant taken at about the time of the sale, showing defendant with long hair and a beard. Defendant objected to the picture as irrelevant and immaterial. The court overruled the objection.

The jury found defendant guilty, the trial court sentenced him, and he appealed.

In this court, defendant makes two main contentions. First, the trial court should have admitted the testimony of Hagen's statements which defendant asserts induced the sale. Second, the trial court should have excluded the photograph.

I. Hagen's Statements. Two lines of cases exist relating to the sources of inducing statements. On the one hand, entrapment cannot result from inducements merely by some private individual or by an accomplice. State v. White, 260 Iowa 1000, 151 N.W.2d 552. Thus, if a private individual puts another person up to the commission of a crime, that other person cannot successfully urge entrapment even though the private individual informs law officers that the crime is going to be committed. State v. Davis, 175 N.W.2d 407 (Iowa); see State v. Lamar, 210 N.W.2d 600 (Iowa). On the other hand, if law officers use an individual to help them arrange the commission of a crime by another person, the officers cannot disclaim the inducements such individual offers in the course of his efforts for the officers. Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 852 ('The Government cannot disown Kalchinian (informer) and insist it is not responsible for his actions.'); Notaro v. United States, 363 F.2d 169 (9 Cir.); Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127.

Therefore, the first step of a defendant urging entrapment by inducements by an individual who is not himself an officer is to tie that individual to the officers--to show he was acting for them. Under familiar principles, a defendant cannot do this by out-of-court declarations of the individual himself. Martin v. Jaekel, 188 N.W.2d 331 (Iowa). Frequently, however, the State's own evidence shows that the individual was working with the officers throughout.

The evidence in the present case shows that Hagen was acting for the officers at the time of the purchase of the marijuana. Does sufficient evidence appear to generate a fact...