State v. Perez
| Citation | 534 S.W.2d 542 |
| Decision Date | 09 February 1976 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Octaviano J. PEREZ, Appellant. 27748. |
| Court | Court of Appeal of Missouri (US) |
Robert G. Duncan and William E. Shull, Kansas City, for appellant; Duncan & Russell, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.
Appellant was convicted by the verdict of a jury in a second trial of the commission of the offenses of the sale of the controlled substances, secobarbital and pentobarbital, as charged in separate counts, to James W. Eapman and Robert T. Lawton, respectively. The jury was unable to agree upon the punishment, and the court therefore sentenced appellant to seven years imprisonment in the Department of Corrections upon each count of the indictment, to run concurrently.
Two points are made on this appeal. First, that because there was a variance in the charges and proof in the first trial (the charge in Count I was a sale of secobarbital to Robert T. Lawton, and in Count II, a sale of pentobarbital to James W. Eapman, when the proof showed the Count I sale was made to Eapman and the Count II sale was made to Lawton), a new trial was granted upon the sustaining of appellant's motion, therefore, the new trial, as claimed by appellant, subjected him to double jeopardy. Secondly, appellant claims that his two requested instructions on entrapment in the sales of the controlled substances as to each count should have been given because they were supported by the evidence.
Lawton was a Special Agent for the Federal Drug Enforcement Administration on May 21, 1973. His duties were to make undercover purchases of narcotics, make arrests and to do surveillance. In order to make an undercover purchase of drugs or narcotics he would be introduced to a dealer by a 'cooperating individual' who knew the dealer. At about 5:30 p.m., on May 21, 1973, Lawton met appellant in Apartment No. 11, 16 West 37th Street, Kansas City, Missouri. Lawton and agent Eapman had made prior arrangements with the cooperating individual, Bob Smith, to be at the apartment at that time. When Lawton knocked at the apartment door, Smith opened it and Lawton walked in. There were three people in the room, Smith, appellant and one Kevin Herron. Eapman was conducting a surveillance of the apartment building at the time. Lawton recognized appellant from having seen him about a year before when appellant was working as a cooperating individual for another agent, Mike Henkel, of the Drug Enforcement Administration, and Lawton 'conducted surveillance on one of the deals that Octaviano Perez attempted to do.' He may have seen appellant one time after that. Lawton took Smith back into the kitchen and told him he knew appellant, and to go outside and tell Agent Eapman that if he did not know appellant to come upstairs. Before Smith left, he told appellant and Herron that Lawton wanted 100 'yellows' or Nembutals, and on Lawton sitting down, Herron counted out 100 yellow capsules, put them in a Marlboro cigarette box and handed them to Lawton. The latter asked them how much money they wanted, and appellant told him $35, so Lawton handed that amount to appellant. In a minute or two Smith and Eapman came in and Lawton told Eapman he had made a 'buy'. They left and went to a filling station where Eapman called the Police Department. It was then decided that they would attempt to make a second purchase of drugs. Accordingly, about 6:30 p.m. of the same day, the three went back to the apartment and met appellant and Herron coming out. Eapman engaged appellant in a conversation and the five went back into the apartment where appellant took a large plastic bottle out of his pants pocket, handed it to Herron and told him to count out 100 'reds', or Seconals. Herron did so, handed them to Eapman who, in turn, handed him $35. Herron then handed the money to appellant.
Appellant, in addition to having been a cooperating individual for Mike Henkel, had an 'SL' number with the federal agency, which number was given informers or confidential employees for their use so their names could be concealed. Persons who are cooperating individuals were not sent out on their own either to deal or purchase drugs for themselves--the agency policy prohibited that, and if it happened a case would be made on the individual. Appellant was arrested some seven months after the sale because the agents did not want to reveal the 'cover' for the cooperating individual, Smith.
Agent Eapman was employed by the Narcotics Section of the Kansas City Police Department, but was on loan to the federal agency. He corroborated Lawton's testimony of the sale by appellant of pentobarbital. After they left the apartment, Eapman gave appellant and Herron a ride to the Commodore Hotel, during which appellant told Eapman he could get any type of pills he wanted, barbituates and amphetamines, and that he sometimes had heroin. Eapman was unaware, on May 21, 1973, that appellant had worked as an informer for the Kansas City Police Department, or other agencies, but he did learn that later.
Appellant testified that he talked to Mike Henkel of the Drug Enforcement Agency, and in working for him he tried twice to set up deals, sales, and was successful one time. In September, 1972, appellant started working as an informer for Frank Etzenhouser of the Tactical Unit, Kansas City, Missouri Police Department, having been approached by Etzenhouser after being placed on probation from a plea of guilty to uttering a bad check. As an informer, appellant was to get information and was instructed, according to his testimony: Appellant participated in two particular burglaries, advising the police department in advance thereof. On July 10, 1973, appellan...
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