State v. Reichenberger
| Decision Date | 08 April 1972 |
| Docket Number | No. 46542,46542 |
| Citation | 495 P.2d 919,209 Kan. 210 |
| Parties | STATE of Kansas, Appellee, v. Stephen P. REICHENBERGER, and Gary D. Fouch, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where some evidence is offered by a defendant in support of the defense of entrapment and a conflict is presented where the intent to engage in an enterprise involving narcotics originated in the mind of defendant or was instigated by officers or agents of the state, the issue becomes a question for the trier of facts, overruling State v. Driscoll, 119 Kan. 473, 239 P. 1105, and all decisions adhering thereto insofar as they are inconsistent herewith.
2. Although evidence of a defendant's prior connection with narcotics is admissible in a narcotic prosecution to rebut a proffered defense of entrapment, it is not the only means available to the prosecution to establish predisposition on the part of defendant.
3. In considering facts relative to the issue of entrapment it is essential to distinguish between a trap set for the unwary criminal and a trap set to ensnare the innocent and law abiding citizen into the commission of a crime.
4. In a criminal prosecution where entrapment is claimed as a defense based on the solicitation of a law enforcement officer or cooperating agent and the prosecution submits no evidence of prior convictions previous criminal activity or design on the part of defendant, the question raised is whether the officer or undercover agent employed methods of persuasion or inducement which create a substantial risk that the offense in question will be committed by persons other than those who are ready to commit it.
5. In a prosecution for the possession and sale of marijuana under the provisions of the Uniform Narcotic Drug Act, the record is examined and it is held: (1) The testimony of defendants in support of the defense of entrapment presented a question for the trier of facts. (2) The judgment of the trial court convicting defendants of the possession of marijuana is supported by the evidence and is affirmed. (3) The judgment of the trial court convicting defendants for the sale of marijuana is set aside for reasons appearing in the opinion.
G. Edmond Hayes, Wichita, argued the cause and was on the brief for defendants.
Mark W. Anderson, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and Barry Arbuckle, Deputy County Atty., were with him on the brief for appellee.
Defendants appeal from felony convictions for possession and sale of marijuana in violation of the Uniform Narcotic Drug Act (K.S.A. 65-2501, et seq.). In a trial to the court the defense of entrapment was asserted by each defendant. The trial court's adverse finding is the subject of attack in this appeal. Defendants contend the evidence established entrapment as a matter of law.
The information was filed in two counts. Defendant Fouch was charged individually in count one and jointly with defendant Reichenberger in count two. The information was filed on May 14, 1970, and the offenses charged were alleged to have occurred on April 4, 1970.
Count one concerned actions of defendant Fouch occurring outside the Odessa Club at Second Street and Hydraulic in Wichita and count two concerned actions of both defendants occurring at the Quality Chevrolet Parking Lot at 1620 East Douglas in Wichita.
Attorney Russell Shultz represented both defendants in the trial below. There was no request for severance and the defendants were tried jointly without objection. A jury was waived and the case was tried to the court on September 10, 1970. The journal entry, approved by counsel for all parties, relates the trial proceedings pertinent to the issue on appeal as follows:
'The defendants then presented their evidence, both defendants having testified in person.
'After argument, the Court found that both defendants were guilty of possession and sale of marijuana as charged.'
Each defendant was sentenced to a term of not more than seven years pursuant to K.S.A.1971 Supp. 65-2519a. The defendants were then released on their own recognizance conditioned that their appeals be prosecuted in good faith and with diligence.
In his argument to the court below, Mr. Shultz conceded the defense of entrapment presupposes commission of the offenses; likewise, defendants' counsel on appeal challenges only the trial court's adverse finding on the defense of entrapment. Since the fact of the commission of the offenses is not challenged, the state's evidence may be briefly summarized.
The state's evidence consisted primarily of the testimony of Charles E. Hastings, an officer assigned to the vice squad of the Wichita Police Department. On the evening of April 4, 1970, Hastings met with several officers, including Rick Palone and Charlotte McPhetters, at the Sedgwick County Sheriff's office. Palone was described as a commissioned buyer, employed by the sheriff. His main duties were to buy narcotics for the sheriff in an undercover capacity. Apparently, Charlotte McPhetters was also an undercover agent for the sheriff.
Hastings searched Palone for money and drugs, finding none, Hastings then gave Palone money consisting of bills, the serial numbers of which had been previously recorded by Hastings.
By prearrangement, Palone and McPhetters drove in Palone's Camaro automobile to Second Street and Hydraulic and parked near the Odessa Club. Hastings followed and parked his automobile across the street from the Odessa Club in a position where he could observe Palone and McPhetters seated in Palone's automobile. Hastings' testimony established the first contact between defendants and Palone and McPhetters which was arranged by a 'thin bespectacled man', who was later identified by defendants as a person going by the name of John Nichols, who was reputed to be an informer or police undercover agent. Defendants delivered a packet of marijuana to Palone and were paid $105 in marked money; $100 of which was found on defendant Fouch after his arrest. The other $5 was said to have been given to Nichols.
A second purchase was arranged between defendants and Palone and McPhetters with delivery to be made at the Quality Chevrolet Parking Lot at 1620 East Douglas. Hastings and Dick Fent, an officer of the Sheriff's Department, accompanied Palone and McPhetters in Palone's automobile. When they arrived at the Quality Parking Lot, Hastings and Fent crouched down in the back seat. Soon after the Palone automobile arrived at the parking lot an automobile drove alongside, the two defendants got out and approached the Palone automobile; at this point Hastings and Fent arose from the back seat, exited the Palone automobile, and placed both defendants under arrest. Fouch was seen to drop a foil packet and kick it beneath the automobile. It was retrieved and proved to be marijuana. Fouch was searched and $100 of the marked money was found on his person. Reichenberger was searched and a hashish pipe and a foil packet of marijuana were found on his person.
The events surrounding the first contact with Nichols inside the Odessa Club and the later solicitation by Palone are established by the testimony of defendants. The state offered no evidence to refute the testimony of defendants, thus we take their accounting as accurate.
Fourch testified that he did not use marijuana and normally did not traffic in it. He described the approach by Nichols in his direct examination in this manner:
'Q. How did it happen you came in possession of it at that time?
'A. Well, this Johnny Nichols was inside the club. He went around asking people if they had marijuana or knew where he could get some because he had a friend who had asked him to get him some, which later turned out to be Rick Palone over at the Sheriff's Department.
'Q. Did Mr. Nichols ask you if you had any?
'A. Yes.
'Q. Did you have any?
'A. No, sir.
'Q. What happened then?
'A. He asked us if we could get some. I said we might be able to.
'Q. When you say we, who do you refer to as 'we'?
'A. $75.00
'
On cross-examination Fouch testified:
'
persuasiveness in talking to you?
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