State v. Sample
| Decision Date | 10 February 1998 |
| Docket Number | No. 96-2184-CR,96-2184-CR |
| Citation | 215 Wis.2d 487,573 N.W.2d 187 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jerry W. SAMPLE, Defendant-Appellant. d |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Gary Seeling and Seeling Law Offices, Waukesha and oral argument by Gary Seeling.
For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, Assistant Attorney General with whom on the brief was James E. Doyle, Assistant Attorney General.
The question certified to this court is whether Wis. Stat. § 939.31 1 codifies the "unilateral" or only the "bilateral" approach to the inchoate crime of conspiracy. The amended information alleged that the defendant, Jerry W. Sample, agreed or combined with another for the purpose of committing a crime, and that he knowingly and unlawfully possessed cocaine, a controlled substance, with intent to deliver to a prisoner within the precincts of a jail. The two people with whom Sample was alleged to have conspired were an undercover officer and a police informant. After a jury trial, Sample was convicted of possession with intent to deliver cocaine, distribution to a prisoner, and conspiracy, in violation of Wis. Stat. §§ 161.41(1m)(c)1, 161.465, and 939.31.
¶2 Sample asserts that Wis. Stat. § 939.31 criminalizes only bilateral conspiracy, that is, a conspiracy where two or more persons agree, with criminal intent, to commit a crime. The circuit court denied several motions made by Sample to dismiss the conspiracy charge and held that a person can enter into a conspiracy with an undercover agent and an informant to accomplish some common criminal objective. We conclude that a plain reading of Wis. Stat. § 939.31 embraces both unilateral and bilateral conspiracies, and therefore affirm the circuit court.
¶3 The defendant, Jerry W. Sample, was a correctional officer at the Waukesha County Jail. In July 1993 an inmate offered Sample $50 to get a pack of "cigarettes" from his "grandmother" in Milwaukee, and to bring it to him in the jail. After further conversation, Sample agreed, went to an address the inmate had given him, picked up the package and the $50, and delivered the package to the inmate.
¶4 Over the next several months, Sample brought similar packages to the inmate on approximately 15 occasions. At some point Sample understood that these packages actually contained marijuana or cocaine, and that the inmate was distributing these controlled substances to other inmates in the jail. Sample was typically paid $50 for picking up and delivering the packages. He was paid $100 when a package contained cocaine.
¶5 At some point in the fall of 1993, the Waukesha County Sheriff's Department received information that a prisoner housed in the federal block of the jail was receiving controlled substances from a Sheriff's Department employee. 2 Members of the Sheriff's Department traveled to interview several federal prisoners formerly housed at the Waukesha jail. Those interviews led the investigators to focus on a particular federal prisoner then housed in the Waukesha County Jail--the inmate with whom Sample had been working.
¶6 Before meeting with the inmate, Captain Lentz, the officer in charge of the investigation, met with the Assistant United States Attorney for the Eastern District to learn more about him. On December 2, 1993, Captain Lentz met with the inmate at the United States Attorney's office in Milwaukee, and promised the inmate that the State would not prosecute him for his involvement in distributing drugs in the Waukesha County Jail if he cooperated in the investigation. The inmate agreed to cooperate with authorities and identified Sample as the employee who was bringing in the controlled substances. 3
¶7 On December 8, 1993, Mr. Bernard J. Tesmer, of the Waukesha County Jail, watched a video surveillance monitor and observed the inmate and correctional officer Sample having some contact in one of the jail cell pods. Tesmer made a note of his observation. Tesmer testified that the inmate and Sample exchanged some sort of small package or envelope, but Tesmer did not know the contents of the package. Tesmer immediately contacted the jail captain in charge of the investigation. Later that same day, arrangements were made for an undercover officer to meet with Sample outside a restaurant, so that the undercover officer could give Sample $200. Sample never went to the restaurant that day.
¶8 On the following day, December 9, 1993, Waukesha authorities conducted a controlled "reverse sting" operation in which the inmate asked Sample to get a package of cocaine from the inmate's girlfriend and to bring it to the jail. As he was instructed by the inmate, Sample met the girlfriend, who was actually an undercover detective, and received a package of cocaine from her. When the undercover detective signaled that the transaction had taken place, other officers immediately moved in to arrest Sample. As one of the officers identified himself and ordered Sample not to move, Sample tossed the package of cocaine on the ground beside him.
¶9 Sample admitted in a police interview later that day that he had been bringing marijuana and cocaine to the inmate for several months. Sample was charged with one count of conspiracy to possess a controlled substance with intent to deliver to an inmate during late November and early December 1993. 4
¶10 Sample challenged the conspiracy charge in a motion to dismiss the information and renewed his argument several times before and during the trial, including a request for jury instructions encompassing the bilateral approach to conspiracy. Sample argued to the circuit court, citing State v. (Thomas C.) Smith, 189 Wis.2d 496, 501, 525 N.W.2d 264 (1995), that a conspiracy must involve at least two people, with each member subject to the same penalty for the conspiracy, or that each person has a stake in the outcome. Sample argued that Wisconsin's conspiracy statute is bilateral and that he could not be convicted of the crime because the other members of the conspiracy never intended that a crime be committed.
¶11 Ruling on Sample's motion to dismiss, the circuit court held that an undercover agent can enter into a conspiracy with another person in a mutual understanding to accomplish a common criminal objective, even though the two parties have different reasons in fact for doing so. The circuit court also rejected Sample's proposed jury instruction ruling that a conspiracy could occur even if the stakes were different for each of the actors. The circuit court then instructed the jury using the standard instruction Wis JICriminal 570. 5
¶12 On November 22, 1995, the jury found Sample guilty of conspiracy to possess a controlled substance with intent to deliver to an inmate, and he was sentenced to eight years in prison. Sample appealed, and we accepted certification 6 from the court of appeals. 7 Sample now asks this court to vacate his conviction and the sentence imposed, claiming that no crime of a one-person conspiracy exists under Wisconsin law. 8
¶13 The issue presented is one of statutory interpretation, a question of law which this court reviews de novo. See State v. Sostre, 198 Wis.2d 409, 414, 542 N.W.2d 774 (1996). We have often expressed the rules by which we interpret statutes:
The purpose of statutory interpretation is to discern the intent of the legislature. To do so, we first consider the language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that intent to the case at hand and do not look beyond the statutory language to ascertain its meaning.
State v. Setagord, 211 Wis.2d 397, 406, 565 N.W.2d 506 (1997) (citations omitted). By focusing on the intent of the legislature rather than our own policy views, we preserve principles of separation of powers.
¶14 Legislative intent is not always readily discernible, however. Our rules of interpretation also recognize that
[a] statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. However, a statute is not rendered ambiguous merely because the parties disagree as to its meaning. If a statute is ambiguous we look to the scope, history, context, subject matter, and object of the statute in order to ascertain legislative intent. However, resort to legislative history is not appropriate in the absence of a finding of ambiguity.
Setagord, 211 Wis.2d at 406, 565 N.W.2d 506 (citations omitted).
¶15 The parties in this case disagree as to the meaning of Wis. Stat. § 939.31. 9 Both Mr. Sample and the State contend that a plain reading of Wis. Stat. § 939.31 supports their interpretation of the statute. Under Sample's reading, the statute applies only to bilateral conspiracies. The State reads the statute to encompass both unilateral and bilateral conspiracies. 10 The circuit court concluded that the plain meaning of the statute permitted prosecution for a unilateral conspiracy.
¶16 Commentators have described the differences between unilateral and bilateral conspiracies. "Under a unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner." Note, Conspiracy: Statutory Reform Since the Model Penal Code, 75 Colum. L.Rev. 1122, 1136 (1975)[hereinafter Statutory Reform ]. The unilateral approach assesses the subjective, individual behavior of a defendant in determining guilt. See Dierdre A. Burgman, Unilateral Conspiracy: Three Critical Perspectives, 29 DePaul L.Rev. 75, 76 (1979-80). Under the unilateral approach, criminal conspiracy will lie even where one of two alleged "co-conspirators" is, unknown to the defendant, an undercover police agent or a police informant who merely feigns participation in the...
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...which is in turn defined by § 323.02(16) to include an "occurrence." The connection is not hard to follow.12 See State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998) ("For purposes of statutory interpretation or construction, the common and approved usage of words may be established......
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