State v. Saternus
| Decision Date | 04 February 1986 |
| Docket Number | No. 84-768-CR,84-768-CR |
| Citation | 127 Wis.2d 460,381 N.W.2d 290 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Wade A. SATERNUS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Donna L. Hintze, Asst. State Public Defender, for defendant-appellant-petitioner.
Christopher G. Wren, Asst. Atty. Gen. (argued) for plaintiff-respondent; with Bronson C. La Follette, Atty. Gen., on brief.
This is a review of a decision of the court of appeals 1 which affirmed a judgment and order of the circuit court for Langlade county, James P. Jansen, circuit judge. The question presented is whether the entrapment instruction (Wis JI--Criminal 780) improperly placed the burden of persuasion upon the defendant to prove that he was induced to commit the crime. We conclude that the instruction was correct. We affirm the court of appeals decision.
The substantive crime of which Saternus was convicted was the delivery of a controlled substance, tetrahydro-cannabinols, in violation of sec. 161.41(1)(b) and sec. 161.14(4)(t), Stats. Saternus, after a verdict of guilty, was sentenced to a twenty-four-month term of imprisonment. Judgment of conviction was entered on September 12, 1983. A motion for a new trial was denied on April 9, 1984.
Only the common-law defense of entrapment was asserted at trial. Saternus took the stand at trial and admitted the delivery of approximately one ounce of marijuana (tetrahydro-cannabinols) to an undercover agent. It was his claim that the undercover agent induced him to sell the marijuana when he had no prior intention to sell and would not have sold it but for the conduct of the state's agent.
The pattern jury instruction on entrapment was given to the jury. While the record is not explicit on the origin of the request for the instruction, it is implicit in the record and arguments of counsel that the defendant not only did not object to the instruction, but asked for the instruction in the form given. On appeal to the court of appeals and on this review, it is this instruction, Wis JI--Criminal 780, 2 that is challenged. Wis JI--Criminal 780 was tailored by the judge to conform to the circumstances of the case. No objection is made to the modification. It is the basic instruction that is questioned.
Although the state on this review continues to assert that the right to object to the instruction was waived, this court nevertheless has concluded that review is appropriate, because the correctness of the jury instruction now in use by trial courts is a matter for our concern in the administration of courts and is within this court's "superintending and administrative authority over all courts." Wis.Const. art. VII, sec. 3. The public defender asserts that the instructions as given improperly placed a burden of persuasion on the defendant and that this improperly allocated burden constituted plain error and, hence, is cognizable by this court whether or not objection was made. 3
The record reveals that the Langlade county sheriff's department was engaged in an investigation of drug sales. On December 3, 1982, the activities of the investigators focused on Rascal's Bar in Antigo. A trained undercover officer from Marathon county assisted the Langlade authorities. He was accompanied by a woman informant, Jane Husnick, who was on probation for a drug violation in Langlade county. It was the conduct of Husnick acting as an undercover agent that the defendant asserts constituted the inducement for him to commit the crime when he was not predisposed to do so. The record shows that Husnick had volunteered "to turn informant and would give names and probably set up some purchases."
At trial it was revealed that, in exchange for her informant activities, Husnick was given spending money. Also, a charge of drunk driving was reduced to a lesser charge and the forfeiture imposed was paid by the sheriff's department.
Deputy Kujawa, from Marathon county, as the undercover agent, worked with Jane Husnick on the night in question at Rascal's Bar in Antigo. Wade Saternus was not the intended target of the investigation. The target suspect was not at the bar that night. Husnick introduced Saternus to Kujawa, telling Saternus that Kujawa was her fiance.
When Husnick was called as a witness by the defendant, she stated that she had known Saternus since their freshman year at the Antigo High School. She said that she helped the investigation because she was concerned with the problems that drug use caused, but she also said:
"[T]here was a statement made at one time and that would be--I'm on probation and that if things worked out the way they were supposed to and if as many people as fifteen, some of my restitution would be paid."
Husnick also testified that, at an earlier time, she had called Saternus asking if he had pot to sell. She said he answered, "No." Saternus' counsel asked her, "[On the night of the sale at Rascal's Bar] did you tell him you were just in Rhinelander to see some relative that was sick?" She responded, "I could have said that."
When Saternus was called as a witness, he admitted that he sold a small packet of marijuana to Jane and her fiance. He said that, when Jane first asked him at Rascal's Bar if he knew where she could get some pot, he said, "No." He stated that Jane later that evening came up to him and said:
Saternus testified that he told Husnick he had "some of my own that I could sell but I'd have to get what I paid for it." He stated that he sold the pot only because Jane was a friend and "They were going to lose a family member and they seemed sad."
Saternus testified that, on the night of the sale at Rascal's Bar, Jane was "pestering the heck out of me ... [h]anging all over me, arms around me, trying to kiss me and stuff, you know," but that he only "bit" after she gave him the Rhinelander Hospital story.
He testified that he had never sold marijuana before and that, later when Jane called him at home asking to buy more, he said that he did not have any more and did not want to be bothered again. 4 Thus, the defendant asserts, he was entrapped because he was "induced" by Husnick to commit a crime when he was not predisposed to do so.
The jury returned a verdict of guilty. The court of appeals affirmed.
On this review the defendant focuses his attack upon the pattern entrapment instruction Wis JI--780. 5 The principal claim is that the instruction impermissibly, under state law, places a burden of persuasion on the defendant to show that he was induced to commit the crime. Other subsidiary arguments are also put forward. We conclude that none of them warrants a reversal of the court of appeals decision.
A brief survey of the Wisconsin case law of entrapment places the problems posed on this review in perspective. Topolewski v. State, 130 Wis. 244, 109 N.W. 1037 (1906), has sometimes been referred to by this court as Wisconsin's first recognition of entrapment as a common-law defense. See, Hawthorne v. State, 43 Wis.2d 82, 86, 168 N.W.2d 85 (1969). However, as the earlier case of State v. Hochman, 2 Wis.2d 410, 86 N.W.2d 446 (1957), recognized, Topolewski was a "no crime" case, because the entry into the premises had been with the consent of the owner; hence, an essential element of burglary, entry without consent, was absent. Thus, Topolewski was not an entrapment case in the sense presently understood, where all elements of the crime have been proved but for policy reasons the defendant is to be exonerated.
State ex rel. Kowaleski v. Kubiak, 256 Wis. 518, 520, 41 N.W.2d 605 (1950), makes clear that entrapment cannot be a dispositive issue unless all elements of the crime are proved, i.e., "defendant ... has done every act essential to the completion of the offense." See, Piper v. State, 202 Wis. 58, 231 N.W. 162 (1930).
The judge's instructions to the jury in the instant case correctly reflected this rule when he stated, prior to giving the jury the instruction particularly pertinent to entrapment:
Thus, it is important to note that Wis JI--780 is triggered only when the jury has first concluded the elements of the crime have been proved beyond a reasonable doubt--that there is a completed crime. If the jury concludes that the elements of the crime have not been proved beyond a reasonable doubt, the entrapment defense never becomes relevant and the jury should return a not guilty verdict because of insufficiency of proof of the elements of the crime. Entrapment is an affirmative defense which, for public policy considerations, comes into play to exonerate an accused only in circumstances where the accused would otherwise be found guilty because all elements of the crime have been proved beyond a reasonable doubt. The order of giving the instructions to the jury reflects the suggestion of the criminal law instructions committee that the elements of the crime be placed before the jury for consideration prior to their consideration of any asserted defenses. (See Wis JI--Criminal SM-5)
A series of cases of this court define the entrapment defense in Wisconsin and discuss its components. Kubiak, supra, 256 Wis. at 520, 41 N.W. 162, refers to Piper, supra, for a statement of the proposition that entrapment is not available to a defendant where the "intent to commit a crime originates in the mind of a defendant." State v. Hochman, supra, 2 Wis.2d at 414, additionally explained this court's view of the entrapment defense when it...
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