State v. Stock

• Citation: 463 S.W.2d 889
• Decision Date: 08 March 1971
• Docket Number: No. 2,No. 55056,55056,2
• Parties: STATE of Missouri, Respondent, v. Frederick Louis STOCK, Appellant
• Court: Missouri Supreme Court

Page 889

463 S.W.2d 889

STATE of Missouri, Respondent, v. Frederick Louis STOCK, Appellant.

No. 55056.

Supreme Court of Missouri, Division No. 2.

March 8, 1971.

John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.

Morris A. Shenker, Paul L. Dobberstein, Jr., Cordell Siegel, St. Louis, for appellant.

STOCKARD, Commissioner.

Appellant, Frederick Louis Stock, has appealed from the judgment entered pursuant to jury verdict wherein he was found guilty of making an unlawful sale of a narcotic drug, marijuana, and sentenced to imprisonment for a term of five years.

Appellant's first point is that the trial court erred in overruling his motion for judgment of acquittal 'for the reason that as a matter of law the evidence disclosed an unlawful entrapment.' This calls for a statement of the evidence pertaining to the circumstances of the sale.

From the evidence a jury reasonably could find that the following occurred. On June 20, 1968, between 5:00 and 5:30 p.m., Police Detective Robin Charles Robbins, an officer for the narcotics bureau of the St. Louis County Police Department, drove in an unmarked automobile to the parking lot of the Parkmoor Drive-In Restaurant. For the purpose of his work he was dressed in a sport shirt and shaggy trousers, and he had a mustache, a small goatee and longer than usual hair. Detective Robbins gave $15 to Bill Berry, a confidential informant, and asked him to give it to appellant 'for the purchase of some marijuana.' Appellant was nearby in the lot with a group of four or five persons. Berry gave the money to appellant, who placed it in his pocket, and shortly thereafter appellant went to Detective Robbins and told him that 'it would be awhile' because he, appellant, was waiting on a person by the name of Mike Brueckner, and that they were going to Brentwood 'to pick up a shipment' and would return. Shortly thereafter, Brueckner came to the parking lot on a motorcycle, and after talking to appellant, he and appellant left on their respective motorcycles, each with a passenger. Approximately one hour later, Brueckner and appellant returned to the parking lot. Brueckner was carrying his helmet upside down, and when Brueckner and appellant approached the Detective's automobile, he waw that in the helmet there were several packets containing a green vegetable substance. Brueckner said 'it wasn't very good stuff' but that Robbins could have his choice. Robbins told Brueckner to give him a packet, and Brueckner did so. He and appellant then left. Robbins sealed and marked the packet, and it was later examined and found to contain marijuana.

Defendant testified in his own behalf. He stated that he and his girl friend, whom he later married, went on his motorbike to the Parkmoor parking lot where their friends habitually congregated, and that Mike Brueckner arrived a few minutes later. He further testified that Bill Berry came over to him, and after appellant offered to let him take a ride on his motorbike and he declined, Berry said that he 'wanted (appellant) to get him some grass,' and during the discussion he pointed toward Robbins and said, 'this friend of mine over here is a rookie cop * * * and if I get him this grass * * * he could get out of some trouble that he was in.' After appellant told him he didn't know where to get 'grass,' Berry requested appellant to ask Mike Brueckner to get some 'grass' because 'we're not on too good of speaking terms.' Appellant then went to Brueckner and said, 'Mike, Bill wants some grass or something and why don't you talk to him?' He then heard Brueckner and Berry talking, and he heard 'something about $10 or $15' and 'better make it $15,' which he 'surmised' pertained to the purchase of marijuana. Brueckner then said that he had to get a bolt for his motorcycle, and he asked appellant to get $15 from Berry, which he did and gave the money to Brueckner. Appellant admitted on cross-examination that he 'would imagine' the money was to but marijuana, and that was 'what happened to it.' After appellant gave Brueckner the money, he then drove off, according to appellant, to get the bolt. It was then five-thirty o'clock, and appellant told Robbins that Brueckner had said he would be back at six o'clock. When Brueckner returned, he and appellant went for a ride on their motorbikes to a street near Clayton Road. Appellant waited on his motorbike while Brueckner went 'in there,' and after seven or eight minutes he returned and they rode back to the parking lot. Appellant did not 'see anything in his hands or anything.' At the parking lot, Brueckner went to Robbins and gave him something, but according to appellant, he did not see what it was.

Unlike State v. Taylor, Mo., 375 S.W.2d 58, the trial court in this case gave an instruction on the defense of unlawful entrapment, and there is no challenge to that instruction. Appellant's contention is that the evidence establishes unlawful entrapment as a matter of law. We do not agree.

Generally speaking, the defense of unlawful entrapment is not available to an accused charged with an unlawful sale of narcotics who denies that he made the sale because the defense is premised on the basis that he did make the sale. 33 A.L.R.2d at p. 910. But, disregarding the possible application of that rule to this case, we shall turn to the issue of unlawful entrapment.

In State v. Hammond, Mo., 447 S.W.2d 253, this court quoted with approval from State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, as follows: "Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, * * *." In Butler v. United States, 4 Cir., 191 F.2d 433, we find what we consider to be an informative and realistic statement concerning the issue of unlawful entrapment as follows: 'What do we mean by entrapment in the law? Of course, in every arrest there is a certain amount of entrapment in order to outwit the persons who are violating the law or who are about to violate the law. A certain amount of deception has to be exercised in most cases. The law does not forbid that. The type of entrapment that the law forbids is the entrapment which involves originating in the mind of someone a violation of the law, instead of inducing that person already having in mind to violate the law to violate it again. In other words, the question as to whether or not there has been the entrapment that is forbidden by the law depends upon whether or not what is done leading up to the violation amounted to putting it in the mind of a person who had no notion or intent of violating the law, who had no inclination heretofore to do it, and leading him into doing it for the first time. That is the entrapment that is forbidden.'

It has been repeatedly and almost universally held that where an informer or undercover agent has been given money by the police and instructed to make a 'buy' of narcotics from a person whom the officer had reason to believe was engaging in such activity, the defense of unlawful entrapment is not available; at least such facts do not constitute entrapment as a matter of law. See the numerous cases collected in the annotation entitled 'Entrapment to commit offense with respect to narcotics law.' 33 A.L.R.2d 883, l.c. 891 et seq. See also State v. Hammond, supra; State v. Taylor, Mo., 375 S.W.2d 58, and Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879, in which the facts are substantially similar to those in this case.

It may be that under the evidence in this case, particularly the testimony of appellant, a jury might reasonably find unlawful entrapment, but the evidence does not compel that finding. That issue was submitted to the jury and by its verdict it found that there was no unlawful entrapment. We find no merit to appellant's contention.

Appellant next contends that the trial court erred in failing to hold a hearing on the issue of his incompetency to stand trial. A statement of additional facts is necessary.

In the motion for new trial, counsel for appellant alleged that 'unbeknownst to his counsel' appellant had been for approximately a year prior to trial under the care of Dr. Wilbur H. Gearhart, a psychiatrist. Attached to the motion for new trial was a letter, addressed to the court, from Dr. Gearhart in which he stated that he first saw appellant on April 23, 1968, and that based upon his observation and treatment of appellant it was his opinion that on June 20, 1968 (the date of the offense) 'as a result of mental illness or defect, though most likely knowing the wrongfulness of his conduct, (appellant) was unable to appreciate the nature of his wrongful conduct and had considerable difficulty conforming his conduct to the requirements of the law.' The doctor further stated in the letter that he also was of the opinion that at the time of trial, 'as a result of mental disorder or defect (appellant) lacked the capacity to understand the proceedings or to assist in his own defense.' Appellant's counsel attached an affidavit that he had not been informed by anyone 'until after the case had gone to trial' that appellant had been or was then under the care of a psychiatrist, and that 'there was nothing in his demeanor or comments which alerted (him) to the possibility (that) he might be suffering from severe psychological disturbances,' except that at a conference immediately before trial appellant 'seemed unable to grasp the fact conviction was a distinct possibility and was disturbingly incapable of maintaining a...