State v. Van Winkle

• Decision Date: 10 December 1993
• Docket Number: No. 68816,68816
• Citation: State v. Van Winkle, 864 P.2d 729, 254 Kan. 214 (Kan. 1993)
• Parties: STATE of Kansas, Appellee, v. Gloria L. VAN WINKLE, Appellant.
• Court: Kansas Supreme Court

Page 729

864 P.2d 729

254 Kan. 214

STATE of Kansas, Appellee, v. Gloria L. VAN WINKLE, Appellant.

No. 68816.

Supreme Court of Kansas.

Dec. 10, 1993.

Syllabus by the Court

1. A defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. Governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the Due Process Clause of the 5th Amendment of the United States Constitution.

2. Whether the government's conduct is sufficiently outrageous is a question of law and depends on four factors: the type of criminal activity involved, whether the activity is preexisting or instead "instigated" by the government, whether the government is directing the activity or merely participating in it, and the causal link between the government's conduct and the acts of the defendant.

3. The use of informants to infiltrate criminal enterprises is a recognized and permissible means of investigation by the government. This proposition remains true even though an informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise.

4. A person who is predisposed to commit a particular crime cannot claim a denial of due process of law by abusive government conduct.

5. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Thomas Jacquinot, Sp. Appellate Defender, Lawrence, argued the cause, and Monica Guerrero, Student Intern, and Steven R. Zinn, Deputy Appellate Defender, Topeka, were with him on the brief, for appellant.

Thomas P. Alongi, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice:

Defendant appeals her conviction of possession of cocaine, K.S.A. 65-4127a, claiming (1) the conduct of the police was so outrageous that it constituted a violation of due process and (2) there was insufficient evidence to convict.

We recently recognized that law enforcement conduct may be so outrageous as to violate the Due Process Clause. State v. Nelson, 249 Kan. 689, 822 P.2d 53 (1991). If the conduct of government agents is not outrageous, the defense of entrapment may be available. Because of the length of the facts and their application to the defense of outrageous conduct of government officials, we will first review the defense.

OUTRAGEOUS GOVERNMENT CONDUCT

The defense of outrageous government conduct is an offshoot of entrapment. Nelson, 249 Kan. at 692, 822 P.2d 53. Entrapment has a long history in Kansas, first in common law, and then under the statute adopted in 1970. State v. Rogers, 234 Kan. 629, 632, 675 P.2d 71 (1984). The statute, K.S.A. 21-3210, provides:

"Entrapment. A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:

(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a coconspirator; or

(b) The crime was of a type which is likely to occur and recur in the course of such person's business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful."

The defense of entrapment arises when a law enforcement officer, or someone acting on the officer's behalf, generates in the mind of a person who is innocent of any criminal purpose the original intent or idea to commit a crime which the person had not contemplated and would not have committed but for the inducement of the law officer. A defendant can rely on the defense of entrapment when the defendant is induced to commit a crime which the defendant had no previous intention of committing, but the defendant cannot rely on the defense or obtain an instruction on entrapment when the evidence establishes that the defendant had a previous intention of committing the crime and was merely afforded an opportunity by a law officer to complete it. State v. Jordan, 220 Kan. 110, Syl. pp 7, 8, 551 P.2d 773 (1976).

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the United States Supreme Court discussed the law of entrapment and a new defense founded upon an intolerable degree of governmental participation in the criminal enterprise, i.e., outrageous government conduct. Russell was convicted in the United States District Court of the unlawful manufacture and sale of methamphetamine. Russell's defense was that he was entrapped into committing the offenses by government undercover agents who supplied him the essential ingredient to manufacture methamphetamine. On appeal, the United States Court of Appeals for the Ninth Circuit reversed the conviction for the reason that the government had supplied an essential chemical for manufacturing the drug. 459 F.2d 671 (9th Cir.1972). The Ninth Circuit concluded that as a matter of law "a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise." 459 F.2d at 673. The United States Supreme Court granted certiorari.

The Supreme Court noted that the Ninth Circuit had in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been "an intolerable degree of governmental participation in the criminal enterprise." The Ninth Circuit had decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense. The Supreme Court observed that this new defense was held to rest on either of two alternative theories. One theory is based on two lower court decisions which had found entrapment, regardless of predisposition, whenever the government supplies contraband to the defendants. United States v. Bueno, 447 F.2d 903 (5th Cir.1971); United States v. Chisum, 312 F.Supp. 1307 (C.D.Cal.1970). The second theory, a non-entrapment rationale, is based on a Ninth Circuit decision that reversed a conviction because a government investigator was so enmeshed in the criminal activity that the prosecution of the defendants was held to be repugnant to the American criminal justice system. Greene v. United States, 454 F.2d 783 (9th Cir.1971). The Supreme Court noted that the Ninth Circuit held that these two rationales constitute the same defense, and that only the label distinguishes them. In any event, the Ninth Circuit held that "[b]oth theories are premised on fundamental concepts of due process and evince the reluctance of the judiciary to countenance 'overzealous law enforcement.' " 459 F.2d at 674 (quoting Sherman v. United States 356 U.S. 369, 381, 78 S.Ct. 819, 2 L.Ed.2d 848 [1958].

In Nelson, we held that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. We also stated that governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the Due Process Clause of the 5th Amendment of the United States Constitution. State v. Nelson, 249 Kan. 689, Syl. pp 2, 3, 822 P.2d 53.

THE FACTS

There were two versions of the events presented at trial. The State's witness, Rick Crowell, who was on parole for a theft conviction, was approached regarding a marijuana deal. Crowell then called the Crimestoppers phone number and agreed to supply information to the police. Crowell testified he had been working for the Junction City Police Department as a paid confidential informant for about three months. Detective Jackson supervised Crowell. Without giving specific details, Jackson opined that Crowell was a reliable informant.

Crowell had been living at the Rambler Motel about one month when Gloria Van Winkle moved into the motel. Crowell met Van Winkle the day she moved in and saw her frequently between the week she moved in and the date of her arrest. Crowell observed her smoke cocaine on a daily basis and would go with her when she would purchase it. When Crowell told Van Winkle he had dealt drugs in Texas, she expressed an interest in dealing drugs in Junction City.

Crowell called the police department and told them Van Winkle wanted to buy cocaine. This was the first time Crowell had mentioned Van Winkle's name to the police. Officer Story testified that through other informants, whom he was unable to name, the police had been told Van Winkle was using drugs. Story knew Van Winkle and knew that she had previous drug-related convictions. The police were interested in Van Winkle because she was a repeat offender and they believed she was connected with major drug dealers.

Story told Crowell to offer to sell Van Winkle an ounce of cocaine for $1,200. When Crowell offered to sell her the ounce of cocaine, Van Winkle told Crowell she could only afford 1/16 ounce for $150. The deal was set for 9:00 p.m. that day. Detective Homman, operating undercover, acted as a drug dealer that Crowell knew from Texas who was in town with cocaine to sell.

Van Winkle drove Crowell to meet Homman. Crowell introduced Van Winkle to Homman and Homman said, "I heard you're looking for party supplies." After Van Winkle explained she only had $44 of the purchase price, Homman agreed to spot her $6, and to forego the remaining hundred...