State v. BartkowskiState v. Bartkowski
- Reporters:
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- Before:
- Pederson
This аppeal is from a judgment upon conviction by a jury of the Class B felony, possession of a hallucinogenic drug with intent to deliver (§§ 19-03.l-05(4)(7), 19-03.1-23(l)(b), and 12.1-32-01(2), NDCC). Bartkowski presents three issues: (1) Did the trial court err in limiting his cross-examination of one of the State’s witnesses? (2) Is the evidence sufficient to sustain the convictiоn? (3) Did the trial court commit prejudicial error in failing to require a special verdict on the question of entrapment? We find no prejudicial error. The evidence is sufficient to support the verdict. The judgment is affirmed.
Bartkowski testified in his own behalf and admitted that he sold a hallucinogeniс drug to Gerald Kemmet, a law enforcement agent. His lawyer argued strenuously that Bartkowski was entrapped (§ 12.1-05-11, NDCC). The entrapment defense was based upon evidence introduced in an attempt to show that a paid informer, Barbara Kadlec, induced Bartkowski to sell the drugs to Kemmеt by using persuasion and other means likely to cause normally law-abiding persons to commit the offense.
I. Limitation of Cross-Examination
During defense counsel’s cross-examination of Kemmet, who is employed as
“While courts generally favor permitting wide latitude on cross-examination, the scope of cross-examination must necessarily be left largely to thе discretion of the trial court.” North American Pump Corp. v. Clay Equipment Corp., 199 N.W.2d 888, 899 (N.D.1972).
The same principle generally applies to cross-examination of witnesses in a criminal case. See discussions in 98 C.J.S. Witnesses § 401c, at 196, and 81 Am.Jur.2d Witnesses, § 472, at 478. Our most recent analysis of limitations on cross-examination of a witness in a criminal case, including offers of proof, is found in State v. Entze, 272 N.W.2d 292, 297 (N.D.1978). In that case, Chief Justice Erickstad, writing for the majority, said:
“We affirm the trial court on the basis that, although the court was in error, the error was without prejudice, [footnote omitted] because defense counsel was later permitted without objection from the State to question the witness . . . .”
In this case Bartkowski ⅛ counsel was not later afforded the opportunity to cross-examine on the subject matter of the transfer of drug law enforcement functions and the appropriation of funds for that purpose. We must determine in this case, as this cоurt did in Entze, whether the trial court committed error in its limitation of cross-examination.
As Bartkowski properly points out, this court acknowledged in State v. Folk, 278 N.W.2d 410, 417 (N.D.1979), that limitations imposed upon the defense in a criminal case may be considered abuse of discretion. Discretion in the courts is never an unbounded discretion. Similarly, the Sixth Amendment right of confrontation, including the right of cross-examination, is not without limitation.
Citing Knoepfle v. Suko, 108 N.W.2d 456 (N.D.1961), this court, in State v. Hilling, 219 N.W.2d 164, 171 (N.D.1974), said:
“The right [to cross-examine] is absolute and the denial of the right as to material evidence is prejudicial error requiring a new trial.” [Emphasis added.]
Ordinarily, the complete denial of cross-examination “would be constitutional error of the first magnitude.” See Brookhart v. Janis, 384 U.S. 1 at 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966). There are exceptions. E. g., the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution does not prevent the use of dying declarations. See Kirby v. United States, 174 U.S. 47 at 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Nor does it. require the disclosure of the identity of an informer. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).
The latitude and extent of cross-examination has always been held to be within the trial court’s reasonable discretion.
Smith v. Illinois,
390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). A reviewing appellate court should not disturb a trial court discretionary ruling unless there has been an abuse of discretion. Although we probably would not have limited the cross-examinatiоn in the manner that the trial court did, that is not the standard we apply in our review. Ordinarily it is preferable that trial courts permit overextended cross-examination rather than imposing limitations which may be unnecessary. It appears that the state’s attorney’s expressed fear that thе case might become a political trial was the only reason for the limitation imposed here. Some courts have expressed the view
We have examined all of . the other cases cited by Bаrtkowski, particularly Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); and Hayes v. Coleman, 338 Mich. 371, 61 N.W.2d 634 (1953), and find that they are not inconsistent with our conclusion.
General rules relating to cross-examination must have some flexibility in order that they may be properly applied to the great number of varied situations which arise. Christianson v. United States, 226 F.2d 646 (8th Cir. 1955), cert. denied, 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859 (1956). For a fuller analysis of limitations on cross-examination, see Vol. 2, Wharton’s Criminal Evidence, 13th Ed., § 421 (1972).
II. Sufficiency of Evidence
Bartkowski has not denied the sale, therefore we are only concerned whether or not the evidence as to entrapment warranted a jury finding that there was no entrapment. In State v. Pfister, 264 N.W.2d 694 (N.D.1978), we held that entrapment is a question for the jury unless there is nо dispute as to the facts or the inferences to be drawn from them. See also State v. Folk, supra. The evidence as to the extent of the inducements used to persuade Bart-kowski was conflicting. As to the number of times that Barbara Kadlec contacted Bartkowski about drugs, there is a very wide rangе in testimony, from approximately six or seven times in total, according to Kadlec, to as many as five or six in a couple of days, according to Bartkowski.
In State v. Kaloustian, 212 N.W.2d 843, 845 (N.D.1973), this court said that “at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidenсe is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.”
This court has also held:
“This being a jury case, to determine whether the evidence was sufficient to support the verdict we must view the evidence in the light most favorable to the verdict.” State v. Moe, 151 N.W.2d 310, 313 (N.D.1967).
See also State v. Goeller, 264 N.W.2d 472, 477 (N.D.1978).
Bartkowski has not shown how. the verdict of the jury that he was guilty is not supported by the evidence. Barkowski was not entrapped “as a matter of law.” When the evidence is conflicting, as in this case, the issue is for the jury. The testimony of both Kadlec and Bartkowski, though differing greatly as to number of contacts, appeared in agreement in describing those contacts as “requests for drugs,” and terms similar thereto. It is not surprising that the jury concluded that a normally law-abiding person would not have been persuaded to sell drugs unlawfully by the tactics used by Barbara Kadlec.
Bartkowski made great effort to show that he was a normally law-abiding person, thus inviting the jury to focus a great deal of attention upon him and away from the conduct of Kadlec. As we said in
State v. Folk, supra,
the entrapment law does not prevent a defendant from doing that. For
Special Verdicts in Entrapment Cases
On oral argument in this court, Bartkowski argued that the trial court committed plain error (Obvious Error under Rule 52(b), NDRCrimP) in failing to require that the jury return a special verdict on the entrapment defense as provided in Rule 31(e)(4), NDRCrimP.
Ordinarily, the touchstones for an effective appeal on any proper issue are: (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment. State v. Haakenson, 213 N.W.2d 394, 399 (N.D.1973).
Here, Bartkowski did not raise the matter of a special verdict on his entrapment defense in the trial court, but he is correct in saying that Rule 52(b), nevertheless, permits this court to consider obvious errors or defects affecting substantial rights which were not raised in .the trial court. That leads us to the question: Does the absence of a special vеrdict in a case where entrapment has been raised as a defense deprive a defendant of a fundamental right?
The American Law Institute, Proposed Final Draft (April 1, 1930), in a Commentary to § 349 (later renumbered as § 337 which is referred to in the Explanatory Note to Rule 31 of the NDRCrimP), states:
“At cоmmon law the jury could bring in a special verdict in any criminal case. ‘And such public or open verdict may be either general, guilty or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it bе murder, manslaughter, or no crime at all. This is where they doubt the determination of the law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proрer so to hazard a breach of their oaths.’ 4 Bl. Comm. 361.”
In the explanatory note to Rule 52 is found the following:
“Subdivision (b) provides that obvious errors affecting substantial rights may be noticed even though they were not brought to the attention of the court. But the power to notice obvious error, whether at the request of counsel or on the court’s own motion, is one the courts should exercise cautiously and only in exceptional circumstances. The power should be exercised only where a serious injustice has been done to the defendant. [See Wright, Federal Practice and Procedure, § 856, pages 372-374 (1969).]” [Emphasis added.]
Rule 31(e), NDRCrimP, is apparently unique to North Dakota. It provides:
“(e) Special Verdicts.
(1) Whenevеr the defendant interposes the defense of insanity and evidence thereof is given at the trial, the jury, if it finds him not guilty on that ground, shall declare that fact in their verdict.
(2) Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict.
(3) Whenever the defendant is charged, with treason or conspiracy to commit treason and more than one overt act is charged, the jury, before returning a verdict of guilty, must return a special verdict with respect to each overt act charged.
(4) Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidenсe thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict.”
Although a significant part of the North Dakota Rules of Criminal Procedure paral
Federal
“(e) Criminal Forfeiture. If the indictment or the information alleges that an intеrest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any.”
Special verdicts in federal courts, other than in cases involving criminal forfeiture, are rare but not unknown. Chief Judgе Aldrich of the United States Court of Appeals, discussed special verdicts in United States v. Spock, 416 F.2d 165 (1st Cir. 1969), and, at 181, quoted from G. Clementson, Special Verdicts and Special Findings by Juries, 49 (1905), as follows:
“ ‘It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.’ ”
It is thus an аnomaly that Bartkowski should argue that the failure to require a special verdict affected his substantial rights and, therefore, constituted obvious error.
The source note to
“Section 337. Verdict may be general or special. The jurors may in all cases rеnder either a general or a special verdict.”
It appears that § 29-22-17, NDCC, which was superseded by
In order that a special verdict be considered or even permitted by the provisions of
The judgment is affirmed. The trial court is directed to require the destruction of the drugs that were made a part of the record in this case.
ERICKSTAD, C. J., and PAULSON, SAND and VANDE WALLE, JJ., concur.