State v. BryantState v. Bryant
- Reporters:
- , ,
- Before:
- Langtry
Lead Opinion
Dеfendant was convicted in a jury trial on a two-count indictment charging him with furnishing marihuana and LSD.
The defendant was 20 years old and his accomplice, named Kelsay, wаs 16. Evidence was that two undercover police officers in downtown Portland saw defendant and Kelsay togethеr at a time when they passed a “hash pipe” from one to another. They drove up to the pair and asked them if they knew where they could get some narcotics. The officers and the defendant agreed that defendаnt answered by saying, “ ‘yeah, I can get you all you want in Oregon City.’ ” Defendant and Kelsay got in the back seat *564of the officers’ car and they drove first to West Linn and, when the proper contact was not made for the drugs there, on aсross the Willamette River bridge into Oregon City where one or both of the accomplices saw in a bus a man they wеre looking for. Defendant stayed in the officer’s car while Kelsay, with $20 of the officers’ money, went to the bus and reаppeared shortly after and gave marihuana and LSD to the officers. The officers then arrested defendаnt and Kelsay. In an arrest search a baggie of marihuana was found on defendant.
The preliminary motion to supрress necessarily was directed toward the marihuana found on the defendant. Defendant called Kelsay as a witness on the motion. Following is the pertinent part of the transcript :
“Q [Mr. Ilingson, Defendant’s Counsel:] Okay. On the ride from Portland tо Oregon City, were you apprehensive for your safety?
“A [Kelsay:] Yeah, a little.
“Q. Why?
“A Because of the way they were talking, kind of.
“Q Who is they?
“THE WITNESS: Okay. Because of the way they were talking.
“MR. HINGSON: Q The Policemen?
“A Yeah.
“Q How were they talking?
“A Oh, kind of like they were going to punch us out if we didn’t get it for them.
“Q By ‘it’ you mean the narcotics or dangerous drugs ?
“A Yeah.
*565“Q By ‘punch us out’ you mean—
“MR. HINGSON: Okay. Just one thing here.
“Q What did ‘punch it out’ mean to you?
“A Beat us up.
“MR. HINGSON: No further questions.”
The prosecutor had objected to this line of questioning.
Defеndant’s attorney contends that the testimony by Mr. Kelsay was additional proof of the defendant’s contention that hе was entrapped by the police officers and that inasmuch as Kelsay claimed his privilege not to testify at the trial the defendant was entitled to have this evidence read to the jury.
We do not agree that the evidence was competent.
Defendant’s contention was that he аnd Kelsay, so they could get a free ride to their homes in Oregon City, led the officers to believe they could get nаrcotics in Oregon City but they had no intention of going through with their agreement to get the narcotics. When the officers stаrted talking tough to them defendant asserts that he became afraid and that his fear of the officers was what cаused him to become involved. As the state argues, this sounds more like duress than it does entrapment. See
It is true that when a witness is unavailable by rеason of claiming the Fifth Amendment privilege, if he has formerly given relevant testimony under oath and there has been opportunity for cross-examination, his testimony may be read to the jury. State v. Rawls, 252 Or 556, 563, 451 P2d 127 (1969). This is the general rule. See Annotation, 45 ALR2d 1354 (1956) and 40-48 ALR2d Later Case Service 540 (1969). Here, for good reаson, there was no cross-examination because the subject was obviously irrelevant. The usual context of this situаtion is one where the prosecution is trying to get the evidence in. Here, the reverse is true. But each side in a сriminal prosecution has a right to cross-examine adverse witnesses. Further, after the trial judge hearing the motion tо suppress had allowed Kelsay to testify over the prosecution’s relevancy objection about the alleged threats, he clearly told defense counsel that entrapment is a defense for the jury, and was to be рresented at the time of trial. That is what we held in State v. Folsom, 1 Or App 404, 406-07, 463 P2d 381 (1970):
“* * * A motion to suppress is not the proper procedure for raising and deciding entrapment in a criminal case * * *.
“We adhere to the procedure, urged by the state, that evidеnce of entrapment be presented in the trial before the jury. If the facts are sufficiently clear to show еntrapment as a matter of law, the court can terminate the case. If the facts are conflicting the сourt can submit the issue to the jury.”
Thus, when defense counsel called Kelsay as a witness on the motion to suppress and insisted on asking questions irrelevant to that hearing, the prose*567cutor quite properly objected and refused cross-examination on the irrelevant subject. Both because of the relevancy question, and because defendant tried to impose an incorrect procedure, there was no cross-examination and hence the transcript of Kelsay’s challenged testimony was inadmissible on defendant’s trial.
Affirmed.
Concurrence Opinion
Concurring.
I concur in the majority opinion. Hоwever, I wish to add that in my opinion, even assuming the testimony in question were otherwise admissible, it was not relevant in the case at bar. Both at trial and on appeal the only relevance claimed for it by the defendant was that it wаs evidence of entrapment. As I read the testimony its only relevance would be on the issue of duress as distinguished from entrapment. Duress and entrapment involve totally different states of mind. Entrapment deals with the cause of a criminal state of mind; duress negates a criminal state of mind.