State v. GasserState v. Gasser
- Reporters:
- , ,
- Before:
- Owsley
The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from convictions of theft (
Defendant became acquainted with Clyde Ralph and Kent Green while all were guests of the state at the Kansas State Penitentiary as a result of previous crimes. After release in 1972, Green again ran afoul of the law and was arrested on state and federal charges in June, 1973. Hoping for leniency he became an operative for both state and federal authorities in early July, 1973. On July 18, 1973, Green reestablished contact with another Lansing alumnus, Quay Douglas Worth. (For a complete detail of that account, see State v. Worth, 217 Kan. 393, 537 P.2d 191, cert. denied 423 U.S. 1057, 46 L.Ed.2d 647, 96 S.Ct. 792.) The two of them went to the Seventh Step Foundation in Wichita on July 20, where they met Ralph, and Ralph consummated a firearm transaction with Worth. Green did not hear from Ralph again until the latter part of July when Ralph called him at his home in Burns, Kansas. At that time Ralph asked Green to stop and see him the next time he was in Wichita.
In the first part of August, Green went to Wichita to see Ralph at Worth’s home. Over lunch the three discussed how they might make money by committing some burglaries and thefts. About August 20, Ralph, his wife and child, and defendant went to Burns to see Green. Green drove Ralph and defendant past banks in Burns, Florence and Cedarvale. Ralph told Green that since defendant worked at a packing plant they could steal a truckload of meat. Green contacted Carl Arbogast of the K.B.I. and told him what had transpired. The next day Ralph returned to Burns to inspect the inside of the bank.
On August 22, Ralph telephoned Green and told him the bank at Burns was going to be hit that night. Green called the K.B.I. and surveillance was set up. That evening Ralph, his wife, Worth, a man named Perez, and defendant went to Burns. Ralph unloaded burglary tools and took them into Green’s house. Ralph and Perez left to reconnoiter the bank. They apparently spotted the surveillance and canceled their plan, returning to Wichita. The men feared they would be spotted if they carried the tools back to the car, so they left them with Green. The next day Ralph called Green and asked him to bring the tools to Wichita.
On August 26, Green took the tools to Wichita. While there
The next day arrangements were made to complete the transaction. Vern Miller selected a roadside park in Schulte, Kansas, as the place to meet. When Green called Ralph to tell him the deal was on, Ralph told him the meat would not be cut and packaged, but instead would be swinging and uncut at $16,000 a truckload. Ralph also told Green he wanted to meet the buyer and verify he had the money.
It was decided that Michael Gammage of the Alcohol, Tobacco and Firearms Bureau of the United States Treasury Department would pose as the buyer. Green and Gammage, with money in hand, drove to Ralph’s home. Vern Miller was hiding in the trunk of the car. Upon their arrival Ralph emerged from his house, got into the car with them, and counted the money while Green drove around the block. Ralph was satisfied that arrangements were satisfactory and told them final details would be worked out later that evening. At about 6:00 p.m. Green called Ralph and told him to meet them at the roadside park in Schulte at 10:00 p.m. Attorney General Miller had the roadside park surrounded with officers.
At approximately 10:00 p.m., Green, Arbogast and Gammage arrived at the park with Miller in the trunk of the car. Three-quarters of an hour later a semi-tractor and refrigerated trailer drove past the park followed by a car similar to one in which Ralph said he would be riding. The driver sounded the car horn twice as he drove by. A few minutes later the car returned, drove into the park, faced the direction the truck had gone and blinked its lights twice. The truck soon pulled into the park and stopped near the car.
Agent Gammage walked to the rear of the trailer, opened the doors, shined a light inside and observed a large quantity of swinging uncut beef. Ralph stated he could only get half a load and the price would be $8,000. Gammage walked toward the front of the truck where he was met by defendant, who asked if
Upon a prearranged signal, Vern Miller leaped from the trunk of the car and sprinted after the fleeing defendant. Gunfire erupted and defendant was felled by buckshot from a shotgun fired by an officer hiding in the underbrush. Miller then apprehended defendant.
Defendant admitted participation in the theft, but contended he was entrapped by Green’s actions. He admitted going to Burns to burglarize the bank but said he changed his mind when he saw other people around the bank. He alleged it was Green who concocted the scheme of stealing the meat because he had a buyer for it, and that Green first came to him and his friends with the idea. The only reason he went along with the plan was because he would receive a large sum of money.
As to the charge of obstructing official duty, defendant testified he ran from Gammage because he did not know Gammage was a police officer, but instead thought he was being “ripped off.” Obviously, the jury chose not to believe defendant’s version of the facts.
Defendant argues the facts of the case constitute entrapment as a matter of law. This contention has no merit. Where evidence is offered to support the defense of entrapment, a question of fact is raised whether the intent to engage in the offense originated in the mind of the defendant or was instigated by officers or agents of the state.
(State v. Amodei,
222 Kan. 140, 563 P.2d 440;
State v. Carter,
214 Kan. 533, 521 P.2d 294;
State v. Bagemehl,
213 Kan. 210, 515 P.2d 1104;
State v. Reichenberger,
209 Kan. 210, 495 P.2d 919.) It is a rare occasion when entrapment is established as
The defense of entrapment is set forth in
A jury is required to look at the conduct of both the law enforcement officials and the defendant in each case where entrapment is asserted, unless there is absolutely no evidence to show the defendant was predisposed to commit the crime or was engaged in a business where the crime repeatedly and continuously occurred. (State v. Bagemehl, supra at 213.)
Defendant urges this court to abandon this so-called “subjective” or “origin of intent” test for the “objective” test adopted in several jurisdictions. The test used in Kansas is one used by the majority of jurisdictions and the “objective” test is the minority rule.
Under the “objective” test of entrapment the jury is forbidden to examine the criminal intent or conduct of the defendant asserting the entrapment defense, but is required to focus its inquiry solely on the acts of the law enforcement officials who participated with defendant in his criminal enterprise. (McKay v. State, 489 P.2d 145 [Alaska 1971]; Grossman v. State, 457 P.2d 226 [Alaska 1969]; State v. Mullen, 216 N.W.2d 375 [Iowa 1974]; People v. Asher, 67 Mich. App. 174, 240 N.W.2d 749 [1976]; Commonwealth v. Jones, 242 Pa. Super. Ct. 303, 363 A.2d 1281 [1976].) The “objective” test is described in Grossman v. State, supra at 229:
. . . [Entrapment occurs when a public law enforcement official, . . . in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who is ready and willing, to commit such an offense. . . .”
Entrapment is a defense used to negate a defendant’s criminal intent to commit the crime for which he is charged by showing that the real criminal intent was conceived by law enforcement officials. (State v. Jordan, 220 Kan. 110, 551 P.2d 773; State v. Hamrick, 206 Kan. 543, 479 P.2d 854.) To disprove entrapment the state must show the intent and state of mind of the defendant on trial, not the state of mind of a mythical average man. In order to do this, it is proper to show the defendant was predisposed to commit the crime before the state approached him. The state may introduce evidence of prior convictions, criminal activities or previous suspicious conduct to disprove entrapment. (State v. Amodei, supra at 147; State v. Reichenberger, supra at 218.)
This does not mean, however, that the state is given a wholesale license to introduce a defendant’s criminal past once he argues he was entrapped. Entrapment raises the issue of a defendant’s predisposition to commit the crime for which he is charged. Evidence of other criminal enterprise must be related or substantially similar to the present charge to be admissible. (
Our reading of
Defendant’s next alleged error relates to Instruction No. 18. This instruction cautioned the jury to consider only the evidence which had been presented in this case and not to concern itself or speculate as to evidence it felt might have been presented. The instruction further advised that a juror is not compelled to adhere to a point of view once arrived at if he is convinced after
Since no objection was given to the instruction at trial, the instruction must be clearly erroneous to warrant reversal. (
Finally, defendant argues his conviction for obstructing official duty (
First, defendant argues Gammage was not in the process of discharging his official duties when he arrested defendant; thus, the statute does not protect him. According to defendant, Gammage must have been attempting to arrest defendant for violation of a federal law before he would be protected by
Defendant also argues the conviction is void because Gammage was not sufficiently identified as a police officer. While
We find no error and the judgment of the trial court is affirmed.