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In State v. Gurule, 194 Neb. 618, 234 N.W.2d 603 (1975), however, the Supreme Court of Nebraska held that an informer, employed under identical circumstances as in the instant case, had no greater personal interest in supplying evidence against a defendant than any other public officer and that no cautionary instruction should be given as to the weight and credibility of an informer's testimony.
Summary of this case from Steinmark v. ParrattOpinion
No. 39997.
Filed October 30, 1975.
1. Trial: Evidence: Criminal Law. The admission of irrelevant evidence and the asking of improper questions is not reversible error unless there is prejudice to the defendant or he is prevented from having a fair trial. 2. Entrapment: Criminal Law. Where a person has no previous intent or purpose to violate the law, but does so only because persuaded or induced to commit the act by law enforcement agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer apparently provides a favorable opportunity for the violation does not constitute entrapment. 3. ___: ___. The important consideration in determining whether entrapment occurred is the predisposition or readiness on the part of the defendant to commit the crime. 4. Witnesses: Instructions: Criminal Law. Where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested. The accused is not entitled to a cautionary instruction where the witnesses against him are regular public law enforcement officers. 5. ___: ___: ___. An undercover agent who is employed by the State and paid a weekly salary to investigate and gather evidence of drug violations is not an informer such as to require that the jury be advised his testimony is entitled to special scrutiny.
Appeal from the District Court for Hitchcock County: JACK H. HENDRIX, Judge. Affirmed.
John J. Battershell of Cunningham Law Office, for appellant.
Paul L. Douglas, Attorney General, and Gary B. Schneider, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.
The defendant in this case was charged in two counts with delivery of marijuana. The jury returned a verdict of guilty on both counts and he was sentenced to imprisonment for 18 months to 4 years on each count, the sentences to run concurrently. The defendant has appealed and his assignments of error relate to misconduct of the special prosecutor, the instructions to the jury, and whether the sentence was excessive.
The evidence shows that the defendant sold marijuana to Lawrence Dillon, an undercover agent employed by the Nebraska State Patrol, on March 10, 1974, and again on March 13, 1974. The defendant admitted the transactions took place but attempted to characterize the sales as favors to Dillon.
The alleged misconduct of the special prosecutor related to three evidentiary matters. Dillon testified that on one occasion the defendant gave a marijuana cigarette to the 4-year-old son of the woman who was living with the defendant. The defendant objected to this testimony and other similar evidence on the ground that it was irrelevant. The objection was overruled and the evidence was received. The testimony had some slight relevance to the issue of intent since the defendant was charged with delivery of marijuana and not mere possession. Testimony of this nature tends to be highly prejudicial and ordinarily should be excluded. However, its admissibility here was a matter within the discretion of the trial court and we do not find it to have been prejudicial error in this case.
In relating the events at the defendant's home preceding the sale on March 10, 1974, Dillon described a handgun displayed by the defendant as a "Saturday Night Special." The term seems to be one in common usage, but upon objection by the defendant, the term was stricken, and the word "handgun" substituted. The testimony relating to the handgun had no real relevance to any issue in the case and should have been omitted from the State's case. However, it did not prevent the defendant from having a fair trial and does not require that the judgment be reversed.
The defendant called a number of witnesses who testified that they knew the defendant; smoked marijuana and had purchased it locally; but had never purchased it from the defendant. The special prosecutor asked each of these witnesses whether the laws prohibiting the delivery of marijuana should be abolished or not enforced. In each instance the defendant's objections to the questions were sustained and the witnesses were not permitted to answer.
The questions were improper and the special prosecutor was advised by the trial court at a conference at the bench that the questions would not be permitted. Nevertheless, the special prosecutor continued to question each witness in the same manner. This was misconduct and if prejudicial would have required a reversal. We do not believe it was prejudicial in this case for several reasons. There was no dispute about the essential facts, the delivery of marijuana on March 10 and March 13, 1974. The attitude of these witnesses toward the drug laws was apparent to the jury from their other testimony. In each instance the defendant's objections to the question were sustained. Under these circumstances there was no prejudice to the defendant. See State v. Country, 184 Neb. 493, 168 N.W.2d 918.
The defendant requested three instructions to be given to the jury, all of which were refused. The first requested instruction related to the defense of entrapment. Instruction No. 9 given by the trial court was the Nebraska Jury Instruction on entrapment, NJI No. 14.34, verbatim.
Where a person has no previous intent or purpose to violate the law, but does so only because persuaded or induced to commit the act by law enforcement agents, he is entitled to the defense of entrapment. But where a person already has the readiness or willingness to violate the law, the fact that an officer apparently provides a favorable opportunity for the violation does not constitute entrapment. State v. Ransburg, 181 Neb. 352, 148 N.W.2d 324; State v. Smith, 187 Neb. 511, 192 N.W.2d 158; State v. Young, 190 Neb. 325, 208 N.W.2d 267.
The Nebraska Jury Instruction is phrased in terms of "improper" inducement. The representations made by an undercover agent are almost always false in some particulars and, to some extent, may constitute an inducement to commit the crime. It is improper inducement that gives rise to the defense of entrapment. Overpersuasion, undue pressure, or coercion may constitute improper inducement and entrapment. State v. Ransburg, supra. The important consideration in determining whether entrapment occurred is the predisposition or readiness on the part of the defendant to commit the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. Reluctance or unwillingness on the part of the defendant may indicate an absence of predisposition or readiness to commit the offense. These matters are all covered in the Nebraska Jury Instruction, and we find no error in regard to Instruction No. 9.
The second instruction requested by the defendant was a cautionary instruction concerning the weight and credibility to be given to a paid informer. The trial court gave no instruction of this nature.
Where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested. The accused is not entitled to a cautionary instruction where the witnesses against him are regular public law enforcement officers. State v. Goff, 174 Neb. 548, 118 N.W.2d 625.
The principal witness for the State in this case was the undercover agent Dillon. Dillon was employed by the State to investigate and gather evidence of drug violations. He was not a regular officer in the sense of a permanent employee, but he was paid a weekly salary while employed and was not employed to seek evidence against a particular person only.
In a similar factual situation, the Alaska Supreme Court held that no cautionary instruction was required. Turner v. State (Alas.), 515 P.2d 384. We think this was the correct rule in this case. There was nothing to indicate that Dillon had any greater direct personal interest in supplying evidence against the defendant than any other public officer. We find no error in refusing the requested instruction.
The third requested instruction related to the testimony of an accomplice. It had no relevance to any testimony in the case and was properly refused.
The defendant is approximately 34 years of age. He has a lengthy arrest record and has been convicted of second offense joyriding and possession of narcotic drugs. In view of his past record and the serious nature of the offense, there was no abuse of discretion. The sentences imposed were not excessive.
The judgment of the District Court is affirmed.
AFFIRMED.