Defendants appeal their convictions of burglary
Although certain facts are disputed by the defendants, the following believable evidence was adduced at trial. Prior to the events in question, defendants resided in the State of California. They communicated with a friend, one John Bucy, about coming to Utah. Bucy lived with his brother-in-law, Jamie Flowers, in Salt Lake County. Flowers testified that Bucy told him that defendants were coming to Utah for the purpose of robbing some Utah drugstores. On April 10, 1979, Flowers notified one James Gillespie, of the State Liquor and Narcotics Enforcement, of what Bucy had told him. Gillespie thereafter assigned agent Lloyd Hansen to contact Flowers for further information.
On the morning of April 11, 1979, defendants arrived in Utah and Flowers met them for the first time. Defendants were without means of supporting themselves and arranged to stay at Flowers' house during their visit. Inasmuch as their own car became inoperable shortly after their arrival, they asked Flowers if he would drive them around and point out some of the drugstores in the area. Later that day, Flowers met with Hansen who attached a listening device to Flowers' person. That evening Flowers drove Bucy and defendants through much of Salt Lake City, Draper, and Riverton. Hansen maintained surveillance from a following vehicle and listened to the conversation in the Flowers' vehicle through the listening device.
The following day, April 12, defendants asked Flowers if he knew of any drugstores outside of the Salt Lake City area. Flowers said he knew of two pharmacies and a medical center in Orem. Flowers was then asked to take defendants there, and also to loan them some of Flowers' tools. Flowers agreed, whereupon he informed Gillespie, Hansen, and the Orem City Police.
Late that night, Flowers drove Bucy and defendants to Orem. After defendants had seen the two pharmacies in the area, they asked Flowers to drive to the medical center. As they proceeded from place to place, they were followed by Gillespie and officers of the Orem City Police in unmarked cars, who were again able to listen to defendants' conversations through the listening device which had been planted on Flowers. When they arrived at the Cascade Medical Center, defendants got out of the car and entered the building carrying what appeared to be an empty white bag. Approximately fifteen minutes later, they emerged from the building dragging a heavy bag behind them. They got back into Flowers' car and were arrested shortly after the car left the parking lot. The car was searched and the following items were removed from the back seat by the arresting officers: a white pillowcase, a fire extinguisher, a telephone answering system, two AM-FM radios, an electric typewriter, a calculator, screwdrivers and leather gloves. Criminal charges were thereafter filed.
On May 8, 1979, defendants moved for dismissal on the grounds that they had been
Defendants' principal contention on appeal is that the evidence established the entrapment defense as a matter of law.
The applicable statutory provisions
In State v. Taylor,
The instant case was tried in May, 1979 and the Taylor decision was rendered in August, 1979. There is considerable discussion on appeal as to whether the Taylor decision should be applied retroactively. The general rule is that a change in the law has only prospective effect.
As stated in Taylor, the objective test does not prohibit the police from affording a person an opportunity to commit crime; it only prohibits active inducements on the part of the government for the purpose of luring an "average" person into the commission of an offense. The activity of the government in the instant case is significantly different from that present in Taylor.
In Taylor, the defense of entrapment was held to be available to the defendant on a charge of distributing for value a controlled substance. In that case, the female undercover agent and the male defendant had cohabited prior to the alleged offense, during which time both were heroin addicts who procured and injected their drugs in a
The facts in the instant case are significantly different. As indicated supra, the believable evidence was that the intention to commit the crime was conceived by defendants before they ever arrived in Utah. As a private citizen,
As an alternative ground for reversal, defendants contend that the trial court erred in refusing to admit certain testimony offered by one of the defendants.
At trial, a question was asked on direct examination by the defense which referred to Flowers' conduct in inducing defendants to commit the crime. The prosecutor objected to the following response: "Well, for one he drove us around. He was talking about..." The court excluded the testimony as hearsay.
Rule 63, Utah Rules of Evidence, provides, in pertinent part, as follows:
It appears that the excluded testimony was offered, not to prove the truth of what Flowers said to defendants, but rather to show that Flowers had made statements which induced defendants to commit the offense. Whether or not Flowers' statements were true is irrelevant, since the crucial factors are that the statements were made and that they influenced the defendants' behavior. The testimony was therefore improperly excluded as hearsay. Nevertheless, in light of other testimony given at trial, the error in excluding the testimony was not prejudicial to defendants. Defendants' proffer of proof attempted to show how defendants were induced into committing the crime. The following interchange is extracted from the transcript:
Defendant also testified as follows:
We deem the foregoing proffer to be wholly unsupportive of any inducement on the part of Flowers, and given the testimony of Flowers, Hansen, and Gillespie to the effect that Flowers never suggested that defendants commit a burglary, there is little likelihood that the above testimony would have had a substantial influence on the jury in bringing about a different verdict. We may not interfere with a jury verdict unless upon review of the entire record, there emerges error of sufficient gravity to indicate that a defendant's rights were prejudiced in a substantial manner. There must be a reasonable probability there would have been a result more favorable to defendant, in the absence of error.
The convictions and judgments are hereby affirmed.
CROCKETT, C.J., and MAUGHAN, WILKINS, and STEWART, JJ., concur.