State v. Ogden

STATE_V_OGDEN.92-386; 161 Vt. 336; 640 A.2d 6

[Opinion Filed 05-Nov-1993]

[Motion for Reargument Denied 03-Feb-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-386


 State of Vermont                   Supreme Court

                                    On Appeal from
        v.                          District Court of Vermont
                                    Unit No. 3, Essex Circuit

 Danelle Ogden                      May Term, 1993


 Alan W. Cheever, J.

 Thomas M. Kelly, Drug Prosecutor, Montpelier, for plaintiff-appellee

 Michael Rose, St. Albans, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.    Defendant Danelle Ogden appeals his conviction for
 knowing and unlawful delivery of more than one-half ounce of marijuana in
 violation of 18 V.S.A. { 4230(b)(2).  He claims that: (1) a search of his
 residence was improperly executed and evidence from it should have been
 suppressed; (2) the statement of a police informant should have been
 admitted into evidence because it was an admission by the government as a
 party opponent in the prosecution; and (3) flawed instructions prevented the
 jury from giving fair consideration to the defense of entrapment.  We
 affirm.
      On August 24, 1990, two undercover officers of the Northern Vermont
 Drug Task Force met an informant in Norton, Vermont, to arrange a purchase
 of illegal drugs, as part of an investigation in an area of the town known

 

 as Earth People's Park.  The informant, Robin Stengel, had been a resident
 of the Park and had agreed to introduce the officers to individuals who
 could sell them marijuana.  As a result of Stengel's efforts, defendant met
 with the officers just outside the Park and delivered to them approximately
 ten ounces of marijuana for $500.
      Continuing its investigation, the Task Force obtained six search
 warrants for residences in the Park, including defendant's.  Before the
 execution of the warrants, the police knew that marijuana cultivators in the
 Park carried guns and would discharge them to warn others of police presence
 in the Park, that shots had been fired at a police officer when he entered
 the Park to make an arrest, and that others had complained of shots being
 fired at them in the Park.  The trial court found that the officers had a
 reasonable basis to believe that there was a risk defendant would use
 firearms or otherwise engage in violence upon police entering his property.
      On September 28, 1990, the police executed the warrant to search
 defendant's home for evidence of marijuana cultivation and sale.  Defendant
 was at home and in bed at the time.  At approximately 6:25 a.m., the police
 approached a woodshed-type foyer attached to defendant's house and found the
 door to the shed ajar.  They entered the open door and proceeded to a second
 door, which was closed but unlocked, knocked loudly on the door, announced
 "State Police, search warrant," and immediately entered the premises.  As a
 result of the search, police seized marijuana and other evidence of
 cultivation.  Defendant was tried before a jury on the August 24 delivery of
 marijuana and unsuccessfully asserted the defense of entrapment.

 

                                     I.
      Defendant first contends that the results of the September 28 search
 should have been suppressed because the search was illegal.  Alternatively,
 defendant claims that the evidence should have been excluded because its
 prejudicial effect outweighed any probative value.  We find no error in the
 decision to admit the evidence at trial.
      According to the first part of defendant's argument, the search was
 illegal because the State did not comply fully with the procedural
 requirements of its execution.  Defendant asserts that valid execution of a
 warrant requires police to knock, announce their presence and purpose, and
 wait a reasonable period of time prior to entering the premises, and that
 only exigent circumstances, not present in this case, can excuse full
 compliance.  The State argues that no such "knock and announce" requirement
 exists as a matter of state or federal constitutional law, and that even if
 it does, sufficient exigency existed to validate the immediate entry into
 defendant's home.
      In its ruling on defendant's motion to suppress evidence resulting
 from the search, the trial court found that police, prior to entering the
 closed inner door, "pounded" on the door and uttered in a loud voice "State
 Police - Search Warrant."  The court also found that defendant's bedroom was
 directly above the entrance to the house; that defendant's girlfriend,
 present with him at the time of the search, was a light sleeper; and that an
 officer outside the house clearly heard the other officers "pounding,
 shouting and stomping through the dwelling."  The court concluded that
 defendant's testimony that police failed to "knock and announce" was not

 

 credible.  Since the court found and defendant on appeal does not contest
 that the police knocked and announced their presence prior to entry, we need
 not decide whether either the Fourth Amendment to the United States
 Constitution or Chapter I, Article 11 of the Vermont Constitution mandates
 this procedure in executing a search warrant.  We assume for purposes of
 discussion only that it is required.  The issue is whether, after providing
 notice of their presence and intent to search prior to entry, exigent
 circumstances can permit immediate entry, and if so, whether sufficient
 exigency existed the morning of September 28, 1990.
      An exigency may excuse compliance with a knock-and-announce
 requirement.  Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991);
 Beshears v. State, 593 So. 2d 174, 175 (Ala. Crim. App. 1991); People v.
 Condon, 592 N.E.2d 951, 954 (Ill. 1992); State v. Thompson, 571 A.2d 266,
 268 (N.H. 1990); State v. Williams, 840 P.2d 1251, 1254 (N.M. Ct. App.
 1992); Commonwealth v. Bull, 618 A.2d 1019, 1022 (Pa. Super. Ct. 1993);
 State v. Moss, 492 N.W.2d 627, 630 (Wis. 1992), cert. denied, 61 U.S.L.W.
 3620 (U.S. Mar. 8, 1993).  Furthermore, the permissible degree of departure
 from compliance may vary with the nature of the exigency.  Compare Rivera,
 928 F.2d  at 606 (failure to knock and announce acceptable only where
 officers have objectively reasonable belief that there exists an imminent
 danger of bodily harm to persons inside or of destruction of critical
 evidence) with United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.),
 cert. denied, 469 U.S. 824 (1984) (warrant validly executed where officers
 knocked, announced presence through closed but unlocked screen door, and
 entered immediately out of reasonable fear that person within would be
 armed).

 

      Thus, where the police have knocked and announced their identity and
 purpose, an exigency may justify immediate entry if that entry can be
 accomplished without physical destruction of property.  McConney, 728 F.2d 
 at 1206; United States v. Whitney, 633 F.2d 902, 909 (9th Cir. 1980).  The
 exigency, however, must be objectively reasonable. "Whether the
 circumstances present sufficient exigency necessarily involves judgment.  An
 unjustified but sincere fear by an officer cannot excuse noncompliance or
 the protection of the occupants' privacy interest would depend on no more
 than an officer's anxiety."  McConney, 728 F.2d  at 1206.
      In ruling on the motion to suppress, the trial court found that the
 police
      had a reasonable basis and articulable facts to conclude that
      individuals residing in the park involved in the cultivation
      and/or distribution of marijuana, had access to firearms, would
      use those firearms to warn of police presence in order to destroy
      drugs on the premises and [that] there was a reasonable risk that
      [cultivators] would make use of firearms or otherwise engage in
      violence upon police entering their property.
 Defendant had actual notice of the presence and purpose of the police, who
 were able to enter his house without physical destruction of the premises.
 Therefore, immediate entry was justified.
      We emphasize that we do not decide whether the Vermont or United States
 constitutions mandate a "knock and announce" requirement.  We hold only
 that where, as here, police execute a valid search warrant with an
 objectively reasonable belief that awaiting a reply would jeopardize the
 safety of officers; have knocked and announced their purpose in a manner
 reasonably likely to provide the subjects of the search with actual notice;
 and can enter without damaging the premises, the police may enter
 immediately without awaiting a response.  We leave open the question whether

 

 immediate forceful entry may be justified.  The trial court correctly denied
 defendant's motion to suppress.
      We also reject defendant's alternative argument for suppression of the
 evidence obtained from the September 28 search, that the evidence should
 have been excluded because its unfairly prejudicial effect outweighed any
 probative value.  Defendant's formulation of the balancing test described in
 Rule 403 omits its discretionary aspect:  "[a]lthough relevant, evidence may
 be excluded if its probative value is substantially outweighed by the danger
 of unfair prejudice."  V.R.E. 403 (emphasis added).  Absent an abuse of
 discretion, in which the court either totally withholds or exercises its
 discretion on clearly untenable or unreasonable grounds, the trial court's
 evidentiary ruling stands on appeal.  State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988).
      Under Rule 403, the court must first find that the evidence has
 probative value that makes it relevant.  Id. at 398, 545 A.2d  at 515; see
 V.R.E. 401 (evidence is relevant if it makes a fact of consequence more or
 less probable); V.R.E. 402 (relevant evidence admissible unless otherwise
 excluded by constitution, statute or rule).  The trial court concluded that
 the marijuana found on September 28 would have been growing at least since
 August 24, demonstrating defendant's knowledge of and access to marijuana on
 August 24.  As such, the evidence was probative and relevant to the crime
 charged.
      The next step of the Rule 403 analysis requires consideration of
 whether the introduction of the evidence was so unfairly prejudicial as to
 outweigh its probative value; if so, the court in its discretion may exclude
 the evidence.  Parker, 149 Vt. at 400, 545 A.2d  at 516.  The record shows

 

 that the court found that evidence that marijuana was found in the search of
 defendant's home had the potential for unfair prejudice.  To reduce this
 risk, the jury was admonished at two distinct points in the trial -- just
 after the evidence was admitted and again in the final instructions before
 jury deliberation -- that the evidence was to be considered only on the
 issue of knowledge, and not as evidence of defendant's character or that he
 acted in conformity with that character.  See V.R.E. 105 (providing for
 limited admissibility).  Having given the limiting instruction, the court
 had a reasonable basis to admit the probative evidence despite its potential
 for unfair prejudice.  Nothing indicates clear error or an inappropriate
 exercise of discretion by the trial court that would warrant our disturbing
 that ruling on review.  The September 28 evidence was properly admitted.

                                     II.
      Defendant next argues that the trial court erroneously excluded the
 proffered testimony of a defense witness as inadmissible hearsay, which
 effectively invalidated his claim of entrapment.  He claims that police
 informant Robin Stengel, a long-time acquaintance of his, owned the
 marijuana that he delivered to police on August 24, and had convinced him to
 make the sale on her behalf.  As proof of Stengel's alleged plan, defendant
 intended to call Brenda Wing, who was to testify that just before the
 transaction Stengel said that she would soon be able to repay money owed to
 Wing.
      The State moved to exclude the statement as hearsay, but defendant
 asserted that Stengel's statement was admissible under V.R.E. 801(d)(2)(D)
 as the admission of a government agent concerning a matter within the scope

 

 of her agency, made during the existence of the agency relationship.  The
 court assumed that an agency relationship existed between Stengel and the
 State at the time the statement was made, but nevertheless ruled that the
 statement did not concern a matter within the scope of that agency.(FN1)
 Therefore, the statement regarding repayment could not be admitted under
 Rule 801(d)(2)(D), but was inadmissible hearsay.  We agree that the
 statement was inadmissible under Rule 801(d)(2)(D), but do not decide
 whether the statement could have been admitted under an exception to the
 hearsay rule.
      The trial court properly exercised its discretion in excluding the
 proffered testimony.  Preliminary questions of admissibility are for the
 trial court, V.R.E. 104(a); State v. Orvis, 143 Vt. 388, 391-92, 465 A.2d 1361, 1363 (1983), including whether specific statements come within the
 scope of an agency relationship.  A decision left to the discretion of the
 trial court will be reversed only where the trial court has abused its
 discretion.  Parker, 149 Vt. at 401, 545 A.2d  at 517.

 

      A party proffering evidence under V.R.E. 801(d)(2)(D) bears the burden
 of establishing: (1) the existence of the agency relationship, (2) that the
 statement was made during the existence of that relationship, and (3) that
 the statement relates to a matter within the scope of that agency.  Pappas
 v. Middle Earth Condominium Ass'n, 963 F.2d 534, 537 (2d Cir. 1992)
 (applying substantially identical Fed. R. Evid. 801(d)(2)(D) in diversity
 action under Vermont law of agency).  The existence and extent of an agent's
 authority is a question of fact.  Estate of Sawyer v. Crowell, 151 Vt. 287,
 292, 559 A.2d 687, 691 (1989).
      There is no per se rule that an informant is or is not an agent of the
 government; principles of agency law determine whether an informant
 qualifies as a police agent for entrapment or any other purpose.  See,
 e.g., United States v. Cruz, 783 F.2d 1470, 1473 (9th Cir. 1986) (for
 purposes of entrapment defense, "an informant is not necessarily a
 government agent"); People v. Owczarzak, 372 N.W.2d 683, 685 (Mich. Ct. App.
 1985) (police not responsible for actions of informer taken before they
 agreed to employ him); State v. Wells, 731 S.W.2d 250, 251 (Mo. 1987)
 (police must take responsibility for actions of informant performed within
 apparent scope of informant's employment).
      We assume, as the trial court did, that Stengel was an agent for
 purposes of Rule 801(d)(2)(D).  We also assume that the alleged activities
 and statements supporting defendant's entrapment theory occurred during the
 pendency of the agency.  The only question, then, is whether the alleged
 statement of Stengel to Wing fell within the scope of her agency as a police
 informant.

 

      "The authority granted in the agency relationship need not include
 authority to make damaging statements, but simply the authority to take
 action about which the statements relate."  Pappas, 963 F.2d  at 538.  The
 standard for what falls within the scope of an agency has been relaxed
 somewhat since the adoption of the federal rules and their Vermont
 counterpart.  Compare Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81,
 82 (2d Cir. 1965) (in diversity action under Vermont law, principal bound
 "'if the agent was authorized to make the statement or was authorized to
 make, on the principal's behalf, any statements concerning the subject
 matter'" (quoting Restatement (Second) of Agency { 286 (1958))) with
 Reporter's Notes, V.R.E. 801 ("The present rule adopts the broader view
 allowing statements about matters within the scope of employment in order to
 prevent loss of valuable evidence.")  We believe that even under a more
 expansive view of agency for purposes of V.R.E. 801(d)(2)(D), the particular
 facts and circumstances of this case demonstrate that the alleged statement
 of Stengel to Wing fell outside the scope of her agency relationship.
      According to defendant's entrapment theory, Stengel used him as a
 middleman to accomplish an illegal sale of her own marijuana to undercover
 police officers.  Defendant did not argue, nor does the record show, that
 police knew anything about Stengel's alleged plan to reap a profit from the
 sale.  The police officers testified that Stengel contacted them with
 information about drug sales at the Earth People's Park, and that she was
 willing to introduce them to dealers.  In return for the information, she
 was provided with modest living expenses and small cash disbursements, but
 the record reveals no police authorization that she retain proceeds from
 drug sales.  In sum, we find no reasonable basis to conclude that Stengel

 

 was authorized by police to arrange a sale of marijuana for personal profit,
 but that the purported deal exceeded the scope of her agency.  Since the
 alleged statement to Wing concerned Stengel's proceeds from the sale, it
 too was outside the scope of the agency.
      Vermont has adopted an objective test of entrapment, which focuses on
 the conduct of law enforcement officials, not the defendant.  See State v.
 Wilkins, 144 Vt. 22, 28-29, 473 A.2d 295, 298-99 (1983).  The purpose of the
 defense "is to deter improper governmental activity in the enforcement of
 the criminal laws."  Id. at 29, 473 A.2d  at 298.  In this case there is no
 suggestion that the police engaged in improper enforcement techniques or
 authorized Stengel as their agent to do so.  The policy of deterrence would
 not be served were Stengel's alleged statement to Wing attributed to the
 police.  Indeed, the very notion of a "scope" of agency demonstrates an
 awareness that as a matter of simple fairness a principal will not be
 answerable for every action of an agent.  We emphasize, however, that the
 fact-based inquiry as to the extent and nature of agency precludes the
 police from denying responsibility for the actions of their informants as a
 matter of course.
      Absent any proof of police approval or authorization, Stengel's alleged
 plan to pursue a criminal course of conduct was not within her agency.  We
 hold that ample uncontested evidence exists in the record to provide a
 reasonable basis for a holding that Stengel's alleged statement to Wing was
 inadmissible as an admission of the state under V.R.E. 801(d)(2)(D).  The
 court could reasonably have concluded that the statement fell outside any
 agency relationship she had with the government, and, therefore, did not
 abuse its discretion.

 

                                    III.
      As the final issue on appeal, defendant claims that the court's
 instructions to the jury gave short shrift to the defense of entrapment,
 which rendered the charge unbalanced and unfair.  Defendant acknowledges
 that the court fully instructed the jury on entrapment, but finds fault in
 the court's failure to reiterate the possibility of exoneration by
 entrapment in the final sentences of the jury charge.  We find no merit in
 this claim.  Reviewing a jury charge, this Court examines it as a whole, not
 piecemeal.  State v. Davis, 157 Vt. 506, 511, 601 A.2d 1381, 1383 (1991).
 The trial court emphasized the need for the jury to consider the
 instructions as a whole in its deliberations, and not to single out one
 instruction alone as stating the law.  Since a complete and adequate
 instruction as to the entrapment defense was included in the jury charge, we
 cannot find the instructions unfair or unbalanced.
      Affirmed.


                               FOR THE COURT:




                               Chief Justice

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                               Footnotes

FN1.    The court reconsidered its ruling the following day, and cited
United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967) (construing
federal law before adoption of the Federal Rules of Evidence), for the
proposition that in a criminal prosecution, statements by an agent of the
government at the investigative level are not admissible against the
government.  Courts have split on this issue.  See, e.g., United States v.
Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979) (government not a party
opponent for purposes of Fed. R. Evid. 801(d)(2)(D)).  But see United
States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989) (government-
promulgated manual on sobriety testing procedures could have been introduced
as admission under Fed. R. Evid. 801(d)(2)(D)); United States v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988) (admission where the government argued
trustworthiness of statements inconsistently in separate court proceedings).
     Because we agree with the trial court's first ruling that Stengel's
statement to Wing did not fall within the scope of her status as government
informant, we do not reach the issue of whether the government qualifies as
a party opponent in a criminal prosecution for purposes of V.R.E. 801(d)(2).