A 46-year old man was charged in two indictments with several drug crimes, including sale of a controlled substance and criminal possession of a controlled substance occurring on different dates. At arraignment, the defendant entered pleas of not guilty.
With the consent of the district attorney, the defendant entered a plea of guilty to the charge of criminal possession of a controlled substance. In consideration for the bargained plea, the remaining counts of that indictment, as well as those contained in the other indictment, were to be dismissed. Prior to sentencing, the defendant claimed that his plea of guilty was coerced by his former attorney, and he moved for its withdrawal. Although it was determined that the defendant’s claim of coercion was unfounded, the court nonetheless permitted the withdrawal of the guilty plea.
Defendant now appeals from the judgment convicting him of the drug crimes following a jury trial.
When the defendant took the stand, he asserted for the first time an agency defense. He testified that after he was introduced by the informant to the police investigators, he told them that he didn’t sell drugs. He said he received $100 from the informant and after that he went to a house and bought LSD tablets. He said he then gave the drugs to the informant and the informant received a hundred dollars from the narcotics agents.
The defendant raised several issues in his appeal. First, he argues that he was denied the benefit of exculpatory testimony because of the district attorney’s failure to request that immunity be conferred upon the informant. The appellate court said the prosecution was not obliged to grant immunity to the informant. The appellate court noted that the informant was not an active participant in the drug transaction based on the testimony of the police, who relayed that the informant arranged the meeting, was present at the sale, but was not an actor in the criminal transaction. In short, the appellate court said, the informant was a “facilitator and an observer”. The informant was not an officer and there is no basis in the record to conclude that his testimony would have materially exculpated the defendant, the appellate court held.
The defendant then argued that the prosecutor’s extensive cross-examination on him as to prior drug sales and the admission of rebuttal evidence of those crimes constituted reversible error. The appellate court disagreed. The appellate court explained that because the defendant seeks to avoid criminal responsibility by asserting that he acted solely as the agent of the buyers, the district attorney was entitled to introduce proof of other crimes to establish the defendant’s intent to sell drugs.
Inquiry as to prior drug transactions, however, may not be extended to include proof that the defendant stands indicted for crimes other than that for which he is on trial, the appellate court noted. The prosecutor’s cross-examination improperly elicited testimony that the defendant was under indictment for other crimes and, indeed, his questioning speculated as to how many other those pending charges there might be, the appellate court found.
The appellate court, after review of the records of the case, reversed the indictment. The appellate court noted that, despite the defendant’s withdrawal of his admission of guilt, the prosecutor repeatedly characterized it as a plea of guilty to selling drugs and further emphasized its impact by asking the defendant whether he lied when he entered that plea. In introducing the subject of the withdrawn plea, particularly in the misleading fashion displayed in this case, the prosecutor impermissibly committed basic and prejudicial error, the appellate court concluded.
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