Luna v. State

LUMPKIN, Vice-Presiding Judge,

concur in results:

I concur in the results reached by the Court in this case, however, I question the discussion of due process applicability to the facts of this case.

The Court in the dicta of the case refers to a generic “due process” consideration without discussing whether it seeks to apply the literal procedural due process provisions of the Oklahoma and Federal Constitutions or the more illusive concept of “substantive due process”.

In the first part of the allegation of error, Appellant objects to admissibility of testimony relating statements of Appellant to the State’s informant, Irene Price. While Appellant seeks to address this testimony in the context of his right to due process and a fair trial, it is more appropriately analyzed pursuant to the provisions of the Oklahoma Evidence Code. 12 O.S. 1981 , § 2101 et seq. The testimony must be analyzed as to relevancy, Section 2401, notice, Section 2404 as defined by Burks v. State, 594 P.2d 771 (Okl.Cr.1979), and prejudicial versus probative value, Section 2403. Appellant does not raise the issue of failure to receive notice, which is a tenet of procedural due process. Therefore, the question is whether the evidence comports with this Court’s prior decisions defining common scheme or plan evidence and whether the evidence is more probative than prejudicial. In this case, the Court properly finds the prior offenses were not connected to the current offense and therefore were not admissible.

The second allegation attempts to raise a due process argument of a more substantive nature. Basically, Appellant argues it just wasn’t fair for the police to utilize an informant to obtain the evidence used against him. In effect, he asks the Court to adopt a rigid type of Marquis of Queens-berry set of rules for law enforcement officers in the performance of their duties. However, the Court in United States v. Russell, 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973), in dealing with a similar issue, stated that the defense of entrapment is not intended “to give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve. The execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.” 411 U.S. at 435 , 93 S.Ct. at 1644 . The U.S. Supreme Court, in a split decision, has recognized the possibility of this type of defense but, at the same time, recognized the cases will be rare where the concept could be applied. See Hampton v. United States, 425 U.S. 484 , 495 n. 7, 96 S.Ct. 1646 , 1653 n. 7, 48 L.Ed.2d 113 (1976); See also United States v. Payner, 447 U.S. *75 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980) reh. denied 448 U.S. 911 , 101 S.Ct. 25 , 65 L.Ed.2d 1172 ; United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied 464 U.S. 908 , 104 S.Ct. 264 , 78 L.Ed.2d 247 (1983). The Courts recognizing the possibility of the defense, as recognized in Hampton , define it narrowly and often restrict its application to those cases involving coercion, violence or brutality to the person. See Commonwealth v. Shuman, 391 Mass. 345 , 462 N.E.2d 80 (1984). The facts of this case do not remotely approach the threshold showing this possible defense would require.