Appeal from Circuit Court, Multnomah County. Pat Dooley, Judge. No. C 72-10-3424 Cr.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendant was convicted after a jury trial of criminal activity in drugs. ORS 167.207. He appeals, asserting that the trial court erred both in denying a pretrial motion to suppress certain identification
testimony, and in refusing to give a requested jury instruction on the defense of entrapment.
We affirm the trial court.
The relevant facts are as follows: Late on the afternoon of October 6, 1972, Special Agent Horn, of the Federal Bureau of Narcotics and Dangerous Drugs, received a call from an informer. Agent Horn was then operating as an undercover agent investigating narcotics traffic in Portland. The informer told Agent Horn that a heroin sale had been arranged, and gave the agent the address of an apartment in North Portland.
Agent Horn went to the apartment and waited some few minutes before the informer, the defendant, and another individual, identified in the record only as "Dick," all arrived together. The informer introduced the agent to the defendant, and then the informer and "Dick" went into another room.
Agent Horn told the defendant of his interest in buying some heroin. The defendant asked how much the agent wanted, and Agent Horn, not knowing what quantity of heroin the defendant had, requested only two bags.
The defendant then pulled a large balloon from his pocket, handed the agent two bags of heroin, and received $20 in return. Agent Horn testified that the large balloon contained "several" smaller balloons. Agent Horn also said that he would have asked the defendant for more heroin had he known in advance that the defendant had more than two bags.
A few minutes later all the parties left the apartment. The defendant and Agent Horn ...