One common example is a controlled drug buy, where an officer furthers an investigation by recruiting a confidential informant and directing that informant to purchase drugs from a suspected drug dealer. Quite often, that practice involves selecting a prior customer of the dealer as an informant—that prior customer, unlike the officer, may be known to or trusted by the dealer and may therefore be able to obtain an invitation into the dealer’s house, or another private space, necessary to complete the transaction.In Lewis , the Supreme Court held that "[a] government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant," 385 U.S. at 211, 87 S.Ct. 424, a statement that we endorsed in State v. Leppanen , 253 Or. 51, 53, 453 P.2d 172 (1969). "You have to tell me if you’re a cop" is the demand of a criminal about to slip up, not a principle of constitutional law.
It is not error for a trial court to refuse to give a requested instruction if the instruction given by the court, although not in the form requested, adequately covers the subject of the requested instruction. State v. Leppanen, 253 Or. 51, 53, 452 P.2d 172 (1969). See also Laubach v. Industrial Indemnity Co., 286 Or. 217, 225, 593 P.2d 1146 (1979) (not error for trial court to refuse to give requested instructions that are given in substance or that are merely enlargements on instructions given).
Id. See also, State v. Hollins, 533 S.W.2d 231, 233 (Mo.App. 1975); State v. Leppenen, 453 P.2d 172 (Ore. 1969). The purchased cocaine was therefore not inadmissible under the Fourth Amendment.
Defendant argues that the court erred in not giving his proposed instructions that were charge-specific and designed to inform the jury that, in order to convict, at least 10 of the jurors had to agree that defendant had committed the same act. A trial court has discretion regarding the phrasing of instructions, and the court is not required to give them in the form requested. State v. Leppanen, 253 Or. 51, 53, 453 P.2d 172 (1969). The court did not abuse its discretion in refusing the requested instructions here.
The instruction adequately informed the jury that it had to find that defendant acted intentionally when he attempted to put Keeney in fear of imminent physical injury. See State v. Leppanen, 253 Or. 51, 453 P.2d 172 (1969); see also State v. Shaw, 68 Or. App. 693, 697, 684 P.2d 7 (1984). In his fourth assignment, defendant contends that the court erred by not suppressing all statements he made after his arrest.
A trial court is obligated to give jury instructions on all issues arising from the evidence and to present the defendant's theory of the case, if that theory is supported by evidence, State v. Jennings, 131 Or. 455, 282 P. 560 (1929); State v. McWilliams, 29 Or. App. 101, 106, 562 P.2d 577, rev den 279 Or. 1 (1977), but is not required to give requested instructions if those given adequately cover the same subject. State v. Leppanen, 253 Or. 51, 453 P.2d 172 (1969); Stovall v. Perius, 61 Or. App. 650, 658, 659 P.2d 393, rev den 294 Or. 792 (1983). The question in this case is whether the instructions that the trial court gave adequately cover the subject proposed in defendants' requested instruction.
The court is obligated to give jury instructions on all issues arising from the evidence and to present a defendant's theory of the case, if that theory is supportable by the evidence, State v. Jennings, 131 Or. 455, 282 P. 560 (1929); State v. McWilliams, 29 Or. App. 101, 106, 562 P.2d 577, rev den 279 Or. 1 (1977), but is not required to give requested instructions specifically if different instructions adequately cover the same subject. State v. Leppanen, 253 Or. 51, 452 P.2d 172 (1969); State v. McWilliams, supra, 29 Or App at 106. The question in this case is whether the instruction that the trial court gave adequately covers the subject proposed in defendant's requested instruction.
Accordingly, the trial court could only refuse to give it if it otherwise adequately covered the same subject in other instructions. State v. Leppanen, 253 Or. 51, 53, 453 P.2d 172 (1969); State v. McWilliams, 29 Or. App. 101, 106, 562 P.2d 577 rev den (1977). Defendant's requested instruction included the following:
State v. Jennings, 131 Or. 455, 282 P. 560 (1929); State v. Forsyth, 20 Or. App. 624, 533 P.2d 176, Sup Ct review denied (1975); State v. Ollison, 16 Or. App. 544, 519 P.2d 393 (1974); State v. Suggs, 13 Or. App. 484, 511 P.2d 405 (1973).State v. Leppanen, 253 Or. 51, 453 P.2d 172 (1969); State v. Gaylor, 19 Or. App. 154, 527 P.2d 4 (1974); State v. Stark, 7 Or. App. 145, 490 P.2d 511 (1971). In his second assignment of error defendant contends that the court erred in giving the state's requested instructions on assault in the first degree and assault in the second degree committed recklessly, arguing that the state failed to present any evidence probative of the essential fact that Mr. Rhodes had suffered a "serious physical injury" — i.e., an injury "which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."
All that is required is an adequate instruction by the trial court which fairly covers the requested subject. State v. Smallwood, 5 Or. App. 245, 481 P.2d 378, Sup Ct review denied (1971); State v. Leppanen, 253 Or. 51, 453 P.2d 172 (1969); Ballou v. Blitz-Weinhard, 246 Or. 179, 424 P.2d 225 (1967). * * *" 7 Or App at 151. Furthermore, given the overwhelming evidence of defendant's intoxication, we find no conceivable prejudice in any event.