1997 -NMSC- 40, State v. Vallejos

• Decision Date: 28 July 1997
• Docket Number: No. 23775,23775
• Citation: 945 P.2d 957,1997 NMSC 40,123 N.M. 739
• Parties: , 1997 -NMSC- 40 STATE of New Mexico, Plaintiff-Respondent, v. Vincent VALLEJOS, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 957

945 P.2d 957

123 N.M. 739, 1997 -NMSC- 40

STATE of New Mexico, Plaintiff-Respondent, v. Vincent VALLEJOS, Defendant-Petitioner.

No. 23775.

Supreme Court of New Mexico.

July 28, 1997.

[123 N.M. 740] T. Glenn Ellington, Chief Public Defender, Bruce Rogoff, Appellate Defender, Santa Fe, for Petitioner.

Tom Udall, Attorney General, Joel Jacobsen, Joan M. Waters, Assistant Attorneys General, Santa Fe, for Respondent.

Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Mark H. Donatelli, Santa Fe, Stout & Winterbottom, Michael Stout, Roswell, Michael W. Lilley, Las Cruces, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.

OPINION

MINZNER, Justice.

¶1 Defendant Vincent Vallejos was convicted for possession of a controlled substance under NMSA 1978, § 30-31-23 (1989), after he bought a quantity of crack cocaine from an undercover police officer during the course of a "reverse sting operation." On review by the Court of Appeals, Vallejos claimed, inter alia, that the trial court erred in ruling that there was no objective entrapment as a matter of law and in refusing to instruct the jury on objective entrapment. See State v. Vallejos, 1996 NMCA 086, p 2, 122 N.M. 318, 320, 924 P.2d 727, 729 (Ct.App.), cert. granted, 122 N.M. 112, 921 P.2d 308 (1996). The Court of Appeals affirmed the conviction and held, inter alia, that "predisposition generally still has a place in the New Mexico law of objective entrapment," 1996 NMCA 086, p 1, 122 N.M. at 320, 924 P.2d at 729, and that proper police standards are to be determined by the trial court as a question of law. We granted certiorari to consider whether the jury or the trial court should determine proper police standards and whether predisposition has a role in objective entrapment.

¶2 The judgment of the Court of Appeals is affirmed in part and reversed in part. While we affirm Vallejos's conviction, we hold that when a defendant asserts the defense of objective entrapment, the factfinder decides whether police conduct created a substantial risk that an ordinary person would have been caused to commit the crime (a factual issue) and that the trial court decides as a matter of law whether police conduct exceeded the standards of proper investigation (a normative ¹ issue). We also hold that in the context of the factual inquiry, a defendant's predisposition is not relevant; however, in the context of the normative inquiry, if a defendant raises the issue of predisposition, then the trial court may consider it. Furthermore, we hold that entrapment, whether subjective or objective, involves matters of due process under Article II, Section 18 of the New Mexico Constitution. ²

I. FACTS

¶3 The Albuquerque Police Department set up a reverse sting operation in an Albuquerque neighborhood believed to be a focal point for trafficking in illegal drugs. The District Court authorized a release of one ounce of crack cocaine from the police department's evidence locker to be used in the operation. Officers posed as street sellers to potential buyers who were escorted to a nearby apartment where another officer posed as a drug dealer.

¶4 Vallejos approached an undercover officer on the street and asked if he was a police officer. When the officer responded that he was not, Vallejos offered to exchange a car stereo for a quantity of crack cocaine. The officer agreed and Vallejos left to retrieve the stereo. Upon Vallejos's return with the car stereo, the officer escorted him to the apartment where Vallejos showed the stereo to another officer and bargained for a larger amount of cocaine. The officer agreed to sell Vallejos the larger amount, exchanged the crack cocaine for the car stereo, and immediately arrested him for felony possession of a controlled substance.

II. DISCUSSION

¶5 In State v. Fiechter, 89 N.M. 74, 547 P.2d 557 (1976), this Court adopted the subjective standard in cases of entrapment. Under this standard, "the focal issue is 'the intent or predisposition of the defendant to commit the crime.' " Id. at 77, 547 P.2d at 560 (quoting United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). Subjective entrapment occurs "when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932), quoted in Fiechter, 89 N.M. at 76, 547 P.2d at 559. If a defendant was predisposed to commit the crime and the police merely gave the opportunity to commit the crime, then the subjective defense fails. This was the state of entrapment law in New Mexico prior to Baca v. State, 106 N.M. 338, 742 P.2d 1043 (1987).

A. Recognition of Objective Entrapment in Baca v. State

¶6 In Baca, 106 N.M. at 340, 742 P.2d at 1045, we recognized the defense of objective entrapment to compensate for a critical shortcoming of the subjective entrapment defense. Under the rule in Fiechter, a predisposed defendant who was merely given the opportunity to commit the crime by the police could not successfully assert the defense of entrapment; he or she could not assert the defense even if police conduct either exceeded the standards of proper investigation or would have ensnared one who was not predisposed. In Baca, we retained the subjective defense as articulated in Fiechter, supplemented it with the objective defense, and allowed defendants to assert either or both:

[A] criminal defendant may successfully assert the defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation, as here where the government was both the supplier and the purchaser of the contraband and defendant was recruited as a mere conduit.

-106 N.M. at 341, 742 P.2d at 1046.

¶7 While Baca succeeded in establishing an appropriate remedy where "police exceeded the standards of proper investigation," id., it left a number of questions unanswered. First, it provided no guidance as to the content of the standards of proper police conduct in undercover operations other than that police should not instigate crime by setting up "circular transactions." State v. Sheetz, 113 N.M. 324, 326, 825 P.2d 614, 616 (Ct.App.1991) (analyzing Baca ). Second, it did not delineate relative functions of judge and jury in assessing police conduct. Third, it did not expressly address whether a defendant's predisposition is relevant when he or she asserts the objective defense, though it implied that it was not. See Baca, 106 N.M. at 340-41, 742 P.2d at 1045-46. And fourth, Baca did not address whether the defense of entrapment, either in its subjective or objective forms, raises issues of due process. ³ Id. ¶8 Each of these unanswered questions now requires answering in order to place the law of entrapment in New Mexico on firmer ground. See Vallejos, 1996 NMCA 086, p 1, 122 N.M. at 320, 924 P.2d at 729 (noting need for clarification); cf. Buretta, supra note 1, at 1947 (observing that the federal analogues of New Mexico's subjective and objective entrapment doctrines require clarification). We do so with the benefit of several Court of Appeals decisions since Baca. See Sheetz, 113 N.M. at 328-29, 825 P.2d at 618-19 (recognizing that objective entrapment involves the question whether police conduct "offends our notions of fundamental fairness"); State v. Gutierrez, 114 N.M. 533, 535-36, 843 P.2d 376, 378-79 (Ct.App.1992) (following Sheetz ); State v. Sellers, 117 N.M. 644, 647-48, 875 P.2d 400, 403-04 (Ct.App.1994) (analyzing New Mexico objective entrapment jurisprudence and explaining a jury instruction proposed inSheetz ).

B. Distinction between Factual and Normative Inquiries within Objective Entrapment

¶9 In State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (1972) ⁴, an entrapment case rendered prior to Baca, this Court recognized that entrapment might occur in three distinct contexts:

When the state's participation in the criminal enterprise reaches the point where it can be said that except for the conduct of the state a crime would probably not have been committed or because the conduct is such that it is likely to induce those to commit a crime who would normally avoid crime, or, if the conduct is such that if allowed to continue would shake the public's confidence in the fair and honorable administration of justice, this then becomes entrapment as a matter of law.

Sainz, 84 N.M. at 261, 501 P.2d at 1249. The first of these describes subjective entrapment. See, e.g., Fiechter, 89 N.M. at 77, 547 P.2d at 560; see also UJI 14-5160 NMRA 1997, p 3. Our Court of Appeals has characterized the second situation as objective entrapment. See, e.g., Sellers, 117 N.M. at 647-48, 875 P.2d at 403-04; see also UJI 14-5160, p 4. The third scenario has also been implicitly recognized as objective entrapment. See Baca, 106 N.M. at 339-41, 742 P.2d at 1044-46 (reversing conviction where "police exceeded the standards of proper investigation" without examining what an ordinary person would have been caused to do); Sheetz, 113 N.M. at 328-30, 825 P.2d at 618-20 (quoting Sainz and reversing conviction where police tactics were found to "offend our notions of fundamental fairness").

¶10 While the law of entrapment in New Mexico is divided at present into subjective entrapment and two branches of objective entrapment, the distinctions between these varieties of the entrapment defense have not always been clearly recognized. See, e.g., Gutierrez, 114 N.M. at 535, 843 P.2d at 378; Sheetz, 113 N.M. at 329, 825 P.2d at 619. This case allows us the opportunity to bring clarity to the law of entrapment in New Mexico. We therefore now recognize that objective entrapment has two distinct components, one factual and the other normative.

¶11 Earlier...