Bailey v. People

Decision Date01 June 1981
Docket NumberNos. C-1781,79SC12,s. C-1781
Citation630 P.2d 1062
PartiesGlen Barrington BAILEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Charles Allen HERNANDEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Shelley B. Don, Denver, for petitioner Bailey.

Alfred C. Harrell, Denver, for petitioner Hernandez.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Sarah Scott Sammons, Asst. Atty. Gen., Denver, for respondent.

DUBOFSKY, Justice.

We granted two petitions for certiorari to review the court of appeals' decision in People v. Bailey and Hernandez, 41 Colo.App. 385, 590 P.2d 508 (1978). The defendants, Glen Barrington Bailey and Charles Allen Hernandez, who were convicted of sale and conspiracy to sell narcotics, argue that they were entrapped by law enforcement officials, that the conduct of the officials constituted duress, and that they were merely "procuring agents" for the officials who bought the narcotic drugs. In a trial to the court, the judge found that the evidence of entrapment and duress did not create a reasonable doubt as to the guilt of the defendants. 1 The court of appeals affirmed the district court convictions, and we affirm the opinion of the court of appeals.

As part of a Colorado Bureau of Investigation inquiry into the sale of drugs at Denver Juvenile Hall, a special operator for the C.B.I., Rick Hampton, posed as a Metropolitan State College student assisting the Juvenile Hall Recreation Supervisor. In late January, 1976, Hampton discussed the availability of drugs with the defendant Bailey, then a youth counselor at Juvenile Hall. Bailey told Hampton that he could obtain any drugs Hampton wanted. On February 2, 1976, Hampton informed Bailey that he was working for an East coast Mafia chieftain named Nick Bonelli, who was in Denver to take over the illegal drug traffic in Colorado penal institutions. Unknown to Bailey, Bonelli was, in fact, C.B.I. agent Kenneth Brown.

Hampton arranged a meeting between Bailey and Brown on February 6th at Bailey's home. Brown intimated to Bailey that his Eastern Mafia bosses were pressuring him to establish a foothold in the drug business as quickly as possible, and he asked Bailey if he could obtain large amounts of narcotics. Bailey replied that he could, and Brown requested samples of cocaine and marijuana. Brown also conveyed the impression that Brown's Mafia colleagues took care of "snitches."

Bailey delivered the samples of cocaine and marijuana to Brown later that day and received payment for them. During the next several days, Brown telephoned Bailey several times, telling Bailey that he was under considerable pressure to obtain a sample of heroin. On February 11, 1976, they met at a Howard Johnson's motel where Brown and Bailey discussed Bailey's potential role in taking over the drug traffic in Colorado's penal institutions. The conversation was recorded on a hidden microphone. Bailey told Brown that he would obtain a sample of heroin.

Late that evening, Bailey contacted the defendant Hernandez, also a youth counselor at Juvenile Hall, and asked him for assistance in finding a sample of heroin. Hernandez obtained a sample with the assistance of Shirley Veldez. 2 Hernandez delivered the sample to Bailey, and Bailey, in turn, delivered it to Brown the following day.

On February 13th, Bailey, Brown, and another C.B.I. agent, posing as the "family" accountant, met in a parked car to discuss the price of heroin and cocaine purchased in large quantities. Brown showed Bailey $100,000.00 in cash. Three days later, Hernandez, Bailey, and Brown met at Bailey's home. Hernandez told Brown that the heroin sample had come from his "connection," Shirley Veldez. Later that day, Hernandez delivered a second sample of heroin to Brown in Bailey's presence. Brown paid Hernandez for the sample.

On February 17th Brown met with Bailey, Hernandez and Veldez at Bailey's home, showed Veldez $35,000.00 in cash, promised to help her with a modeling career, and offered to arrange a trip to Florida for her. Veldez told Brown that she had furnished both samples of heroin to Hernandez for delivery to Brown. She also told Brown that the delivery of additional samples of heroin depended upon payment of a debt she owed to her "connection" in Pueblo. On February 18th, Brown telephoned Veldez to arrange the purchase of a third heroin sample. He paid her for the sample when she delivered it later in the day. The defendants were arrested the next day.

At trial, the defendants admitted participation in the drug transactions, but denied their guilt of the offenses alleged on the grounds that the C.B.I. agents' conduct amounted to entrapment and duress. The trial court characterized the defendants' statements to Brown attesting to their familiarity with drugs and their intent to provide him with large quantities of drugs as "puffing" overtures calculated to determine the nature and extent of Brown's activities in drug traffic; just as Brown masqueraded as a professional criminal to ascertain the defendants' willingness to engage in illegal drug activities, the defendants masqueraded as persons having access to large amounts of illegal drugs.

The trial court found Bailey guilty of sale of cocaine and of dispensing a dangerous drug on February 6, 1976 and Bailey and Hernandez guilty of sale of heroin on February 12th, guilty of sale of heroin on February 16th, and guilty of conspiracy to sell narcotic drugs, all under section 12-22-302, C.R.S. 1973 (1978 Repl. Vol. 5). 3 The court rejected the defendants' entrapment defense, finding that the deception practiced by the C.B.I. simply furnished the defendants with an opportunity to engage in illegal drug sales and that the defendants knowingly and willingly took advantage of this opportunity. It also found, beyond a reasonable doubt, that the offenses committed by the defendants had not been procured by duress or unconstitutional police conduct.

The court of appeals upheld the trial court's findings rejecting defendants' entrapment and duress offenses. In so doing, it interpreted the entrapment statute as a codification of prior Colorado case law holding that there is no entrapment if the defendant was predisposed to commit the crime. We agree with the court of appeals' construction of the statute and find support in the record for the defendants' convictions.

I.

Entrapment is defined in section 18-1-709, C.R.S. 1973 (1978 Repl. Vol. 8):

"The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used."

Under section 18-1-710, C.R.S. 1973 (1978 Repl. Vol. 8) entrapment is an affirmative defense which is to be submitted to the trier of fact. Once the defendant has presented credible evidence on the issue, the prosecution must prove beyond a reasonable doubt that no entrapment has occurred. Section 18-1-407(2), C.R.S.1973 (1978 Repl. Vol. 8); People v. Sanchez, 40 Colo.App. 552, 580 P.2d 1270 (1978).

Defendants contend that the court of appeals misconstrued section 18-1-709. Emphasizing the statutory language exculpating a defendant who commits otherwise criminal acts if "induced to do so by a law enforcement official" and if "the methods used ... were such as to create a substantial risk that the acts would be committed ....", the defendants argue that the statute enacts the "objective test" of entrapment propounded by minority opinions of the United States Supreme Court. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), a majority of the Court based the availability of the entrapment defense on evidence that the defendant was not predisposed to commit the act alleged; a minority of the Justices, however, grounded the defense on the methods used by government agents to induce the defendant to commit the act. 4 The majority approach has been described as a "subjective" test of entrapment; the minority approach as an "objective" test. 5 See People v. Adler, Colo., 629 P.2d 569 (1981) (In Adler it was unnecessary to decide whether section 18-1-709 embodied the subjective or objective test because the evidence failed to establish entrapment under either approach).

Since the defense of entrapment is not of constitutional stature, states are free to define it as they choose. Most states have adopted the subjective approach. State v. Ford, Minn., 276 N.W.2d 178 (1979); Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979); State v. Hanson, 278 N.W.2d 198 (S.D.1979); Lewandowski v. State, Ind., 389 N.E.2d 706 (1979); State v. Dickinson, 370 So.2d 762 (Fla.1979); but see People v. Barraza, 23 Cal.3d 675, 591 P.2d 947, 153 Cal.Rptr. 459 (1979); State v. Folk, 278 N.W.2d 410 (N.D.1979); Pascu v. State, 577 P.2d 1064, 1065 (Alaska 1978). 6 On the other hand, commentators generally favor the objective test. See, e. g., the authorities cited in People v. Barraza, supra, 23 Cal.3d at 688, 591 P.2d at 954-955, 153 Cal.Rptr. at 466-467. 7 The commentators have likened the entrapment controversy to the debate over the...

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