Evans v. People

• Decision Date: 30 September 1985
• Docket Number: No. 83SC451,83SC451
• Citation: 706 P.2d 795
• Parties: Charles Nolan EVANS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 795

706 P.2d 795

Charles Nolan EVANS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 83SC451.

Supreme Court of Colorado En Banc.

Sept. 30, 1985.

David F. Vela, Colorado State Public Defender, Terri L. Brake and Shelley Gilman, Sp. Deputy State Public Defenders, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Enforcement Section, Denver, for respondent.

LOHR, Justice.

We granted certiorari to review the Colorado Court of Appeals' unpublished opinion in People v. Evans, No. 81CA1242. At issue in this criminal case is the trial court's instruction on the affirmative defense of entrapment. The court of appeals rejected the defendant's challenge to the instruction, holding that the addition to CJI-Crim. 7:10 of language from our opinion in Bailey v. People, 630 P.2d 1062 (Colo.1981), interpreting the entrapment defense was not misleading, confusing, or an incorrect statement of the law. We reverse the judgment of the court of appeals.

In 1980, Charles Evans and his girlfriend, Dierdre Dooley, were charged with dispensing a dangerous drug, possession of a dangerous drug with intent to dispense, and conspiracy to dispense a dangerous drug. §§ 12-22-404 and 12-22-412, 5 C.R.S. (1978); § 18-2-201, 8 C.R.S. (1978). ¹ Dooley pleaded guilty to lesser offenses, but Evans was tried to a jury and convicted on the charges originally filed. He was sentenced to concurrent terms of imprisonment of two years for conspiracy and three years for each of the other offenses. At his trial, Evans unsuccessfully contended that the procedure that led to his arrest and conviction constituted entrapment.

Evans was arrested in Steamboat Springs, Colorado, following an undercover investigation conducted by two federal drug enforcement agents, Larry Lamberson and Richard Barrett, working with Tony Cornelius, a paid informant. Dooley and Evans testified that in early April of 1980, they were living in a house in the Steamboat Springs area with a roommate, Tom Piscotti. Dooley worked as a cocktail waitress in a local bar, and Evans often spent evenings there. According to Dooley and Evans, Lamberson and Cornelius began to frequent the bar and on several occasions asked Dooley if she knew where they could purchase drugs. Dooley responded that she did not.

On April 5, 1980, the heat was turned off in the house shared by Dooley, Evans and Piscotti because they were unable to pay their gas bill. Evans had a bad cold. Dooley testified that on the next day, April 6, she mentioned to Lamberson and Cornelius in the bar that her residence lacked heat, and Lamberson suggested that if Dooley were to sell him some LSD for his brother in Texas, she could make some money to pay her gas bill. That evening, when Evans arrived at the bar, Dooley introduced him to Lamberson, and Lamberson repeated his proposal, offering to lend Evans his truck and provide the front money if Evans would sell him 1,000 "hits" of LSD (squares of paper saturated with the drug). According to Evans and Dooley, Evans refused the offer, but that did not deter Lamberson, who called them at home between 2:30 and 3:30 a.m. stating that he still wished to purchase the drugs. Evans told Lamberson never to call him again in the middle of the night.

Lamberson phoned Evans' home more than once on April 7, leaving messages for him with Piscotti. On April 8, Dooley and Evans began to argue about whether to accept Lamberson's proposal. According to Dooley, she wanted Evans to get the drugs for Lamberson because the gas was turned off, the house was cold, and she was afraid her exotic pet bird would die. Evans was reluctant, but eventually agreed to try to obtain the drugs.

On April 8, Evans met with Lamberson, who gave him $1,500 in cash. Evans and Dooley drove directly to the gas company and used $238 of the money to pay their bill. They then drove to Boulder. There, Dooley waited in a bar while Evans, who had spent one semester as a student in Boulder, went to several other bars until he found someone who agreed to arrange a sale of LSD. Evans bought approximately 950 hits of LSD. He testified that he knew what the drug looked like because he had seen it in high school, but had never before sold or used LSD. He did admit using cocaine. Evans returned with Dooley to Steamboat Springs that night and gave the LSD to Lamberson the next day, April 9. Evans, Dooley and Piscotti were subsequently arrested.

Agent Lamberson's description of how the events transpired differed significantly. Lamberson testified that Evans had agreed to obtain the drugs when the two met in the bar on April 6. Evans told Lamberson that he had been selling drugs and had bought LSD from persons in Boulder many times before. Lamberson did not recall ever calling Evans at home. In addition, Lamberson testified that when Evans delivered the LSD to Lamberson, Evans noted that he was fifty hits short of the agreed 1,000 and offered to compensate for the deficiency on a future transaction.

The controversy at trial thus concerned whether Evans had been entrapped by the actions of the federal Drug Enforcement Administration agents. The trial court gave the following instruction on the defense of entrapment:

It is an affirmative defense to the crimes of dispensing a dangerous drug, possession of a dangerous drug with intent to dispense, and conspiracy to dispense a dangerous drug, that the defendant engaged in the prescribed [sic] 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 such 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.

You are instructed that the defendant's predisposition to commit the crime, rather than the conduct of the police, is the dispositive factor in determining whether entrapment has occurred. Merely providing an opportunity for a person to violate the law in [sic] not entrapment. And this is true even when the agent or police initiates the contact for the purchase of the drugs.

The first paragraph of this instruction, patterned after CJI-Crim. 7:10, is essentially the same as the proposed instruction submitted to the trial court by the defense. ² It is the second paragraph, taken from Bailey v. People, 630 P.2d 1062 (Colo.1981), to which Evans has objected, because, he argues, it removes an element of the offense that the prosecution would otherwise be required to prove. By stating that "the defendant's predisposition ... is the dispositive factor," Evans contends that the instruction allowed the jurors to ignore the conduct of law enforcement officials. In a short opinion, the court of appeals rejected the defendant's arguments and concluded that the instruction was not erroneous, misleading or confusing. We disagree with this holding.

The defense of entrapment is defined in section 18-1-709, 8 C.R.S. (1978), which states:

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.

In Bailey v. People, 630 P.2d 1062 (Colo.1981), we determined that Colorado's entrapment statute created a subjective test, not an objective one. An objective test for entrapment would focus on the propriety of methods used by police as measured by generalized standards, and not on the character or propensities of an individual defendant. In contrast, a subjective test is concerned with the state of mind of a particular defendant, and does not set general standards for police conduct. 630 P.2d at 1065 n. 5. Consistent with this latter test, we held that the expression "a person" in section 18-1-709 refers to the defendant charged in the particular case under consideration. In concluding that the Colorado statute, like the New York statute upon which it was patterned, enacted a subjective test of entrapment, we noted that "[t]he defendant's predisposition to commit the crime, rather than the conduct of the government agent, remains the dispositive factor in determining whether entrapment has occurred." 630 P.2d at 1067. ³ It is this language that the trial court incorporated in its instruction to the jury concerning Evans' defense of entrapment. Although this quote is a correct statement within the context in which it appears in the Bailey opinion, when taken out of context and used in a jury instruction, it is misleading.

Based upon a reading of the entrapment statute, together with our holding in Bailey v. People that the term "a person" in that statute refers to the defendant, we determine that the entrapment defense consists of the following elements: (1) the defendant must be a person who, but for the inducement offered, would not have conceived of or engaged in conduct of the sort induced, (2) the defendant must in fact have engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other...