Foster v. State, 32904.

• Decision Date: 04 December 2000
• Docket Number: No. 32904.,32904.
• Parties: Troy Anthony FOSTER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

13 P.3d 61

116 Nev. 1088

Troy Anthony FOSTER, Appellant, v. The STATE of Nevada, Respondent.

No. 32904.

Supreme Court of Nevada.

December 4, 2000.

Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender, and Vaun B. Hall, Deputy Public Defender, Washoe County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

AGOSTI, J.

The issues in this appeal concern the defense of entrapment. A jury found appellant Troy Anthony Foster guilty of unlawful sale of a controlled substance after Foster sold crack cocaine to an undercover officer. On appeal, Foster contends that: (1) he was entrapped as a matter of law because the undercover officer did not have reasonable cause to believe Foster was predisposed to sell drugs before approaching him; (2) the district court did not properly instruct the jury on the defense of entrapment; and (3) the district court erred by admitting evidence of his eight-year-old conviction for possession of a controlled substance on the issue of his predisposition to commit the instant offense.

To the extent that our prior case law required police to have reasonable cause to believe an individual is predisposed to commit a crime before targeting that individual in the context of an undercover operation, it is overruled. Therefore, we conclude that Foster was not entrapped as a matter of law. We further conclude that the district court properly instructed the jury on the defense of entrapment. Finally, we conclude that testimony concerning the circumstances of Foster's prior conviction for possession of a controlled substance was properly admitted to prove his predisposition to commit the charged offense.

FACTS

The Consolidated Narcotics Unit ("CNU")¹ received complaints from police officers, casino managers and tourists about black males selling crack cocaine in the area of Second Street and Virginia Street in downtown Reno, Nevada. In response to these complaints, the CNU conducted a "buy program" to apprehend the drug dealers.

A female undercover officer walked in the targeted area in an attempt to purchase crack cocaine from black males.² The officer made eye contact with Foster, a black male, who was standing with four other men. The officer asked Foster, "Got forty?" Apparently, this is the street vernacular for asking someone if they have forty dollars worth of crack cocaine for sale. Foster approached the officer and asked her what she wanted. The officer repeated, "Got forty?" Foster then told her to "walk this way." After Foster and the officer walked approximately fifteen to twenty feet, Foster spat out a bag containing crack cocaine into his hands and gave it to the officer. The officer gave Foster forty dollars, and they separated. Other CNU officers subsequently arrested Foster.

At trial, Foster argued that he was entrapped because the CNU did not have reasonable cause to believe Foster was predisposed to sell drugs before approaching him. Following a two-day trial, a jury convicted Foster of unlawful sale of a controlled substance.

DISCUSSION

Reasonable cause requirement

Relying on Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985), Foster contends that he was entrapped as a matter of law. He argues in the alternative that the district court failed to properly instruct the jury on the law of entrapment. His identification of these issues causes us to critically review our case law concerning the entrapment defense.

As we have often recognized, entrapment is an affirmative defense. See id. at 504, 706 P.2d at 837. The defendant bears the burden of producing evidence of governmental instigation. See id. Once the defendant puts forth evidence of governmental instigation, the State bears the burden of proving that the defendant was predisposed to commit the crime. See id. "Essentially, the defendant bears the burden of production on the first element, while the prosecution subsequently bears the burden of proof on the second element." Id. at 504, 706 P.2d at 837-38. We do not modify this two-part inquiry, which is well settled. We do, however, abandon the rule enunciated in Shrader that "when the police target a specific individual for an undercover operation, they must have reasonable cause to believe that the individual is predisposed to commit the crime." Id. at 501-02, 706 P.2d at 836.

More recently, this court reiterated that "[i]n Nevada, a person's predisposition to commit a crime must be evident before he is targeted, and the authorities must possess `reasonable cause to believe the individual is predisposed to commit the crime.'" Roberts v. State, 110 Nev. 1121, 1132 n. 7, 881 P.2d 1, 8 n. 7 (1994) (quoting Shrader, 101 Nev. at 502, 706 P.2d at 836) (emphasis added).

Generally, other jurisdictions have readily rejected a reasonable cause requirement.³ See, e.g., United States v. Aibejeris, 28 F.3d 97, 99 (11th Cir.1994)

; see generally Paul Marcus, The Entrapment Defense § 8.04 (2d ed.1995). As the court explained in United States v. Catanzaro, 407 F.2d 998, 1001 (3d Cir.1969), "[t]he basic question in an alleged entrapment case is whether the accused was ready and willing to commit the crime if an opportunity should be presented .... No significant purpose would be served by a further showing of [the police agent's] reason for approaching him."

Nevada is in the minority if not the only remaining jurisdiction that imposes a requirement of reasonable cause to believe an individual is predisposed to commit a crime before he or she can be targeted in an undercover operation. Applying this unique requirement to the facts of this case would require us to reverse Foster's conviction because in reality the officer had no reasonable cause to suspect Foster was predisposed to sell drugs before she approached him with her question, "Got forty?" Yet, the police conduct in this case was not unreasonable. Nor can it be characterized as overreaching. Application of the rule to these facts does nothing to deter police misconduct. As can be seen from the facts of this case, adherence to the reasonable cause requirement has the undesirable effect of hampering members of law enforcement in fulfilling their legitimate roles of detecting and preventing criminal activity. We certainly do not condone overreaching or other improper conduct by the police in carrying out their responsibilities. However, we believe the well-settled law of entrapment, which requires the defendant to show evidence of police initiated activity and a consequential showing by the State of the defendant's criminal predisposition, is sufficient protection against the possibility of police excess.

We now believe that the reasonable cause requirement is unnecessary to further the policy supporting the use of the entrapment defense. As this court explained:

The entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as a prophylactic device designed to prevent police misconduct. "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime."

Shrader, 101 Nev. at 501, 706 P.2d at 835 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)). We conclude that the reasonable cause requirement unduly restricts reasonably designed police undercover operations implemented to ferret out crime. In the instant case, the CNU conducted the "buy program" in response to a specific problem occurring in downtown Reno. The CNU did not manufacture Foster's crime. We believe that the reasonable cause requirement is unwarranted as a prophylactic device to prevent police misconduct.

Jury instructions on entrapment

Foster also contends that the district court erroneously instructed the jury in regard to his entrapment defense. The record indicates that the district court properly instructed the jury on the defense of entrapment.⁴ We take this opportunity, however, to separately comment on Instruction No. 19, which instructed the jury to consider specific factors in determining whether Foster was predisposed to sell drugs. Instruction No. 19 stated:

Five factors are relevant in determining predisposition:

(1) the character of the defendant;

(2) who first suggested the criminal activity;

(3) whether the defendant engaged in the activity for profit;

(4) whether the defendant demonstrated reluctance, and;

(5) the nature of the government[']s inducement.

Of these five factors, the most important is whether the defendant demonstrated reluctance which was overcome by the government's inducement.

Instruction No. 19 is directly quoted from United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992). We have not previously approved of a jury instruction which lists factors relevant in determining the predisposition of a defendant. However, we conclude that this instruction was proper and helpful to the jury. Moreover, we note that the factors listed in Instruction No. 19 are not exclusive. Other jurisdictions have adopted additional factors to consider in determining a defendant's predisposition. See, e.g., United States v. Dion, 762 F.2d 674, 687-88 (8th Cir.1985),

rev'd on other grounds,

476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986).⁵

Evidence of prior conviction

Foster's final contention is that the district court erred by allowing the State to introduce evidence concerning his eight-year-old conviction for possession of a controlled substance to prove that Foster had a predisposition to sell drugs. At trial, the district court admitted evidence regarding Foster's previous conviction for possession of a controlled substance. An officer testified that, in 1989, he obtained Foster's consent to search his vehicle and found twenty-one baggies of marijuana. As a...