Hillis v. State

• Decision Date: 10 December 1987
• Docket Number: No. 16563,16563
• Parties: Gary W. HILLIS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1092

746 P.2d 1092

103 Nev. 531

Gary W. HILLIS, Appellant, v. The STATE of Nevada, Respondent.

No. 16563.

Supreme Court of Nevada.

Dec. 10, 1987.

Barbara Byrne, Elko Public Defender, Elko, for appellant.

Brian McKay, Atty. Gen., and David F. Sarnowski, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

Gary Wayne Hillis was convicted of trafficking in cocaine in violation of NRS 453.3395 and possession of marijuana in violation of NRS 453.336. Hillis contends his convictions should be reversed for various reasons stemming from the circumstances of his arrest and for the trial court's refusal to instruct the jury on certain lesser-included offenses and on the procuring agent defense.

Ed Knotts thought volunteering as a confidential informant might improve his chances of being hired by the Sheriff's Department. Elko authorities accepted his services and allowed him to choose his own targets. Knotts thought of Gary Hillis whom he had known in Utah when they worked at neighboring gas stations. Knotts had reason to believe Hillis sold small amounts of cocaine at a Salt Lake City bar. Hillis had also offered Knotts cocaine while on a visit to Wendover.

In October, 1984, Knotts called Hillis in Utah and asked him to obtain an ounce of cocaine. He telephoned Hillis numerous times in a two-week period. Finally, Hillis agreed to meet Knotts in Wendover with the cocaine. He arrived at the Nevada Crossing Casino with Brent Barns and two women. In Barns' automobile, Barns and Knotts proceeded to a hotel room. Inside the room, Hillis showed Knotts a large packet of cocaine and they both ingested a quantity of the substance. Knotts announced he only had half the purchase price and suggested they divide the cocaine. Hillis was arrested as he and Knotts left the hotel room to obtain scales. A search of his person yielded one heat-sealed packet of cocaine weighing 24.76 grams, two small vials containing 1.81 grams, a larger vial containing 3.13 grams, and a small quantity of marijuana. Nine other bags of marijuana were found in Barns' car. Hillis was charged with trafficking in cocaine and possession of marijuana for sale. The jury convicted him of trafficking in cocaine and simple possession of marijuana.

First, Hillis contends he was entrapped as a matter of law because police had no reason to believe he was predisposed to sell cocaine. In Shrader v. State, 101 Nev. 499, 501-502, 706 P.2d 834, 836 (1985), we held the police must have reasonable cause to believe a specific individual is predisposed to commit the crime before they can target him for an undercover operation. However, entrapment is an affirmative defense which, if it does not clearly appear on the record as a matter of law, the defendant must prove. Lisby v. State, 82 Nev. 183, 186, 414 P.2d 592, 594 (1966). It cannot ordinarily be raised for the first time on appeal. United States v. Donell, 469 F.2d 85, 86 (9th Cir.1972); United States v. Priest, 419 F.2d 570, 572 (10th Cir.1970); DiNatale v. State, 8 Md.App. 455, 260 A.2d 669, 671 (1970). Because the record does not reflect Hillis ever asserted the entrapment defense below, we deem the point to have been waived and will not be considered on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).

Next, Hillis contends police conduct in luring him into the state for the purpose of arresting him was so outrageous as to offend the due process clause of the 14th amendment. Hillis also failed to make this argument to the trial court. However, constitutional questions may be reviewed on an adequate record despite failure to raise the issue below. Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980).

In United States v. Russell, 411 U.S. 423, 431-432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973), the United States Supreme Court commented it "may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." However, only the most egregious activity implicates constitutional concerns. Governmental conduct is only constitutionally impermissible where "shocking to the universal sense of justice" and violative of the fundamental fairness mandated by the due process clause. Id. at 431, 93 S.Ct. at 1642. The Third Circuit has cautioned, "We must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable; the ramifications are wider and more permanent than when only a statutory defense [entrapment] is implicated." United States v. Jannotti, 673 F.2d 578, 607-608 (3d Cir.1982).

Governmental conduct in luring a defendant into the state for the purpose of obtaining an arrest may be so outrageous as to bar conviction when the arrest serves no legitimate state interest. In People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978), the court reversed a conviction on state due process grounds where a Pennsylvania resident agreed to procure cocaine for an informant who had been brutalized by New York police, but did not consent to transporting the contraband into New York. The defendant was present in New York only because of an elaborate scheme that caused him to unwittingly cross the state border. By contrast, Hillis voluntarily and knowingly brought a large amount of cocaine into the state only because the informant indicated that a group of card dealers wanted to make a purchase. The record also indicates he had previously brought cocaine into the state. Under these circumstances, we cannot say the state had no interest in effecting his arrest. We perceive no constitutional obstacle to the conviction.

Having decided the governmental conduct in this case did not offend the constitution, we also reject Hillis' argument that evidence obtained pursuant to his arrest should have been suppressed as the fruit of outrageous governmental behavior. We further note Hillis did not object to admission of the evidence at trial.

Hillis also contends the trial court erred in refusing to instruct the jury that "sale of a controlled substance" and "possession of a controlled substance for the purpose of sale" were lesser-included offenses of "trafficking." First, we note the evidence did not show a sale since no money or drugs had actually changed hands at the time of the arrest. See Ward v. Sheriff, 90 Nev. 439, 440, 529 P.2d 798 (1974). The requested instruction on "sale" was not pertinent and would have been erroneous if given....