Love v. State
| Decision Date | 27 April 1995 |
| Docket Number | No. 24727,24727 |
| Citation | 893 P.2d 376,111 Nev. 545 |
| Parties | John Franklin LOVE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Richard F. Cornell, Reno, for appellant.
Frankie Sue Del Papa, Atty. Gen., Carson City; Scott W. Doyle, Dist. Atty., Michael P. Gibbons, Chief Deputy Dist. Atty., and Kristine L. Brown, Deputy Dist. Atty., Douglas County, for respondent.
Appellant John Franklin Love was charged with two counts of trafficking in a controlled substance and two lesser counts of possession of a controlled substance. At trial, Love admitted to possession, but defended the trafficking charges on the ground that he was a procuring agent for his friend Peggy
Bertozzi. The district court refused to instruct the jury that the prosecution has the burden of disproving procuring agency beyond a reasonable doubt and instructed the jury that the procuring agent defense did not apply unless Bertozzi was acting as an informant when she initiated the drug transaction with Love. For the following reasons, we conclude that this constitutes error and reverse Love's conviction.
Love was arrested on November 22, 1992, following two "sales" of methamphetamine to Bertozzi. He was charged with two counts of trafficking in a controlled substance, in violation of NRS 453.3385, and two lesser included counts of possession of a controlled substance in violation of NRS 453.336.
During the third week of November, 1992, Bertozzi asked Love if he could provide her with a quarter ounce of methamphetamine to sell to her friend Bob Swee. Love agreed. Love initially told Bertozzi that the drugs would cost $200; however, in their last conversation, Love offered to let her keep the entire $500 that she would receive from Swee. This was the first time Bertozzi had received methamphetamine from Love.
On November 22, 1992, Bertozzi asked David Koteles to deliver a package of methamphetamine to Swee and collect $500 from him. Koteles had known Bertozzi for about ten years and had known her to sell drugs on occasion in order to support herself and her children. As a result of Bertozzi's request, Koteles called the police and met with Tri-Net Detective Paul Howell. Detective Howell instructed Koteles to pick up the drugs from Bertozzi, stand by for a telephone call from Swee, and meet Swee at the local supermarket. Koteles did as instructed, and Swee was arrested.
Subsequently, the Tri-Net officers went to Bertozzi's home and arrested her. She agreed to cooperate in exchange for leniency from law enforcement officials. Bertozzi told the officers that her source of the 6.9 grams of methamphetamine she sold to Swee was Love.
Bertozzi was instructed to call Love and was briefed several times on what to say to him. Detective Howell's purpose was twofold: first, to verify that Love was indeed the source of the methamphetamine in question, and second, to "set up" Love on a controlled purchase. Bertozzi called Love while Detective Howell listened to the conversation. Bertozzi then told Love, Love replied, "That's good." Bertozzi then stated that her friend liked the crank that she got for him and wanted more. Love replied, "Well, how much?" Bertozzi stated, "Same thing." Love replied, Bertozzi then stated, pursuant to previous instructions from Detective Howell, Approximately five minutes later, Love arrived at Bertozzi's residence, at which time he was placed under arrest. Upon conducting a search, the officers removed two plastic baggies of methamphetamine totaling 11.6 grams.
At trial, Love admitted to possession but attempted to establish the procuring agent defense to the charges of trafficking. Accordingly, Love introduced evidence to show that he acted solely for Bertozzi in obtaining the methamphetamine and that he did not benefit from the transactions in any way.
Love testified that a man named Spanky was the source of the methamphetamine in this case. Love testified that after he told Spanky that Bertozzi was a friend of his who was in financial straits, Spanky gave Love the first quantity of methamphetamine as a gift. Spanky dropped off the methamphetamine at Love's house. Bertozzi picked the drugs up there and then sold the drugs to Swee. Love stated that Spanky gave him another package of methamphetamine a few days later, even though Love did not specifically ask for it. Immediately following this, Bertozzi, at the request of the police, called Love.
The jury found Love guilty of the two trafficking counts and not guilty of the two lesser included possession counts. The district
court sentenced Love to a term of imprisonment of fourteen years total, seven years for the first count of trafficking and a consecutive seven-year term for the second. Love appeals.
The State's burden in disproving Love's procuring agent defense.
Love asserts that the district court erred in failing to instruct the jury that the State had the burden of disproving Love's procuring agent defense and in instructing the jury that the procuring agent defense does not apply unless the drug sale is initiated by a police informant. We agree.
The seminal Nevada authority on the procuring agent defense is Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). In Roy, we held that it is fundamental that a person cannot be found guilty of being a "seller" of narcotics when he or she has not acted for the supplier, but rather, solely for the recipient. Id. at 519, 489 P.2d at 1159. Accordingly, we approved the instruction:
"If you believe that Police Officer R. Baggett asked the defendant to get some marijuana for him and that the defendant thereupon undertook to act in behalf of Police Officer Baggett rather than on defendant's own behalf, and in so doing, purchased the marijuana from a third person with whom the defendant was not associated in selling marijuana, and that defendant thereafter delivered the marijuana to Police Officer Baggett, the defendant is not a seller and cannot be convicted of the offense of selling marijuana."
Since Roy, we have established that the procuring agent defense in a prosecution for a sale of a controlled substance can be maintained only if the defendant was merely a conduit for the purchase and in no way benefited from the transaction. Thus, if a defendant receives part of the controlled substance involved in the transaction for his own use or any amount of money in consideration for the transaction, the defense of procuring agency is not available. See Dixon v. State, 94 Nev. 662, 584 P.2d 693 (1978). Additionally, the procuring agent defense is inapplicable when the crime is simply possession of a controlled substance. Buckley v. State, 95 Nev. 602, 604, 600 P.2d 227, 228 (1979).
However, the procuring agent defense is applicable to a trafficking case where the State charges trafficking on a theory of possession, but the facts reveal a sale was contemplated. Hillis v. State, 103 Nev. 531, 535, 746 P.2d 1092, 1094-95 (1987).
The State charged Love solely with possession under the trafficking statute, 1 but the facts of the case clearly indicate that one sale occurred and that Love believed another sale would occur. Because Bertozzi initiated both sales and Love introduced evidence showing that he received no profit from the sales at issue, the district court properly gave a procuring agent instruction. Love argues, however, that the district court's failure to instruct as to who had the burden of proof with respect to the procuring agent defense constitutes reversible error.
Love offered an instruction that was modeled precisely on Roy, but ended with the additional words: "The burden is on the State to prove beyond a reasonable doubt that the Defendant is not a procuring agent." The district court rejected this instruction, stating that the burden is on the defendant to show that he is a procuring agent.
We have never specifically addressed the question of burden of proof regarding the procuring agent defense. In Roy, however, we cited the case of Smith v. State, 396 S.W.2d 876 (Tex.Ct.App.1965), noting that "[i]ndeed, it may even be contended appellant might have requested a stronger instruction."
Roy, 87 Nev. at 518-19, 489 P.2d at 1159. In Smith, the court found that the district court's refusal to read appellant's offered instruction constituted reversible error. The instruction at issue stated that if the jury found that the defendant was a procuring agent or if the jury had "reasonable doubt thereof," the jury must acquit the defendant
Additionally, New York courts have held that where the evidence establishes the availability of the procuring agent instruction, the burden is on the state to disprove procuring agency beyond a reasonable doubt. The court in People v. Arnott, 143 A.D.2d 761, 533 N.Y.S.2d 470 (1988), stated:
The agency defense is not an affirmative defense, but rather "may negate the existence of an element of the crime, namely, the sale or the intent to sell ... [and] [a]ccordingly, the People are required to disprove agency beyond a reasonable doubt."
Id. 533 N.Y.S.2d at 472 (quoting People v. Matos, 123 A.D.2d 330, 506 N.Y.S.2d 225 (1986)).
Thus, Love maintains that the procuring agent...
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