State v. Boccelli

• Decision Date: 07 April 1970
• Docket Number: No. 2034,2034
• Citation: 105 Ariz. 495,467 P.2d 740
• Parties: The STATE of Arizona, Appellee, v. Frederick A. BOCCELLI, Appellant.
• Court: Arizona Supreme Court

Page 740

467 P.2d 740

105 Ariz. 495

The STATE of Arizona, Appellee, v. Frederick A. BOCCELLI, Appellant.

No. 2034.

Supreme Court of Arizona, In Banc.

April 7, 1970.

H. W. Howard, Tucson, for appellant.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, Rose Silver, Pima County Atty., William J. Schafer, III, Former Pima County Atty., David G. Dingeldine, John J. Kramer, Pima Deputy County Attys., Tucson, for appellee.

STRUCKMEYER, Vice Chief Justice.

Appellant, Frederick A. Boccelli, was charged with the crime of unlawful sale of marijuana, in violation of A.R.S. § 36--1002.07, and convicted after a jury trial. From the conviction he has appealed urging the defense of entrapment.

On April 13, 1968, appellant, Frederick A. Boccelli, left work at approximately 6:00 p.m. He picked up a friend, a woman, on the way home and the two went directly to his house. At approximately 6:30 p.m., one Gaylord Junkins, who was a casual acquaintance of the appellant, knocked on the door and was invited into the living room. Unknown to the appellant, Junkins was working for the Arizona State Narcotics Bureau, being described in the testimony at the trial as an 'informer.' Junkins asked the appellant if he wanted to buy a 'lid' (approximately one ounce) of marijuana. Appellant replied, 'No, I don't have the money.'

Junkins then asked appellant if it was all right if Junkins left the marijuana at the appellant's house because Junkins wanted to look for another buyer and did not want to carry it around on his person. Appellant replied affirmatively and Junkins left the house, after placing the marijuana on a table in the living room. Upon leaving appellant's home, Junkins went to what was apparently a pre-arranged rendezvous with Al Heinze, a narcotics agent for the State of Arizona. Heinze and Junkins then met with Gary Richardson, another narcotics agent for the State. Seemingly Richardson had been told by Heinze earlier in the day that a meeting had been 'lined up' with appellant Boccelli.

Richardson and Junkins then went to appellant's home. They arrived there at approximately 7:05 p.m., thirty minutes after Junkins had left the house. Junkins introduced Richardson to appellant and left the room in accordance with a pre-arranged plan between Richardson and Junkins. Richardson then asked the appellant 'if he had the grass?' Appellant answered, 'Yes, it's on the table.' Richardson went to the table and picked up a plastic bag containing a green, leafy material. He asked appellant if this was what he was talking about and appellant answered affirmatively. Richardson testified that he next asked the appellant 'how much he wanted for it, at which time he said ten dollars.' They subsequently agreed on $9.25 because that was the amount Richardson had in change and the $9.25 was handed to appellant.

Appellant testified that he put the $9.25 into his pocket and that he did not give it to Junkins before Richardson and Junkins left the appellant's home shortly thereafter. The green, leafy material was subsequently tested by the Narcotics Enforcement Division of the State of Arizona and found to be marijuana. The record is clear that up to this time appellant had no prior criminal charges brought against him either for narcotic offenses or otherwise.

The defense of entrampment is founded on the public policy that the tempting of innocent persons into violations of the law by enforcement officers will not be tolerated. The Supreme Court of the United States in a leading case said:

'In Sorrells v. United States, * * * this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. 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. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' 287 U.S. (435), at page 442, 53 S.Ct. (210), at page 212, (77 L.Ed. 413). Then stealth and stategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.' Sherman...