State v. Buendia

• Decision Date: 09 January 1996
• Docket Number: No. 16198,16198
• Citation: 912 P.2d 284,1996 NMCA 27,121 N.M. 408
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joaquin BUENDIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 284

912 P.2d 284

121 N.M. 408

STATE of New Mexico, Plaintiff-Appellee, v. Joaquin BUENDIA, Defendant-Appellant.

No. 16198.

Court of Appeals of New Mexico.

Jan. 9, 1996.

[121 N.M. 409] Appeal from the District Court of Eddy County; James L. Shuler, District Judge.

Tom Udall, Attorney General and Katherine Zinn, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Gary C. Mitchell, Gary C. Mitchell, P.C., Ruidoso, for Defendant-Appellant.

OPINION

BLACK, Judge.

Joaquin Buendia (Defendant) was convicted of two counts of unlawful dealing in federal coupons, contrary to NMSA 1978, Section 30-16-7 (Repl.Pamp.1994). Defendant argues the trial court erred in refusing Defendant's requested instruction on entrapment and that there was insufficient evidence to support his conviction. We hold the trial court erred in requiring Defendant to admit every element of the crime before allowing the entrapment defense but, because we find sufficient evidence to support the conviction, we remand for a new trial.

I. STANDARD OF REVIEW

New Mexico follows a two-step approach when considering the objective entrapment defense and different standards of appellate scrutiny are appropriate to each step. State v. Sheetz, 113 N.M. 324, 327, 825 P.2d 614, 617 (Ct.App.1991). First, the trial court must determine the proper standards of police investigation, which is a question of law. Id. The trial court's decision on this aspect of the case is freely reviewable on appeal. Id. The second step is for the trial court to determine whether the facts will support an instruction on entrapment. See id. at 327, 329, 825 P.2d at 617, 619. This is a fact-based decision which requires appellate deference to the fact finder. See State v. Lucas, 110 N.M. 272, 276, 794 P.2d 1201, 1205 (Ct.App.), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990).

In reviewing the sufficiency of the evidence to support a conviction, this Court must view the evidence in the light most favorable to the State, indulging all reasonable inferences in favor of the jury's verdict. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). It is this Court's duty " 'to determine whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt.' " State v. Aguilar, 117 N.M. 501, 504, 873 P.2d 247, 250 (quoting State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992)), cert. denied, --- U.S. ----, 115 S.Ct. 168, 130 L.Ed.2d 105, and cert. denied, --- U.S. ----, 115 S.Ct. 182, 130 L.Ed.2d 116 (1994).

II. FACTS

In 1993, the Eddy County Metro Narcotics Unit enlisted Ruben Montez, a former police officer, to act as an undercover agent in "Operation Badlands." Agent Montez was given food stamps to sell or trade for drugs.

Defendant worked on a hay farm in Eddy County. It was his testimony that government agents approached him about a potential drug deal, but he rejected their advances. Later, posing as a poor person with a child dying in the hospital and in desperate need of money, Agent Montez again approached Defendant. Defendant borrowed money from his employer and gave it to Agent Montez. Defendant further testified he refused the food stamps but did loan Agent Montez money to visit his sick child. A few months later, Agent Montez again met Defendant at the bar and related his child had died. According to Defendant, Agent Montez again asked to borrow money. Defendant said he again loaned Agent Montez money but did not receive any food stamps.

Agent Montez testified that Defendant purchased four booklets of food stamp coupons from him on April 30, 1993, and another four on October 26, 1993. Agent Montez denied ever telling Defendant he even had any children. Thus, it was his testimony that he sold Defendant a total of eight food stamp coupon booklets on two separate occasions and that each booklet was worth $65.

A. Defendant Was Not Required to Admit Every Element of the Offense Before Being Entitled to an Entrapment Defense

Defendant requested the trial court to give an instruction on objective entrapment as suggested in Sheetz, 113 N.M. at 329, 825 P.2d at 619. The State argued that Defendant was not entitled to an entrapment instruction because he had not admitted the elements of the crime. The trial court agreed with the State and apparently did not distinguish between standards for objective and subjective entrapment.

The entrapment defense became clearly defined only in recent years; therefore, we must initially examine the contours of existing New Mexico entrapment precedent. New Mexico is one of a limited number of jurisdictions which recognize both the subjective and objective forms of the entrapment defense. State v. Sellers, 117 N.M. 644, 647, 875 P.2d 400, 403 (Ct.App.), cert. denied, 118 N.M. 90, 879 P.2d 91 (1994); 3 Gene P. Schultz, Proving Criminal Defenses § 13.02[b] (1994). The subjective approach focuses on the state of mind of the accused, while the objective defense focuses on the conduct of law enforcement personnel. Baca v. State, 106 N.M. 338, 339, 742 P.2d 1043, 1044 (1987); Scott C. Paton, Note, "The Government Made Me Do It": A Proposed Approach to Entrapment Under Jacobson v. United States, 79 Cornell L.Rev. 995, 996 (1994).

Objective entrapment is premised on the public policy against allowing the police to foster crime. Baca, 106 N.M. at 340, 742 P.2d at 1045. For this reason, "[t]he determination of the proper standards of police investigation is a question of law and policy to be decided by the courts in the first instance." Sheetz, 113 N.M. at 327, 825 P.2d at 617. However, those cases which are appropriate to submit to the jury on the objective theory may also raise a jury issue under the subjective theory. Although it was not available at the time this case was tried, the new uniform jury instruction embodied in SCRA 1986, 14-5160 (Cum.Supp.1995) appropriately provides guidance to juries on both theories. Instruction 14-5160 may be tailored to instruct a jury on either the objective or subjective entrapment defenses or on both if the evidence supports them both.

With this background, we consider the district court's ruling that Defendant was not entitled to an entrapment instruction because he denied committing the offense. The inconsistent defense rule is generally not applied in jurisdictions using the objective test. Paul Marcus, The Entrapment Defense § 6.20, at 250 (1989). The incongruity of denying entrapment as a defense inconsistent with the objective theory was explained by California Chief Justice Traynor in the following terms:

A defendant, for example, may deny that he committed every element of the crime charged, yet properly allege that such acts as he did commit were induced by law enforcement officers. Moreover, a defendant may properly contend that the evidence shows unlawful police conduct amounting to entrapment without conceding that it also shows his guilt beyond a reasonable doubt.... Entrapment is recognized as a defense because "the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime."

People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 329-30, 401 P.2d 934, 937-38 (1965) (en banc) (citations omitted); see also Thomas J. Raubach, Note, Denial of the Crime and the Availability of the Entrapment Defense in the Federal Courts, 22 B.C.L.Rev. 911-12 n. 22 (1981) (denial of the crime not relevant under objective approach because objective entrapment concerns only the nature of the government's actions and whether they were improper). Here, Defendant clearly was arguing for an instruction on objective entrapment and offered evidence in support of the instruction. The district court erred in refusing the instruction on the basis that Defendant did not admit the essential elements of the crime. State v. Castrillo, 112 N.M. 766, 769, 819 P.2d 1324, 1327 (1991) (defendant entitled to instruction on theory if supported by evidence). We thus remand for a new trial. Because the record may also support an instruction on subjective entrapment at the retrial, we turn now to an analysis of the inconsistent defense based on that theory.

At one time, it was generally accepted that if a defendant denied perpetrating a crime he could not alternatively rely on the subjective entrapment defense. See Timothy E. Travers, Annotation, Availability in State Court of Defense of Entrapment Where Accused Denies Committing Acts Which Constitute Offense Charged, 5 A.L.R.4th, 1128, 1131 (1981); see also John R. Call, Comment, United States v. Demma: Assertion of Inconsistent Defenses in Entrapment Cases Allowed, 1975 Utah L.Rev. 962, 964 (1975). This nearly monolithic approach has, however, eroded over time. Marcus, supra, § 6.18; 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.2, at 609 (1986). See generally Call, supra, at 963-64. In the federal courts, for example, at least four positions evolved ranging from a total ban on such inconsistent defenses to a blanket approval of an alternative entrapment defense. Raubach, supra, at 912-13. The debate in the federal system was terminated with the decision in Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). In that case, the defendant was an employee of the Small Business Administration (SBA). Id. at 60, 108 S.Ct. at 885. James DeShazer was the president of a company which participated in an SBA program. DeShazer believed his company was being denied SBA benefits because he refused to give the defendant the personal loan he repeatedly requested. Under FBI surveillance, DeShazer then gave the defendant a loan, and the defendant was immediately arrested and charged with accepting a bribe. The district court ruled entrapment was not available to the defendant because he denied the bribe and maintained that he had merely accepted a personal loan which was totally unrelated to his...