State v. Fiechter

• Decision Date: 15 March 1976
• Docket Number: No. 10527,10527
• Citation: 1976 NMSC 6,89 N.M. 74,547 P.2d 557
• Parties: STATE of New Mexico, Petitioner, v. James Otis FIECHTER, Respondent.
• Court: New Mexico Supreme Court

Page 557

547 P.2d 557

89 N.M. 74

STATE of New Mexico, Petitioner, v. James Otis FIECHTER, Respondent.

No. 10527.

Supreme Court of New Mexico.

March 15, 1976.

Toney Anaya, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for petitioner

Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Donald Klein, Jr., Associate App. Defender, Santa Fe, for respondent.

OPINION

STEPHENSON, Justice.

Charged with the unlawful possession of a controlled substance ¹ (marijuana), Fiechter moved for dismissal during trial claiming entrapment as a matter of law. The trial court denied the motion, but gave an instruction on entrapment which Fiechter had requested. ² The jury convicted. The Court of Appeals reversed, holding entrapment existed as a matter of law. State v. Fiechter, 88 N.M. 437, 540 P.2d 1326 (Ct.App.1975). We granted certiorari and reverse the Court of Appeals.

After the closing of a methadone maintenance program in Taos, the defendant moved to Albuquerque to enroll in a similar program, but a waiting period was required before treatment could begin. Immediately upon his arrival he contacted his former heroin supplier, Mora, who had been arrested for narcotics violations and now worked as an informant. Mora supplied Fiechter with heroin, and the two agreed to arrange a sale of marijuana. During the transaction Fiechter was arrested and was charged with the unlawful possession of a controlled substance.

There is nothing new about pleas of entrapment. Eve said, 'The serpent beguiled me and I did eat.' ³ The results were unfortunate but scarcely unjustified. Such pleas often have a hollow ring because implicit in them is an admission by the orator of commission of the crime charged. The efficacy of the beguilment, assuming the defendant is predisposed to commit the crime, is normally viewed with a healthy skepticism by courts and juries alike.

Although entrapment is not a defense of constitutional dimension, and we are not therefore bound to apply the law as announced by the United States Supreme Court, we find the opinions of that court persuasive on the subject, particularly United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), which reviews and follows the majority opinions in certain of its prior cases. ⁴ These cases establish that entrapment is a relatively limited defense.

Police participation in criminal conduct has often been discussed in the major Supreme Court opinions on entrapment. Chief Justice Hughes said in Sorrells v. United States, supra:

It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. (Citations omitted.) The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. 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. at 441--42, 53 S.Ct. at 212.

And Chief Justice Warren in Sherman v. United States, supra, opined:

In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 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. at page 442, 53 S.Ct. at page 212.

356 U.S. at 372, 78 S.Ct. at 820.

Particularly in relation to the narcotics traffic, the majority in United States v. Russell, supra, said:

* * * in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; * * *. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate 'fundamental fairness' or 'shocking to the universal sense of justice.' (Citation omitted.)

411 U.S. at 432, 93 S.Ct. at 1643.

With this brief introduction to entrapment we now turn to New Mexico law.

Entrapment as a matter of law has been found by New Mexico appellate courts only in State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (Ct.App.1972). In that case the State and its agents requested narcotics from the defendant, supplied the money, and purchased the contraband. The Court of Appeals held that the State's participation in the criminal conduct constituted entrapment as a matter of law. The court relied on the Ninth Circuit decision in United States v. Russell, 459 F.2d 671 (9th Cir. 1972), which was later reversed by the Supreme Court. ⁵

We do not approve of the language quoted from the Ninth Circuit opinion in United States v. Russell, supra, by which the result was reached in State v. Sainz. The rationale of the United States Court of Appeals was espoused by a dissenting minority in each of the United States Supreme Court cases we have cited, and in each case rejected by the majority. The United States Court of Appeals concluded that in entrapment cases the focus should be on the activities of the government, exactly as the New Mexico Court of Appeals did in this case. We disagree. Our Court of Appeals was doubtless relying on language in State v. Sainz, supra, and were misled thereby. State v. Sainz is overruled.

And in State v. Jackson, 88 N.M. 98, 537 P.2d 706 (Ct.App.1975), the Court of Appeals was incorrect when it stated:

Indeed, the law of entrapment in New Mexico may be characterized as utilizing both tests, weighing the objective indicia of police involvement against the subjectively determined state of mind of the accused.

88 N.M. at 101, 537 P.2d at 709.

That case is overruled to that extent.

The United States Supreme Court's opinion in U.S. v. Russell, supra, which we have approved, holds that in entrapment cases, the focal issue is 'the intent or predisposition of the defendant to commit the crime.' 411 U.S. at 429, 93 S.Ct. at 1641. The Court further said, quoting from Sorrells v. United States, supra:

'(I)f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.'

Id.

The recently approved New Mexico Uniform Jury Instruction--Criminal 41.35 (effective September 1, 1975) also reflects this position. ⁶

Thus, under the subjective standards we approve today, it is rare indeed when entrapment may correctly be held to exist as a matter of law. And if entrapment in law is not present, then the jury must decide whether the defendant was predisposed to commit the crime. State v. Akin, 75 N.M. 308, 404 P.2d 134 (1965); State v. Roybal, 65 N.M. 342, 337 P.2d 406 (1959). We place our reliance on the sense of justice and fair play reposing in juries under correct instructions upon the law. We now turn to the evidence here, mindful of our precedents holding that in an appeal from a criminal conviction we must view the evidence in a light most favorable to the State, resolving all conflicts and making reasonable inferences from the evidence in favor of the verdict. State v. Betsellie, 82 N.M. 782, 487 P.2d 484 (1971); State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960). The Court of Appeals ignored this principle of appellate review.

The record shows by Mr. Fiechter's own testimony that due to his addition, he was unable to work. He was utterly without funds, having pawned his television, radio and bicycle to obtain drugs. He was in desperate need of money for heroin. He described his frequent conversations with Mr. Mora whence came the plan for the marijuana transaction which led to his downfall:

Q. When was the next time that the subject was mentioned?

A....