State v. Preston

• Decision Date: 14 March 2000
• Docket Number: No. 2 CA-CR 98-0524.,2 CA-CR 98-0524.
• Citation: State v. Preston, 197 Ariz. 461, 4 P.3d 1004 (Ariz. App. 2000)
• Parties: The STATE of Arizona, Appellee, v. Sean Edward PRESTON, Appellant.
• Court: Arizona Court of Appeals

4 P.3d 1004

197 Ariz. 461

The STATE of Arizona, Appellee, v.Sean Edward PRESTON, Appellant.

No. -0524.

Court of Appeals of Arizona, Division 2, Department A.

March 14, 2000.

Janet Napolitano, Arizona Attorney General, by Paul J. McMurdie, Joseph T. Maziarz, Linda Knowles, Phoenix, for appellee.

Susan A. Kettlewell, Pima County Public Defender, by Frank P. Leto, Tucson, for appellant.

OPINION

FLOREZ, Judge.

¶ 1AppellantSean Edward Preston was charged with four counts of sale of methamphetamine to an undercover Tucson police officer.A jury returned verdict forms on which they had written the word "guilty" in the blank space for each of the four counts.The trial court sentenced appellant to concurrent, three-year prison terms on three of the counts and a seven-year term of probation on the other.He appeals, raising several related challenges to the constitutionality of Arizona's entrapment statute, A.R.S. § 13-206.

¶ 2 At his trial, Preston raised the defense of entrapment, claiming that the undercover police officer originated the idea of the methamphetamine sales and induced him to sell methamphetamine to the officer.Section 13-206, enacted in 1997, provides in pertinent part as follows:

A.It is an affirmative defense to a criminal charge that the person was entrapped.To claim entrapment, the person must admit by the person's testimony or other evidence the substantial elements of the offense charged.

B.A person who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence:

1.The idea of committing the offense started with law enforcement officers or their agents rather than with the person.

2.The law enforcement officers or their agents urged and induced the person to commit the offense.

....

D.If a person raises an entrapment defense, the court shall instruct the jurors that the person has admitted the elements of the offense and that the only issue for their consideration is whether the person has proven the affirmative defense of entrapment by clear and convincing evidence.

CONSTITUTIONALITY OF STATUTE

¶ 3 Preston argues that the statute is unconstitutional on its face and as applied.He asserts that § 13-206(B) violates due process under both the federal and state constitutions because it places too high a burden on the defendant by requiring the defendant to prove entrapment by clear and convincing evidence.He also contends § 13-206(D)'s limitation on jury instructions, and the trial court's instructions that were given accordingly, effectively eliminated his right to a jury trial, his right to be presumed innocent, and his right to have the state prove each element of the offenses charged beyond a reasonable doubt.

¶ 4"The constitutionality of [this]statute is a matter of law that we review de novo.We begin with the presumption that the statute is constitutional.`The party challenging the validity of a statute has the burden of overcoming that strong presumption.' "City of Tucson v. Rineer,193 Ariz. 160, ¶ 12, 971 P.2d 207, ¶ 12 (1998), quotingState v. Tocco,156 Ariz. 116, 119, 750 P.2d 874, 877(1988).We have "a duty to construe a statute so that it will be constitutional if possible."State v. McDonald,191 Ariz. 118, 120, 952 P.2d 1188, 1190(1998).We may also find part of a statute unconstitutional if it is severable from constitutional portions; "[a]n entire statute need not be declared unconstitutional if constitutional portions can be separated."Republic Inv. Fund I v. Town of Surprise,166 Ariz. 143, 151, 800 P.2d 1251, 1259(1990);see alsoState v. Prentiss,163 Ariz. 81, 786 P.2d 932(1989).

[W]here the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act.

Selective Life Ins. Co. v. Equitable Life Assurance Soc'y,101 Ariz. 594, 599, 422 P.2d 710, 715(1967).

¶ 5 Prior to the enactment of this statute, Arizona's entrapment defense, like that in the federal system, was a judicial creation.SeeUnited States v. Russell,411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366(1973);State v. Soule,168 Ariz. 134, 811 P.2d 1071(1991);State v. McKinney,108 Ariz. 436, 501 P.2d 378(1972).The entrapment defense does not arise out of constitutional principles; it is based on the public policy notion that legislatures "could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government."Russell,411 U.S. at 435, 93 S.Ct. at 1644, 36 L.Ed.2d at 375;see alsoSorrells v. United States,287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413(1932);Soule.

¶ 6 Before enactment of the statute, case law provided that if a defendant raised the defense of entrapment " `the prosecution[had to] establish beyond a reasonable doubt that the accused was not entrapped into committing the offense.'"McKinney,108 Ariz. at 440, 501 P.2d at 382, quotingState v. Boccelli,105 Ariz. 495, 497, 467 P.2d 740, 742(1970);see alsoState v. Apodaca,166 Ariz. 274, 801 P.2d 1177(1990).In contrast, § 13-206(B) now places the burden of proving entrapment on the defendant.Like the case law, the statute prohibits a defendant from pleading inconsistent defenses and requires that a defendant invoking the defense admit the substantial elements of the crime.§ 13-206.

A.Burden of Proof

¶ 7 Relying on Cooper v. Oklahoma,517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498(1996), Preston first contends that § 13-206(B)'s requirement that he prove entrapment by clear and convincing evidence renders that section unconstitutional because the evidentiary standard is too onerous.¹In Cooper,the Supreme Court found an Oklahoma procedural rule unconstitutional because it required the defendant to prove his incompetence to stand trial by clear and convincing evidence.The Court held that the rule violated the constitution because it allowed the state to try a defendant who was more likely than not incompetent.The Court stated, "The deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he[is incompetent to do so] mandate constitutional protection."Id. at 368, 116 S.Ct. at 1383, 134 L.Ed.2d at 514.In contrast, the affirmative defense of entrapment "is not of a constitutional dimension."Russell,411 U.S. at 433,93 S.Ct. at 1643,36 L.Ed.2d at 374;see alsoEaglin v. Welborn,57 F.3d 496(7th Cir.1995).Consequently, Cooper does not support Preston's contention that the clear and convincing standard is an unconstitutionally onerous standard for proving entrapment.

¶ 8 Moreover, placing a burden of proof on a defendant that is greater than a preponderance of the evidence may be constitutional so long as "a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged...."Walton v. Arizona,497 U.S. 639, 650, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511, 526(1990).For example, the Supreme Court has held that a defendant's due process rights are not violated when a state requires a defendant to prove the affirmative defense of insanity beyond a reasonable doubt, an even more onerous burden than clear and convincing.Leland v. Oregon,343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302(1952).Indeed, our supreme court, relying on Leland, has held that a defendant's constitutional rights were not violated by requiring the defendant to prove the affirmative defense of insanity by clear and convincing evidence.State v. Moorman,154 Ariz. 578, 744 P.2d 679(1987).If the higher burden of beyond a reasonable doubt may constitutionally be required to establish the affirmative defense of insanity, we see no reason, nor does Preston give us one, why requiring him to prove his affirmative defense of entrapment by the lesser standard of clear and convincing evidence violates due process.Thus, we conclude that the burden of proof set forth in § 13-206(B) does not render it unconstitutional.

B.Jury Instruction and § 13-206(D)

¶ 9 Preston next contends that § 13-206(D) and the trial court's application of it violated his rights to due process and to a jury trial at which he was presumed innocent and at which the state was required to prove every element of the offenses beyond a reasonable doubt.²He claims this violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitutionandarticle II, §§ 4,23, and24 of the Arizona Constitution.³At oral argument, Preston equated § 13-206(D) and its limitation on the jury instructions with a directed verdict of guilty.

¶ 10 The record shows that before any witnesses had testified, the trial court gave preliminary jury instructions, including instructions explaining the presumption of innocence and the state's burden of proving Preston's guilt beyond a reasonable doubt.SeeAriz.R.Crim.P. 18.6(c), 17 A.R.S.In the state's case-in-chief, two undercover police officers testified about Preston's drug sales to an officer.As he was required to do by the entrapment statute, Preston admitted the elements of the crime by testifying that he had sold methamphetamine to an undercover officer on each of the four dates alleged in the indictment.Near the close of evidence on the third day of trial, the state urged the trial court not to reinstruct the jury on the state's burden of proof because, as required by § 13-206(D), Preston had now "admitted the elements of the offense[; thus,] the only issue for [the jury's] consideration [was] whether the person has proven the affirmative defense of entrapment by clear and convincing evidence."The state asserted that because of...