State v. Sanchez

• Decision Date: 06 December 1968
• Docket Number: No. 210,210
• Citation: 1968 NMCA 91,448 P.2d 807,79 N.M. 701
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ruben SANCHEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 807

448 P.2d 807

79 N.M. 701

STATE of New Mexico, Plaintiff-Appellee, v. Ruben SANCHEZ, Defendant-Appellant.

No. 210.

Court of Appeals of New Mexico.

Dec. 6, 1968.

Norman D. Bloom, Jr., Fettinger, Bloom & Overstreet, Alamogordo, for appellant

Boston E. Witt, Atty. Gen., Warren O. F. Harris, Jesse F. Bingaman, Jr., Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

OMAN, Judge.

Defendant appeals from his conviction on two charges of possession of marijuana, contrary to the provisions of § 54--7--13, N.M.S.A.1953.

Although none of the points relied upon for reversal directly attack the sufficiency of the evidence to support the convictions, some discrepancies in the evidence are stressed in the briefs and were pointed out in the oral arguments. An appellate court reviews the evidence only to determine if the verdict is supported by substantial evidence. In making this determination, the court views the evidence in the light most favorable to the State, resolving all conflicts and indulging all reasonable inferences in favor of the verdict. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967); State v. Torres, 78 N.M. 597, 435 P.2d 216 (Ct.App.1967).

The pertinent facts are that in 1961 or 1962, while in the custody of the California Youth Authority at Tracy, California, defendant met a Mr. Daniel Chavez. They became pretty good friends.

On December 23, 1963, defendant was arrested for a narcotics violation. He was convicted and given a sentence of seven years confinement for this violation. At that time he was addicted to the use of heroin, and was, therefore, committed to a hospital for the period of April 1, 1964, to November 30, 1965. On November 30, 1965, he was released from the hospital and placed on parole.

On February 11, 1966, he violated his parole by leaving California for New Mexico. He arrived in Alamogordo on February 12, 1966, where he had lived until some time prior to 1961 or 1962.

On Sunday, February 13, 1966, Daniel Chavez was working as a narcotics informer with Officer Arthur Sedillo, an undercover narcotics agent and criminal investigator for the New Mexico State Police. They were going through Alamogordo on this date, and, as a part of their duties, made inquiries concerning the possible purchase of narcotics.

During the evening of February 13, Officer Sedillo and Chavez were with some persons suspected of being narcotics violators. They purchased some liquor at a private home with money furnished by Officer Sedillo. At about this time defendant joined the group. He and Chavez recognized each other. Chavez introduced Officer Sedillo to defendant as a cousin of Chavez. They all visited and drank some of the whiskey.

During the conversation, defendant told Officer Sedillo and Chavez that had they been there earlier they might have been able to get some marijuana.

In order to protect his identity and the fact that he was then working in an undercover capacity as a student at New Mexico Western University in Silver City, Officer Sedillo, at the time he was ready to leave, told defendant and the others that he was going to El Paso from Alamogordo. Defendant stated he had a sister living in Juarez, Mexico and would like to ride to El Paso. He also stated he had a connection and a source of supply for narcotics down there.

Officer Sedillo and Chavez told defendant the car they were using was stolen, and Chavez talked of stealing other vehicles and of having 'quite a bit of good luck in burglaries.'

The three of them drove to El Paso, and then walked across the bridge into Juarez. Chavez registered as a convicted user of narcotics at the International Bridge, but defendant did not.

They stopped at two or three bars in Juarez and had some more drinks. During the evening, Officer Sedillo loaned defendant $20.00 with which to purchase heroin. Defendant was unable to secure the heroin, so he returned the $20.00.

At about 4:00 a.m. on February 14, Officer Sedillo decided to leave Juarez and get back to Silver City. Defendant did not want to leave, and he made some protests about being left with no means of getting back to Alamogordo. Officer Sedillo then gave him $5.00 for bus fare, and the officer and Chavez left. At no time did the officer or Chavez ask defendant to secure narcotics for them.

The next time they saw defendant was on April 6, 1966, at defendant's home in Alamogordo. They called on defendant at his home and the three of them drove to a bar, secured a six-pack of beer, and then drove to the outskirts of town.

Defendant suggested that it was pretty hot, that they go back to his home, so he could get some marijuana, and that they then go to a shady spot near Tularosa. They drove back to defendant's home. Defendant went into the house and returned, carrying a small package wrapped in newspaper. They then proceeded to the shady spot.

Defendant opened the package and exposed some green material which he referred to as marijuana. They proceeded to manicure the material and roll three cigarettes in papers produced by defendant. Officer Sedillo and Chavez pretended to smoke their cigarettes, but defendant said he had smoked some earlier and did not care for any more right then. He later handed his cigarette to either Officer Sedillo or Chavez. The two partially consumed cigarettes and the one complete cigarette were turned over to Officer Sedillo's superiors later that day.

On April 9, 1966, Officer Sedillo and other police officers proceeded to defendant's home with a search warrant and a warrant for defendant's arrest. The arrest and search were made. The search revealed five home-made cigarettes in a packet of defendant's trousers.

The contents of these five cigarettes, and of the three which were rolled on April 6, were marijuana.

Defendant seeks reversal of his convictions for possession of marijuana on April 6 and 9. He relies upon three points. The first is that the evidence shows entrapment as a matter of law, and the trial court erred in denying his motions for directed verdicts on this ground.

Defendant claims entrapment as a matter of law because of the following conduct on the part of either Officer Sedillo or Chavez, or on the part of both, during February 13 and the early morning hours of February 14: (1) They gave as their reason for being in Alamogordo that they were on their way to El Paso and wanted to buy some marijuana for the trip. (2) Officer Sedillo gave the impression of being engaged in crime and involved in trafficking in narcotics. (3) They led him to believe the vehicle they were driving was stolen. (4) They led him to believe that Chavez was involved in stealing and selling automobiles and committing burglaries. (5) They lied about planning on going to El Paso from Alamogordo. (6) Officer Sedillo drove the vehicle about Alamogordo and on the way to El Paso in a reckless and at times unlawful manner. (7) They furnished him with liquor to drink in Alamogordo and with money with which to buy the drinks at the bars in Juarez. (8) They accompanied him to Juarez and countenanced his crossing into Mexico without registering as a convicted narcotics user as required by Federal law.

The trial court submitted the question of entrapment to the jury by instructions to which no objections were made or exceptions taken. As above stated, the claim of error is directed solely at the trial court's refusal to hold, as a matter of law, that defendant had been entrapped.

Undoubtedly, Officer Sedillo and Mr. Chavez sought to, and very probably did, deceive defendant in some particulars. They told some falsehoods, concealed Officer Sedillo's true identity, and endeavored to present the appearance of criminals. The practice of some deceit is always present in the operations of undercover law enforcement officers and agents. The very terms 'undercover' and 'informer', as used by the police in their lawful activities to apprehend criminals, infer deceit and stealth. The use of undercover operators and informers has proven necessary to combat the activities of criminals, who rely so largely on deceit, stealth, secrecy and violence to protect themselves and their criminal conduct from discovery.

The practice of some deceit by law enforcement officers is not, in itself, sufficient to constitute entrapment. See State v. Akin, 75 N.M. 308, 404 P.2d 134 (1965); State v. Roybal, 65 N.M. 342, 337 P.2d 406 (1959). See also United States v. Owens, 228 F.Supp. 300 (D.D.C. 1964). A defendant can be said to have been entrapped only when the officers or agents originate the criminal intent or design and use undue persuasion or enticement to induce defendant to commit the crime with which he is charged. He has not been entrapped if the officers or agents merely offer him an opportunity to commit an offense which he is ready and willing to commit. State v. Akin, supra; State v. Roybal, supra. See also Rowlette v. United States, 392 F.2d 437 (10th Cir. 1968); Sandoval v. United States, 285 F.2d 605 (10th Cir. 1960); United States v. Owens, supra.

We are unable to perceive how anything done by Officer Sedillo and Chavez on February 13 and 14 can be said to have originated the criminal intent or design on the part of the defendant to possess marijuana on April 6 or 9, or how their conduct can be said to constitute undue persuasion or enticement of defendant to commit the crimes of which he was convicted.

In our opinion, the circumstances in this case show clearly that the most Officer Sedillo and Chavez did was to help create in the mind of defendant a feeling of confidence that they were criminals and users of narcotics. Thus, there was no entrapment as a matter of law.

Defendant next contends he was prejudiced by the court in restricting his cross-examination of Officer Sedillo.

The officer was asked if he made it a practice of dismissing charges against persons who agreed to act as informers. His answer was no. He was then asked if charges had ever been dismissed...