State v. Sellers

• Decision Date: 07 April 1994
• Docket Number: No. 14490,14490
• Citation: 875 P.2d 400,117 N.M. 644,1994 NMCA 53
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles SELLERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 400

875 P.2d 400

117 N.M. 644

STATE of New Mexico, Plaintiff-Appellee, v. Charles SELLERS, Defendant-Appellant.

No. 14490.

Court of Appeals of New Mexico.

April 7, 1994.

Certiorari Denied May 24, 1994.

[117 N.M. 646] Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Chief Judge.

Defendant appeals from a judgment entered after a jury trial convicting him of one count of trafficking in cocaine, a second-degree felony, contrary to NMSA 1978, Sections 30-31-20(A)(2) and (B)(1) (Repl.Pamp.1989), and one count of conspiracy to traffic cocaine, a third-degree felony, contrary to NMSA 1978, Sections 30-28-2 (Repl.Pamp.1984) and 30-31-20. On appeal, Defendant raises four issues: (1) the jury was not instructed properly on his entrapment defense; (2) he was entitled to a directed verdict on the trafficking count because he established entrapment as a matter of law; (3) there was insufficient evidence to support the conspiracy-to-traffic count; and (4) he was denied a fair trial by prosecutorial misconduct during closing argument. We affirm.

FACTS

At trial Kel Smith testified that he had five felony convictions for check forgery and had been in prison four times. He became a police informant and was placed with undercover narcotics agent Carl Work in Alamogordo. By putting out the word that he had buyers, Smith found people wanting to sell drugs. Smith used that information to arrange for Work's drug buys and was paid $400 for each transaction.

Smith and Defendant have been close friends since growing up together in Las Cruces. They are both in their forties. When Smith moved to Alamogordo the two men visited there and in Las Cruces, staying at each other's houses. According to Smith, he had put out the word that he had a buyer with money, and Defendant approached him in order to make some of the money. According to Defendant, however, Smith first approached him about the deal, telling him that Smith was going to sell some cocaine, but the buyer did not want Smith to handle the money because of prior drug problems. Defendant testified that he twice agreed, when asked, to do Smith a favor by participating in a drug deal, because they had been friends for a long time.

Smith set up the first buy and drove Defendant to meet Work, who then gave Defendant $950 for an ounce of cocaine. Next, either Defendant or Smith acquired the cocaine, and the two of them went back to give it to Work. Smith and Defendant agree that one gave the other some of the cocaine for his participation in this and the other deals, but each claims he was the recipient and the other was the person who acquired the cocaine. Both also agree that Defendant had never sold cocaine prior to that day.

Smith said he twice accompanied Defendant in dealing with Work, but Work and Defendant agreed that there were three deals. The second deal was basically a repeat of the first. Defendant and Smith had different versions of the third deal.

Work testified that on August 8, 1991, he discussed purchasing cocaine with Jerry Holsome, a friend of theirs whom Smith had introduced to Work. Work gave Holsome money to purchase cocaine. Work became extremely concerned when Holsome did not return with the cocaine that same day, so he told Smith that if Smith could not get Holsome to deliver the cocaine, Smith was going to have to take Work to find Holsome. Work testified that on the following day, Defendant delivered to him the cocaine he had asked Holsome to purchase. Work and Defendant discussed the fact the delivery was "light," and Defendant said that he "would see what he could do" to remedy the problem.

Smith testified he was at Holsome's house when Holsome went into another room and called Defendant, asking him to make a drug delivery. Defendant arrived shortly thereafter. On cross-examination Smith admitted that he neither heard nor saw Holsome make the call. Smith saw Holsome give Defendant a package of cocaine and heard Holsome ask Defendant to deliver it to Work. Smith drove Defendant to deliver the cocaine.

Defendant claims that he showed up at Holsome's house simply because he decided to stop by to visit his friend. Defendant's version has Smith giving Defendant a package, asking him to deliver it to Work, and Smith driving him to make the delivery.

Defendant was subsequently charged by grand jury indictment with three counts of trafficking cocaine and one count of conspiracy to traffic cocaine. He was acquitted of two counts of trafficking on the basis of the first two buys. We discuss below each of the issues Defendant raises, beginning with the jury instructions.

ENTRAPMENT JURY INSTRUCTIONS

New Mexico recognizes two entrapment defenses: one focuses on improper inducements used by the police (objective); the other focuses on the defendant's lack of predisposition to commit the crime charged (subjective). Baca v. State, 106 N.M. 338, 341, 742 P.2d 1043, 1046 (1987). Defendant proposed jury instructions based on Baca, which the trial court rejected. The instruction given stated:

Evidence has been presented that the defendant was induced to commit the crime by law enforcement officials or their agents using unfair methods of persuasion that created a substantial risk that the crime would be committed by a reasonable person in defendant's circumstances who was not otherwise ready and willing to commit the crime. For you to find the defendant guilty, the state must prove to your satisfaction beyond a reasonable doubt that the defendant was not induced to commit the crime by such methods.

This instruction is the one suggested in State v. Sheetz, 113 N.M. 324, 329, 825 P.2d 614, 619 (Ct.App.1991).

Defendant argues that the instruction given misstated New Mexico law by injecting a predisposition factor into the law of objective entrapment. The instruction is incorrect, according to Defendant, because it contains language stating that the unfair methods of persuasion must create " 'a substantial risk that the crime would be committed by a reasonable person in defendant's circumstances who was not otherwise ready and willing to commit the crime.' " We disagree for two reasons.

First, as the State has argued, the instruction provides guidance for the jury by articulating an appropriate " 'reasonable person' " standard. Most jurors are not likely to have been in similar circumstances and thus might not naturally imagine that a reasonable person would be in such circumstances. Thus, the jury should be reminded to consider the effect of police activity on a reasonable, law-abiding person. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 467, 591 P.2d 947, 955 (1979) (en banc).

Second, the objective test, according to Justice Frankfurter, "shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime." Sherman v. United States, 356 U.S. 369, 384, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (1958). Simply stopping the instruction after "reasonable person in defendant's circumstances" would not be satisfactory because such an instruction would bar police conduct that would induce only those who intended to commit the crime and were simply awaiting an opportunity. The language, "who was not otherwise ready and willing to commit the crime," does not shift the focus to the defendant, but rather provides the jury the remainder of the necessary framework within which to assess the police action.

The language of the Sheetz instruction finds support in commentary explaining the Model Penal Code's adoption of the objective standard. Model Penal Code Sec. 2.13(1)(b) (1985). In explaining the objective theory, the Code states:

For most methods of inducement or persuasion, the crucial inquiry under Subsection (1)(b) is whether they create a substantial risk that offenses will be committed by persons other than those who are ready to commit them. The main criterion for evaluating the propriety of police methods is, therefore, the likely effect of such methods on law-abiding persons, and the propensities of the particular defendant are irrelevant.

Id. commentary 3 at 411. Furthermore, a footnote to this commentary states that even though the objective defense requires evaluation of police conduct rather than of a defendant's predisposition, such an evaluation must consider surrounding circumstances, and this sometimes includes defendant's prior activities. Id., 356 U.S. at 411-12 n. 17, 78 S.Ct. at 879-80 n. 17.

The language from Sheetz instructs the jury to look at the activities of the police; it does not require the jury to make a determination as to this specific defendant's predisposition, or lack thereof, to traffic cocaine. Rather, the language provides the jury with handles by which to grasp the problem presented when a defendant raises objective entrapment. The language should assist the jury in reaching an appropriate resolution of the factual issues with which they are charged when asked to determine whether "the police exceeded the standards of proper investigation." Baca, 106 N.M. at 341, 742 P.2d at 1046. That is all the instruction can be expected to accomplish. See People v. Grant, 165 Cal.App.3d 496, 211 Cal.Rptr. 343, 345-46 (Ct.App.1985). See generally The Honorable Leslie C. Smith, "Entrapment," Vol. 32, No. 50, SBB 6, 7 (Dec. 16, 1993), U.J.I. 14-5160 (discussing the proposed new instruction on objective entrapment). We address the second and third issues next and together, because they both involve sufficiency of the evidence.

SUFFICIENCY OF THE EVIDENCE

Defendant's second issue is that he was entrapped as a matter of law and that the trial court erred in denying his motion for a directed verdict on all trafficking...