State v. Sheetz, No. 12710

• Decision Date: 23 December 1991
• Docket Number: No. 12710
• Citation: 1991 NMCA 149,113 N.M. 324,825 P.2d 614
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Paul SHEETZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 614

825 P.2d 614

113 N.M. 324

STATE of New Mexico, Plaintiff-Appellee, v. John Paul SHEETZ, Defendant-Appellant.

No. 12710.

Court of Appeals of New Mexico.

Dec. 23, 1991.

[113 N.M. 325] Tom Udall, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Robert J. Jacobs, Taos, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his convictions for two counts of trafficking in controlled substances, one for heroin and one for cocaine. Among the issues he raises are that he was entrapped as a matter of law under the objective standard set forth in Baca v. State, 106 N.M. 338, 742 P.2d 1043 (1987), and, if not, then at least the court below should have instructed the jury in accordance with his proposed instruction relying on Baca's objective standard. Because we believe the evidence raised credibility issues, we cannot say defendant was entrapped as a matter of law. However, defendant's testimony in this case, if credited, showed that the police exceeded the standards of proper investigation under Baca. Accordingly, we reverse and remand for further proceedings and for a new trial, if necessary. Because of our disposition, we need not discuss the other issues defendant raises.

The issue of entrapment was raised solely by defendant's testimony, although nothing in the state's case directly cast doubt on that testimony. Indeed, the state's police witnesses admitted that there was an informant who was probably paid $100 on this case.

Defendant testified that he was an oil-field worker when he was introduced, by a co-worker, to Jerry Allan Mabrey in June of 1989. A few days later, Mabrey stopped by defendant's house and offered him heroin. Defendant had used heroin several times in the past, the last time being about a year before this incident. Defendant's former girlfriend was a user.

Defendant accepted Mabrey's offer and the two used the heroin Mabrey brought. During the rest of the summer, Mabrey continued to bring heroin to defendant and the two used it. Sometimes Mabrey would go to defendant's house every day; sometimes it was every few days. The frequency of the visits increased as the summer progressed. By September, defendant was addicted and was buying his own heroin from his former girlfriend's supplier.

In early August, Mabrey asked defendant to get some drugs for Mabrey's friend Milt. Unbeknown to defendant, Milt was an undercover detective. Defendant refused. Later, however, Mabrey began to make repeated requests to defendant to obtain drugs for Milt. Mabrey reminded defendant of all the heroin Mabrey had given defendant. Mabrey had the idea that defendant could overcharge Milt for the drugs and thereby obtain money to buy drugs for Mabrey and defendant to use. At this time, Mabrey was experiencing withdrawal symptoms. Also, defendant was intimidated by Mabrey, whom he considered to be a violent person.

Ultimately, defendant purchased drugs for Milt on two occasions in September. On each occasion, Milt was overcharged. On the cocaine transaction, defendant used the extra money to buy heroin for himself and Mabrey. On the heroin transaction, defendant "pinched" some heroin off the heroin he gave Milt, and defendant and Mabrey used this heroin.

This case requires us to decide whether Baca is limited to its facts and, if not, who decides issues under the objective standard for entrapment. These issues arise because, when defendant moved for a directed verdict below, the court below denied the motion, ruling that there were credibility issues involved. However, when defendant requested a non-Uniform Jury Instruction in accordance with Baca, the court below would not give such an instruction, believing Baca was limited to its facts. This was incorrect, as the state acknowledges.

In Baca, the facts were that defendant acted as a mere conduit after the informant arranged a transaction in which Baca did nothing more than get drugs from one police agent and give them to another. There is nothing in the Baca opinion itself indicating that its holding is limited to circular transactions. Its holding is that:

[A] criminal defendant may successfully assert the defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation, as here where the government was both the supplier and the purchaser of the contraband and defendant was recruited as a mere conduit. [Emphasis in original.]

Id. at 341, 742 P.2d at 1046. This language indicates that the circumstance of a circular transaction is but one of many instances in which the police could exceed the standards of proper investigation. Thus, the fact that Mabrey did not coax defendant into a circular transaction is not fatal to this appeal.

Nor do we agree with the state's argument that Mabrey was not an agent of the police. United States v. Busby, 780 F.2d 804 (9th Cir.1986), on which the state relies, is distinguishable because the informant in that case was not working as an informant at the time of the relevant transaction. Here, in contrast, the officers admitted that Mabrey was an informant at the relevant time and was probably paid $100 for this case. Thus, the informant here was an agent of the police. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); State v. Padilla, 91 N.M. 451, 575 P.2d 960 (Ct.App.1978); cf. State v. Lopez, 109 N.M. 578, 787 P.2d 1261 (Ct.App.1990) (private investigator not working for police).

Having determined that Baca 's objective standard, focussing on the misconduct of the police, potentially applies to this case, we must next determine (1) whether this case, as Baca, calls for a determination as a matter of law by this court that defendant was entrapped; (2) whether the trial court is the proper entity to make the decision; or (3) whether the decision is best left to the jury. In Baca, the facts were undisputed that the transaction occurred in a circular fashion, with defendant acting as a mere conduit. Thus, there were no factual issues to decide, and the appellate court could hold as a matter of law that Baca was entrapped. See also, e.g., State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (Ct.App.1972).

In this case, however, as the court below noted in denying defendant's motion for directed verdict, there were credibility issues. The court below did not, as the state contends, rule that defendant's testimony was incredible as a matter of law. Nonetheless, defendant's entrapment defense was made by his own testimony, and the state attempted to cast doubt on defendant's testimony by arguing that his story did not ring true. Why, asked the state, would Mabrey provide defendant with hundreds of dollars of heroin in return for a mere $100 payment from the police? The court below was correct that this argument raised a credibility issue. Thus, this is not an appropriate case for this court to find entrapment as a matter of law.

The next question is whether the trial court or the jury should decide the issue, both on remand in this case and in future cases. In our view, both the trial court and the jury should decide, in a manner similar to that in which voluntariness of a confession is decided. See State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.) (jury passes on voluntariness only after judge has independently resolved the issue against the accused), cert. denied, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971). Thus even though we hold that there was no entrapment as a matter of law, the court below, on remand in this case, will be able to resolve the issue as a matter of fact. Our ruling on this matter is based on the policies underlying our supreme court's readoption of the doctrine of entrapment under an objective standard, see Baca v. State, and our supreme court's recent reaffirmation of the importance of the jury's role in the criminal justice system, see State v. Sanchez, 109 N.M. 428, 786 P.2d 42 (1990).

Several jurisdictions that utilize the objective definition of entrapment view the issue as a matter to be resolved by the court without the jury. See, e.g., Grossman v. State, 457 P.2d 226 (Alaska 1969); People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973); see also Paul Marcus, The Entrapment Defense, Secs. 5.06, 5.08 (1989); Bennett L. Gershman, Prosecutorial Misconduct, Sec. 1.2(d) (1989); Model Penal Code Sec. 2.13(2); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Sec. 5.3(b) (1984). There are two reasons for this perspective. First, objective entrapment raises issues concerning the sound administration of justice, which is the unique responsibility of the courts. Second, judges decide cases by written opinions that offer guidance to law enforcement. See People v. D'Angelo, 401 Mich. 167, 257 N.W.2d 655 (1977).

Other states hold that the issue may be decided by the trial court if the facts relating to the issue are not disputed; however, when the facts are in dispute and the determination involves matters of credibility, objective entrapment is an issue to be submitted to the jury. See, e.g., State v. Mullen, 216 N.W.2d 375 (Iowa 1974); State v. Powell, 68 Haw. 635, 726 P.2d 266 (1986); Rodriguez v. State, 662 S.W.2d 352 (Tex.Crim.App.1984) (en banc); State v. Wilkins, 144 Vt. 22, 473 A.2d 295 (1983). This view is based on the view that determinations of credibility are traditionally the province of the jury. In addition, since the issue turns on both the nature of the inducement used by the police and its effect on people, there is some feeling that the jury should be allowed to determine the issue. See 1 LaFave & Israel, supra.

Because entrapment is uniquely a matter of state law, Baca v. State, we believe we are free to adopt a hybrid approach that draws on the strengths of both views. Thus, we hold that the issue should first be resolved by the trial court. The resolution will involve two inquiries....