State v. Taylor
| Decision Date | 07 August 1979 |
| Docket Number | Nos. 15631,15645,s. 15631 |
| Citation | 599 P.2d 496 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Albert TAYLOR, Defendant and Appellant. |
| Court | Utah Supreme Court |
Maurice Richards of Public Defenders Association, Ogden, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, Robert L. Newey, Weber County Atty., Ogden, for plaintiff-respondent.
Defendant appeals from two convictions, one by the court and one by the jury, of the crime of distributing for value a controlled substance, heroin, in violation of § 58-37-8(1)(a)(ii), U.C.A., 1953. Defendant has consolidated his two appeals because of the similarity of the factual and legal issues involved. The central issue is whether the trial court erred by denying defendant's motion to dismiss, predicated on the ground of entrapment. The convictions are reversed on the ground the conduct of the police, strictly as proved by the evidence adduced by the State, constituted entrapment, as a matter of law. All statutory references are to U.C.A., 1953 as amended.
Defendant's convictions can only be sustained on the basis of the testimony of a police undercover agent, Annette Stubbs. Stubbs became a heroin addict in approximately March 1977, at the age of seventeen. She supported her addiction by working as a prostitute in Salt Lake City and Ogden. At the time she first discussed becoming an agent for the Ogden police in September 1977, she was being prosecuted on a prostitution charge in Salt Lake City; she denied the police offered her assistance on the charge in exchange for her work as an agent.
The sequence of events which culminated in Stubbs becoming an employee of the police department in Ogden commenced in August 1977. Stubbs had a chance meeting with police officer Burnett; he told her to clean up her act and go home or he would put a "snitch jacket" on her. He rented a motel room for her for two nights for the sum of $40. Their next encounter was on September 21, 1977, on the street. Officer Burnett arranged a meeting with her later in the evening; she failed to appear. However, the next evening Stubbs went to the office of the narcotics task force. According to Burnett, Stubbs stated she had done some thinking and wanted to assist in rounding up heroin dealers. She also wanted to start a new life. After Stubbs volunteered, the police agreed to pay her $150 per person for those arrested. The payment was contingent on her testifying in court. Officer Burnett testified that he would, in fact, have put a "snitch jacket" 1 on Stubbs if she had stayed on the street.
Stubbs commenced her employment with the police on September 22, 1977. In addition to the $150 per person bounty, she was given at government expense an apartment, a telephone, and $100 per week expenses. During July, August, and September, Stubbs had a heroin habit of three to four balloons per day. Each balloon contained approximately a quarter teaspoon of a substance containing heroin. Each sold for $30. From September 22 to November 9, 1977, Stubbs averaged two balloons approximately every three days. Under the mode of operation, a controlled buy was arranged. Stubbs, a heroin "mainliner," was given $60 to purchase two balloons. She took a kit furnished by the police and injected the contents of one balloon in the presence of the seller. She "walked" with the other balloon and gave it to the police to be used as evidence. Police Officer Searle testified Stubbs was sick on many occasions (heroin withdrawal symptoms). She would then make a controlled buy and recover from her sickness. Stubbs admitted, in addition to the narcotics she took during the controlled buys, she used expense money on five occasions to purchase heroin.
Stubbs testified the police knew she injected narcotics when she made a controlled buy. When she didn't have heroin, she was sick. When she started working for the police, she averaged only one shot every two or three days, and she was "hurting pretty desperately." She admitted she "snitched" on friends. She made many telephone calls to catch all previous associates; some, who were her friends, helped her to procure heroin. She conceded the money she was to receive for her work was more than she had ever had in her life.
Police Lieutenant Hal Adair, who was in charge of the narcotics force, testified the department had spent $5,500 on Stubbs until the time of the trial. This sum did not include the $150 bonus per person or future costs. After the arrests of the persons accused of selling narcotics to Stubbs, she was placed in protective custody. The sum mentioned did not include the salaries of the police officers providing protection. Stubbs, under police supervision, withdrew from heroin use on November 9, 1977. She went "cold turkey" except for the police giving her valium every four hours.
Stubbs met defendant in March or April 1977; at the time, she was a prostitute and heroin addict. In the spring of 1977, Stubbs moved into the home of defendant's grandmother, where they lived for three or four weeks, enjoying conjugal rights. Then they moved to an apartment where they continued their intimate relationship until approximately a week prior to Stubbs' eighteenth birthday on July 14, 1977. Although Stubbs claimed she did not love defendant, she admitted he had told her he loved her. During the time they lived together, both were heroin addicts. Defendant went through a detoxification program after he moved from the apartment they shared, and returned to his grandmother's home. While the two lived together, they purchased their drugs and injected the substances together. Stubbs supported her addiction by prostitution; defendant was employed. Defendant never pandered for her. Both used all their money for drugs; each loaned the other money if one needed heroin.
When Stubbs asked defendant to leave their apartment there was no acrimony, and the two remained friends. Stubbs, in fact, admitted she shared defendant's bed one night in early September.
Defendant's convictions were for delivery of a controlled substance for value on October 4 and October 10, 1977. However, it is essential to review the course of conduct between Stubbs and defendant leading up to the time of these offenses.
Stubbs commenced her employment with the police on September 22, 1977. On September 27, 1977, she contacted defendant and informed him she was hurting and needed to "score." She requested he procure her two or three balloons. Stubbs admitted that when she called defendant, she let him believe she needed the drugs for her own use; when in fact she was getting him to furnish them so she could "bust" him. Defendant responded that he didn't have any narcotics, but that he'd try to help her. Defendant met her, and the two went together in his automobile to find some heroin. They went to three different places. Defendant went into Robertson's and procured the heroin. Stubbs informed defendant she did not want to share the drugs because she needed them for an elk hunting trip. (Their usual procedure was to share a balloon.) She paid him $10 for his driving her around town. Defendant claimed this sum was repayment of a loan.
On October 4, 1977, Stubbs telephoned defendant at 2:00 o'clock a. m. at his grandmother's house. She asked him to get her two bags of heroin. She informed him she would shoot one and walk with one. She claimed he requested $5. According to Stubbs, she went to defendant's home in a taxi; he answered her knock at the back door. She testified the first thing he asked was whether she had the money. She gave him the money, and he handed her two balloons. She cooked the contents of one balloon and injected it; the other she placed in her purse. Defendant queried what she wanted to do. She told him to call a taxi, which he did. She claimed that she ate a piece of watermelon while she waited. She was in the house approximately thirteen minutes. Defendant denied that any such transaction took place. He presented evidence indicating Stubbs had been present in his home some time early in the evening in the first part of October. She was sick, sweating, and looked pretty bad; she requested water to take a fix (she had her own narcotics). Defendant was taking a bath, and Stubbs talked with defendant's grandmother; then Stubbs evidently left. The defense attempted to show Stubbs had cached heroin in the house, which she then retrieved under police surveillance, creating the impression she had made a controlled purchase. (Under § 76-2-303(3), the defense of entrapment is available even though the actor denies commission of the conduct charged to constitute the offense.)
Defendant testified he had strong feelings for Stubbs during the end of September and first part of October. During the time they lived together, defendant claimed Stubbs told him she loved him. After they separated, they saw each other quite often at bars. During September, defendant was working nights and seldom saw Stubbs except on weekends; however, as noted, she did stay overnight with him once.
The second offense for which defendant was convicted occurred on October 10, 1977. Stubbs telephoned defendant and asked for two bags. Defendant responded he did not have any, would have to go procure it, and he would be home at 7:00 o'clock. The police rented a motel room for Stubbs. She called defendant at 7:30 p. m., informing him of her location. He told her he would be there in five minutes.
Stubbs conceded she had not had a fix for two or three days, and was sick when she called defendant; nevertheless, she claimed she contacted defendant to make a buy for the police, and not to procure a fix for herself. When defendant arrived at the motel, she paid him $60 for two balloons. They shared the contents of one, and she kept the other for evidence.
The defense emphasized the testimony of Stubbs that defendant did not have any heroin when she...
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