State v. Trujillo
| Decision Date | 31 October 1994 |
| Docket Number | No. 29643-4-I,29643-4-I |
| Citation | 75 Wn.App. 913,883 P.2d 329 |
| Parties | STATE of Washington, Respondent, v. Edward Anthony TRUJILLO, Russell James Hebert, Jr., Defendants, Terrance Blaine Chrisostomo, Appellant, Alan Darry Frank, and Brett Anthony Coleman, and each of them, Defendants. |
| Court | Washington Court of Appeals |
Gregory Eugene Jackson, Seattle, for respondent.
Terrance B. Chrisostomo appeals his conviction of one count of delivery of cocaine. He claims the trial court erred by refusing to instruct the jury on the defense of entrapment. We affirm.
In January, 1991, the management of the Ball-Incon Glass Packaging Company (Ball-Incon) asked the Seattle Police Department to investigate suspected drug transactions taking Chrisostomo testified that one day at work, Skinner asked him whether he knew where Skinner and his friend could get an eightball. Chrisostomo asked, "eight-ball?", and Skinner said he meant an eight-ball of cocaine. Chrisostomo replied that he "didn't know the first thing about it."
place on company property and involving company personnel. Detective Michael D. Keefe of the narcotics unit contacted Don Skinner, a paid informant with whom he had previously worked, and arranged for Skinner to become a Ball-Incon employee. In February 1991, Skinner began working at Ball-Incon under the name of Don Jensen and was assigned to Chrisostomo's crew.
Skinner asked Chrisostomo whether he knew anyone who did know something about it. Chrisostomo replied, "not for sure", but "maybe somebody I know might know, but I couldn't tell you exactly." When Skinner asked if Chrisostomo would check, he told Skinner he "couldn't guarantee anything."
The two men continued to talk. Chrisostomo commented about the recent nice weather and remarked that there had to be a better way to make a living. He testified that, by this comment, he meant nothing more than to imply that there had to be something better than the rotating shift schedule used at Ball-Incon, which interfered with sleeping and social plans. Skinner interpreted Chrisostomo's comment to mean dealing drugs: According to Skinner, Chrisostomo replied, "We'll have to talk." Skinner interpreted this as suggesting a drug transaction.
Skinner asked Chrisostomo about getting cocaine on at least three occasions over the next 3 or 4 days. Each time, Chrisostomo told him he had no information. On one occasion, Skinner asked Chrisostomo what he thought the price of an eight-ball would be. Chrisostomo said he did not know for certain, but estimated $150. Eventually, Chrisostomo informed Skinner an eight-ball cost $250.
On March 7, 1991, Chrisostomo and a co-worker drove into a fast food restaurant's parking lot and saw Skinner and another man sitting in a car parked nearby. 1 Skinner approached Chrisostomo and asked him if he had obtained the cocaine. 2 When Chrisostomo said he was unable to get any cocaine, Skinner pressed him for an explanation. Chrisostomo lied and said the person with whom he spoke had no cocaine. In fact, Chrisostomo had not talked to anyone. Skinner suggested that he and Chrisostomo meet later that night at a nearby tavern. He gave Chrisostomo his pager number with directions to call him when he had information. Skinner asked for Chrisostomo's telephone number. In response, Chrisostomo gave him a number he knew had been disconnected so Skinner would be unable to contact him by telephone.
When Chrisostomo arrived home, he called a friend, thinking he might know where to get cocaine. Approximately 1 1/2 hours later, the friend called and said he was able to obtain some cocaine. Chrisostomo asked the friend to meet him at the tavern where Skinner was waiting. Chrisostomo then called the tavern and arranged to meet Skinner that evening. He testified that he did not call Skinner's pager number so Skinner would be unable to obtain the telephone number from which he was calling.
At the tavern, Chrisostomo obtained the cocaine from his friend and delivered it to Detective Keefe in exchange for $250. According to Chrisostomo, he delivered the cocaine solely in an attempt to get Skinner to stop pestering him. Chrisostomo testified: "I figured the only way I could get this guy to leave me alone was to get him what he wanted, and that was basically what I--against my better judgment, that's what I did."
Chrisostomo was charged with one count of delivery of cocaine. The State objected to the instruction on the defense of entrapment. The court removed the instruction over defense
counsel's objection. The jury found Chrisostomo guilty as charged. He was sentenced to 21 months' imprisonment, the bottom of the standard range.
The defense of entrapment is statutorily defined as:
(1) In any prosecution for a crime, it is a defense that:
(a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and
(b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.
(2) The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.
RCW 9A.16.070.
Generally, an instruction can be given to the jury if evidence exists to support the theory upon which the instruction is based. State v. Davis, 119 Wash.2d 657, 665, 835 P.2d 1039 (1992). With respect to the quantum of proof necessary to entitle a defendant to an entrapment instruction, we hold that a defendant must present evidence which would be sufficient to permit a reasonable juror to conclude that the defendant has established the defense of entrapment by a preponderance of the evidence. We recognize that in State v. Galisia, 63 Wash.App. 833, 836, 822 P.2d 303, review denied, 119 Wash.2d 1003, 832 P.2d 487 (1992), the court held that a defendant need only produce "some evidence" to support an entrapment instruction. 3 We conclude that, in light of State v. Riker, 123 Wash.2d 351, 869 P.2d 43 (1994) and our discussion of the defendant's burden of proof on the entrapment defense in State v. Chapin, 75 Wash.App. 460, 471-72, 879 P.2d 300 (1994), this statement of the required quantum of proof is overly broad and improperly entitles a defendant to an entrapment instruction upon production of a mere scintilla of evidence. A scintilla of evidence is not sufficient to justify an entrapment instruction. State v. Gray, 69 Wash.2d 432, 435, 418 P.2d 725 (1966).
Accordingly, in the instant case, Chrisostomo was not entitled to an instruction on the defense of entrapment unless he produced sufficient evidence to persuade a reasonable jury that he has established the defense by a preponderance of the evidence.
A police informant's use of the normal amount of persuasion to overcome the defendant's expected resistance to sell drugs is not entrapment; nor is the use of deception, trickery, or artifice by the police. State v. Smith, 101 Wash.2d 36, 42-43, 677 P.2d 100 (1984); State v. Vinson, 74 Wash.App. 32, 37, 871 P.2d 1120 (1994); State v. Enriquez, 45 Wash.App. 580, 585, 725 P.2d 1384 (1986), review denied, 107 Wash.2d 1020 (1987). In order to show entrapment, a defendant must show more than mere reluctance on his or her part to violate the law. State v. Enriquez, 45 Wash.App. at 585, 725 P.2d 1384. Accepting Chrisostomo's version of the facts as true, we nevertheless find that he failed to produce sufficient evidence to meet his burden of proof.
In Enriquez, an informant met with the defendant six times during a span of 2 1/2 to 3 weeks. The informant told the defendant he knew...
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