State v. Vallejos

• Decision Date: 03 July 1996
• Docket Number: No. 16282,16282
• Citation: 1996 NMCA 86,924 P.2d 727,122 N.M. 318
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Vincent VALLEJOS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 727

924 P.2d 727

122 N.M. 318

STATE of New Mexico, Plaintiff-Appellee, v. Vincent VALLEJOS, Defendant-Appellant.

No. 16282.

Court of Appeals of New Mexico.

July 3, 1996.

Certiorari Granted Aug. 1, 1996.

[122 N.M. 320] Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Santa Fe, for plaintiff-appellee.

T. Glenn Ellington, Chief Public Defender, Bruce Rogoff, Acting Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

¶1 This case provides us with the opportunity to clarify the law of entrapment in New Mexico, as well as to define the standard of review that we use in evaluating the various entrapment issues raised by a defendant when he is claiming objective entrapment. We hold that: (1) predisposition generally still has a place in the New Mexico law of objective entrapment; (2) the question of what are proper standards of police practice is an issue of law to be decided by the trial court, not the jury, and the determination of the propriety of such standards is freely reviewable on appeal; (3) when conflicting evidence is presented, either on the issue of what the police have done or what the defendant has done, and when that evidence, when viewed in the light most favorable to the defendant meets the legal standard of entrapment, a trial court has discretion to which we will defer on the question of whether to dismiss the charges or submit the question of entrapment to the jury; but (4) in the situation outlined in number (3), the trial court must at least submit the matter to the jury and does not have discretion to weigh the evidence and refuse a properly tendered entrapment instruction.

¶2 Defendant appeals his conviction for possession of cocaine. He raises four issues on appeal: (1) whether the trial court erred by finding, as a matter of law, that there was no objective entrapment in this case and, because of that ruling, refusing to instruct the jury on the defense of objective entrapment as set forth in Baca v. State, 106 N.M. 338, 742 P.2d 1043 (1987), and State v. Sheetz, 113 N.M. 324, 825 P.2d 614 (Ct.App.1991); (2) whether the trial court erred when it allowed evidence which created the misimpression that the entire police operation had been sanctioned by a judge as legal and proper; (3) whether the trial court improperly excused a juror who agreed with the defense theory of the case; and (4) whether the cumulative impact of these errors denied Defendant due process and a fair trial. We hold that the trial court did not err in finding no objective entrapment as a matter of law and in refusing to submit the matter to the jury. Since Defendant's remaining issues depend upon a favorable resolution of the jury-instruction question, they necessarily fail as well. We affirm.

FACTS

¶3 On November 17, 1993, police were involved in a "reverse sting operation" in an area of Albuquerque, New Mexico, known for the presence of significant drug trafficking. In the reverse sting, several undercover police officers acted as street dealers of crack cocaine, several more undercover officers acted as cover to protect the dealers, and another undercover officer remained inside a nearby apartment building as the seller of the cocaine.

¶4 Defendant approached Special Agent Gutierrez, who was working as cover to protect the undercover dealers, and asked if he could exchange a stereo for some crack-cocaine. Agent Gutierrez replied that he could. Defendant asked Agent Gutierrez if he was a "cop," to which Gutierrez answered that he was not. Defendant left and returned approximately 15 to 20 minutes later with a car stereo and asked Gutierrez if he was ready. Gutierrez accompanied Defendant to the apartment where the seller of the cocaine, Officer Griego, was located. Gutierrez announced Defendant as a client, and Defendant entered the apartment. When Defendant exchanged the stereo for the cocaine, he negotiated with Officer Griego for a larger piece of crack-cocaine than Griego had originally offered. The deal was consummated, and Defendant was arrested.

¶5 Defendant moved to dismiss the charges against him on the basis of police entrapment. After receiving testimony and arguments from both parties at a hearing on the motion, the trial court found as a matter of law that there was no objective entrapment.

¶6 During voir dire, a prospective juror stated that he did not feel that undercover police officers selling drugs was right and that he would be unable to convict someone for buying drugs from an undercover police officer. The trial court excused the prospective juror for cause.

¶7 At trial, the court allowed the State to introduce evidence demonstrating that the police officers' possession of the cocaine used in the operation was pursuant to a court order. The State's witness testified that the order permitted the police to sell crack cocaine to people who were looking for it.

¶8 After the evidence was presented, Defendant requested jury instructions on objective entrapment, which the trial court denied. Defendant did not seek the subjective-entrapment instruction. Defendant was subsequently convicted of one count of possession of cocaine in violation of NMSA 1978, Section 30-31-23 (Cum.Supp.1995).

DISCUSSION

JURY INSTRUCTION

Objective Entrapment and Predisposition

¶9 On appeal, Defendant argues that the trial court erred when it ruled, as a matter of law, that there was no objective entrapment in this case and when it refused to instruct the jury on the defense of objective entrapment. Additionally, Defendant contends that the description in Sheetz of what constitutes objective entrapment, upon which the trial court relied in its decision, incorrectly reinstated a predisposition factor into the Baca objective-entrapment standard. We disagree with both of these arguments.

¶10 New Mexico is one of a limited number of states which recognizes both the subjective defense of entrapment, focusing on the defendant's lack of predisposition, and the objective defense, focusing on improper police inducements and conduct. See State v. Buendia, 121 N.M. 408, 410, 912 P.2d 284, 286 (Ct.App.1996). The defense of objective entrapment is premised on the public policy against allowing the police to foster crime. Id.; see also Baca, 106 N.M. at 340, 742 P.2d at 1045. However, we hold that merely providing a person with an opportunity to commit a crime, absent any unfair police persuasion or involvement, is not entrapment.

¶11 As we said in State v. Gutierrez, 114 N.M. 533, 535, 843 P.2d 376, 378 (Ct.App.), cert. denied, 114 N.M. 501, 841 P.2d 549 (1992),

Sheetz teaches that law enforcement officers may exceed the bounds of proper investigation [and thereby engage in objective entrapment] in either of two ways: (1) when they coax a defendant into a circular transaction, or (2) when they use unfair methods of persuasion which create a substantial risk that a crime would be committed by a reasonable person in the defendant's circumstances who was not otherwise ready and willing to commit the crime. (Emphasis added.)

Indeed, in all of the New Mexico cases beginning with Baca, we find language such as instigate, recruit, entice, coax, persuade, and induce. Baca, 106 N.M. at 340-41, 742 P.2d at 1045-46; State v. Sellers, 117 N.M. 644, 647, 875 P.2d 400, 403 (Ct.App.), cert. denied, 118 N.M. 90, 879 P.2d 91 (1994); Gutierrez, 114 N.M. at 535-36, 843 P.2d at 378-79; Sheetz, 113 N.M. at 327, 825 P.2d at 617.

¶12 To be sure, our opinion in State v. Sainz, 84 N.M. 259, 261, 501 P.2d 1247, 1249 (Ct.App.1972), contained language that appeared to create a number of alternative methods of entrapment, and one included "conduct ... that if allowed to continue would shake the public's confidence in the fair and honorable administration of justice." However, we pointed out in Sheetz that Sainz was overruled, and it was only the Sainz holding that was resurrected. Sheetz, 113 N.M. at 328, 825 P.2d at 618. The Sainz holding involved a person acting as a conduit at the specific request of government agents, and we now must emphasize that none of the cases re-establishing a form of objective entrapment have gone so far as to eliminate any focus whatsoever on a hypothetical defendant and how the police methods would have induced him, or persuaded him, or incited him, or coaxed him. All of these words suggest a form of predisposition in that a person who is predisposed will require less inducement or persuasion to commit the crime. The difference between subjective entrapment and objective entrapment is that, while subjective entrapment focuses on the predisposition of the actual defendant before the court, objective entrapment focuses on the predisposition of a hypothetical person.

¶13 To the extent that Defendant's contention is that police complicity in illegality "would shake the public's confidence in the ... honorable administration of justice," and that such complicity should be grounds alone for entrapment, we disagree. The cases recognize that certain forms of criminal behavior may only be investigated and punished by police involvement. See, e.g., State v. Williams, 623 So.2d 462, 465 (Fla.1993). To allow such behavior to amount to entrapment would effectively nullify any efforts at eradicating such crime. See id.; see also State v. Akin, 75 N.M. 308, 311-12, 404 P.2d 134, 136-37 (1965). Thus, while objective entrapment does focus on police behavior, some element of a potential defendant's behavior must also ordinarily be considered. We therefore reaffirm the holding of Sellers in this regard, which rejected the defendant's argument that any predisposition factor is irrelevant in objective entrapment. See Sellers, 117 N.M. at 647, 875 P.2d at 403.

¶14 We note that some of the early formulations of objective entrapment were phrased in terms of whether the methods of persuasion or inducement would persuade the "average person" to commit the offense. See, e.g., Grossman...