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STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
DAVID BELKNAP,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, James
Waylon Counts, District Judge
Hector H. Balderas, Attorney General,
James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellant
Jorge A. Alvarado, Chief Public Defender,
Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellee
LINDA M. VANZI, Judge. WE CONCUR: JAMES J.
WECHSLER, Judge, MICHAEL D. BUSTAMANTE, Judge
{1} The State appeals
from the district court’s grant of a motion to dismiss in favor of Defendant
David Belknap, who was charged with two counts of distributing marijuana,
contrary to NMSA 1978, Section
30-31-22(A)(1)(a) (2011). The district court
granted the motion on the sole basis of normative objective entrapment. The
State raises two issues on appeal: (1) it was error to decide an
uncorroborated, factually contested entrapment defense in favor of Defendant as
a matter of law; and (2) if normative entrapment could have been decided as a
matter of law, it should have been decided in favor of the State. Defendant
counters that there was no error below and, alternatively, that since the facts
also meet the elements of subjective entrapment, we can affirm according to the
“right for any reason” doctrine.
See State v. Allen,
2014-NMCA-111, ¶ 6,
336 P.3d 1007 (internal quotation marks and citation omitted),
cert. denied,
2014-NMCERT-010, 339 P.3d 425. We reverse.
{2} At the hearing on
his motion to dismiss for entrapment, Defendant described the series of events
that led him to sell marijuana on two occasions to Marc Brusuelas, a narcotics
agent working undercover for the Otero County Sheriff’s Office. Defendant
testified that in the month leading up to the transactions, he received
numerous, persistent phone calls, text messages, and a voice message from
Martín Sanchez, who was his high school classmate and former co-worker. In
these communications, Sanchez, who was working as a confidential informant for
Agent Brusuelas and the Sheriff’s Office, repeatedly asked Defendant if he
could get him any marijuana, though Defendant testified that he was only
personally using marijuana, was not dealing it, and had never sold drugs to
Sanchez in the past. Defendant mostly avoided Sanchez’s calls, but over time
the communications became more urgent, and Sanchez grew increasingly angry. On
one occasion, he called Defendant from an unknown number and asked for
marijuana, saying that his cousin had back pain and was “hurting real bad,”
which appealed to Defendant’s sympathies as a victim of chronic pain himself.
But, despite this plea, Defendant steadfastly refused to get involved.
{3} On October 17,
2011, Sanchez showed up at Defendant’s home unannounced, which was intimidating
to Defendant, who knew of Sanchez’s reputation as “a mean person,” who “likes
to retaliate,” slashes people’s tires, burns people’s houses down, and has
physically assaulted people in the past. In the wake of this visit, Defendant
“finally caved into [Sanchez’s] pressure” and agreed to sell him marijuana.
Defendant testified that he agreed to sell the drugs in order to stop the
harassment from Sanchez and because he felt both intimidated by and sorry for
Sanchez’s cousin. In the following days, Sanchez and his “cousin,” who was
actually Agent Brusuelas working undercover, bought $100 and $60 worth of
marijuana from Defendant in two transactions.
{4} The State’s case
sought to undermine any notion that Defendant was an innocent citizen, only
coerced into selling drugs out of fear and sympathy. The State’s only witness,
Agent Brusuelas, had no direct knowledge of the nature of the communications
between Defendant and Sanchez, but he testified that Defendant’s demeanor
during both transactions was “pretty relaxed, pretty comfortable with
[Brusuelas’s] presence” and that Defendant’s conduct was consistent with that
of a drug dealer and not a person operating out of fear. The State also played
an audio recording of the second transaction, during which Defendant can be
heard inducing Agent Brusuelas to purchase a larger quantity of marijuana:
Defendant: You
just needed sixty, right?
Brusuelas: [Sanchez]
says a forty?
Defendant: You
get a better deal. . . you get a half gram for free, instead of just buying it
by the gram.
Defendant: You
want it for sixty then?
Brusuelas: Yeah,
sure. I’ll take what you got.
Defendant: Yea
cause this gets you three and a half grams and a forty just gets you two, you
know what I mean. You get like an extra half gram for free.
Defendant can also be heard on the recording attempting to
solicit future business from Agent Brusuelas:
Defendant: I
should be getting some better tomorrow. . . . My guy has been running out
lately. . . . He’s got the Washington connect, bro, and like, I got Cali love,
but Washington . . . mountain men grow that . . .
Brusuelas: When
are you gonna get some of that?
Defendant: Either
tomorrow or the next day. . . . As soon as I get a phone call I normally just
send a text out and tell them “goods here.”
Agent Brusuelas then testified that Defendant gave him his
personal cell phone number to set up future deals, and later, contrary to
Defendant’s testimony, Defendant introduced Agent Brusuelas directly to his
supplier.
{5} The district
court ultimately concluded that “[t]he State presented no evidence which called
Defendant’s credibility into question, nor which disputed any of Defendant’s
assertions.” In its order granting the motion to dismiss, the court expressed
concern that “[p]estering someone who was not engaged in drug sales into
selling drugs through intimidation, appeals to past friendship, and appeals to
help someone suffering from a medical condition does not serve to curb crime
and constitutes police conduct that exceeds the standards of proper
investigation.” The State timely appealed.
{6} New Mexico
recognizes subjective and objective forms of entrapment.
State v. Vallejos,
1997-NMSC-040, ¶ 10,
123 N.M. 739,
945 P.2d 957. The subjective defense is
available “when the criminal design originates with the officials of the
government, and they implant in the mind of an innocent person the disposition
to commit the alleged offense and induce its commission in order that they may
prosecute.”
Id. ¶ 5 (internal quotation marks and citation omitted). The
defense is not available if the defendant was already disposed to commit the
crime.
Id. Thus, under the subjective standard, “the focal issue is the
intent or predisposition of the defendant to commit the crime.”
Id.
(internal quotation marks and citation omitted).
{7} The broader,
objective defense, can be demonstrated in two ways, one factual and one
normative:
[I]f a jury finds as a matter of
fact that police conduct created a substantial risk that an ordinary person not
predisposed to commit a particular crime would have been caused to commit that
crime, or if the trial court rules as a matter of law that police
conduct exceeded the standards of proper investigation, then criminal charges
should be dismissed.
Id. ¶ 11. While factual entrapment focuses on “the
likely effect of police conduct on a hypothetical person not predisposed to
commit the crime[,]” the focus of the normative inquiry is on the standards of
proper investigative conduct, particularly prohibiting investigative activity
that employs unconscionable methods or advances illegitimate purposes. Id.
¶¶ 12, 16-18. Thus, under the normative component,
the district court must carefully
scrutinize both the methods and purposes of police conduct to determine whether
police tactics offend our notions of fundamental fairness, or are so outrageous
that due process principles would absolutely bar the government from invoking
judicial processes to obtain a conviction.
State v. Shirley, 2007-NMCA-137, ¶ 17, 142 N.M. 765,
170 P.3d 1003 (alteration, internal quotation marks, and citation omitted). In
this case, the district court dismissed the charges against Defendant on the
ground that “the police conduct exceeded the standards of proper
investigation”—a finding of normative objective entrapment as a matter of law.
Since there was no evidence presented that the police advanced an illegitimate
purpose, we construe the district court’s order as a finding of unconscionable
methods.
{8} Vallejos
provides a list of helpful “indicia of unconscionability[,]” which, in relevant
part, includes
an extreme plea of desperate
illness, an appeal based primarily on sympathy or friendship, persistent
solicitation to overcome a defendant’s demonstrated hesitancy, the use of . . .
physical or psychological coercion to induce the commission of a crime, . . .
unjustified intrusion into citizens’ privacy and autonomy, . . . excessive
involvement by the police in creating the crime, [and] the manufacture of a
crime from whole cloth[.]
1997-NMSC-040, ¶ 18 (alteration, internal quotation marks,
and citations omitted). A finding of normative entrapment is “an extreme remedy
for extreme government behavior.” Id. ¶ 20. “[T]he question whether a
given undercover operation is poor police strategy or a misguided waste of
taxpayer money is beyond the scope of the inquiry.” Id. ¶ 21 (internal
quotation marks and citation omitted). On appeal, we review de novo the
application of normative standards of objective entrapment. In re Alberto L.,
2002-NMCA-107, ¶ 15, 133 N.M. 1, 57 P.3d 555.
Credibility Issues and Factual
Disputes
{9} While “the
determination of the proper standards of police investigation is a question of
law and policy to be decided by the courts in the first instance[,]” our
Supreme Court has stated that “the jury may resolve factual disputes where
credibility is an issue or where there is conflicting evidence pertaining to
what events transpired.”
Vallejos,
1997-NMSC-040, ¶¶ 16, 20 (alteration,
internal quotation marks, and citation omitted);
see also UJI
14-5161
NMRA committee commentary (“Ordinarily, the judge decides the issue whether the
alleged conduct, if it occurred, was acceptable as a matter of law, leaving for
the jury the issue of whether this misconduct did occur.”). In
Shirley,
we applied this language to uphold the lower court’s denial of a motion to
dismiss for objective entrapment because the defense hinged entirely on the
defendant’s credibility.
2007-NMCA-137, ¶¶ 21, 30. We cited “our general
understanding that the jury determines the credibility of witnesses” and rejected
the notion that a defendant’s uncorroborated testimony must be believed.
Id.
¶¶ 28-29. We specifically declined to adopt “the per se rule,” established in
United
States v. Bueno, 447 F.2d 903, 906 (5th Cir. 1971), which would have
required the State to call its confidential informant to the stand to directly
contradict the defendant’s version of events in order to survive a motion to
dismiss for entrapment as a matter of law.
Shirley,
2007-NMCA-137, ¶¶
25-26, 28.
{10} In this case, as in
Shirley,
Defendant presented uncorroborated testimony that the police exceeded the
standards of proper investigation. As in
Shirley, “[w]here a defendant’s
claim of entrapment is uncorroborated, the question of [a d]efendant’s
credibility is best left to the jury to decide.”
Id. ¶ 30. We do not
opine as to whether a district court must be automatically reversed on appeal
for weighing credibility and granting a defendant’s motion on a factually
contested entrapment defense as a matter of law, or, as the States calls it, “invad[ing]
the province of the jury.”
See Vallejos,
1997-NMSC-040, ¶ 20 (“[T]he
jury
may resolve factual disputes.” (emphasis added)). Instead, we
conclude only that the district court erred when it found that “[t]he State
presented no evidence which called Defendant’s credibility into question, nor
which disputed any of Defendant’s assertions[,]” and then ruled as a matter of
law on that basis. The credibility of Defendant’s uncorroborated testimony was
necessarily in question according to
Shirley. Against Defendant’s
version of events, including his testimony that he was harassed by Sanchez,
that he was not a drug dealer, that he was operating out of fear of both
Sanchez and Agent Brusuelas, and that he sought to violate the law to the
minimum extent possible, the State presented testimony that Defendant seemed
“pretty relaxed, pretty comfortable” selling drugs. The State’s corroborating
audio recording evinced Defendant attempting to negotiate higher quantity sales
and the future sales of superior product to the purportedly intimidating Agent
Brusuelas. This evidence plainly contradicts the thrust of Defendant’s
entrapment claim—that Sanchez and Brusuelas exceeded the bounds of proper
investigation by continually harassing and intimidating Defendant into breaking
the law. Thus the only apparent explanation for the district court’s finding
that the State did not challenge Defendant’s credibility or create any factual
dispute is that the court implicitly faulted the State for not calling Sanchez
to testify. In other words, it applied the “per se” rule from
Bueno that
we rejected in
Shirley,
2007-NMCA-137, ¶ 28. It did so in error.
Sufficiency of the Evidence for
an Entrapment Instruction
{11} The State argues
that Defendant should not get a jury instruction on normative entrapment absent
additional proof on remand.
See Vallejos,
1997-NMSC-040, ¶ 34 (stating
that the instruction should be given “assuming the production of sufficient
evidence to support the defense”). We disagree. Viewing the evidence in the
light most favorable to Defendant, the police manufactured a crime “from whole
cloth” contrary to
Vallejos.
Id. ¶ 18 (internal quotation marks
and citation omitted). Defendant’s testimony, if credited, establishes that the
police used a confidential informant with a reputation for retaliation and
violence to persistently and angrily harass Defendant over the course of a
month by calling him “over and over and over again,” sending him unsolicited
text messages from unknown phone numbers, and, when these efforts failed,
showing up at his home unannounced and uninvited. The harassment continued
despite Defendant’s steadfast refusal to engage in the sale of marijuana. The
State argues that “ ‘[p]estering’ does not rise to the level of entrapment,”
but our Supreme Court has specifically cited “persistent solicitation to
overcome a defendant’s demonstrated hesitancy” as an example of an
unconscionable method.
Id. While credibility issues require reversal of
the district court’s decision to grant Defendant’s motion as a matter of law,
we find sufficient evidence to support a normative entrapment instruction (UJI
14-5161) for the jury.
See Vallejos,
1997-NMSC-040, ¶ 34
{12} The parties’ final
dispute is whether we can affirm the district court’s ruling as a matter of law
on the alternative basis of subjective entrapment. Although the issue of
subjective entrapment was neither argued nor considered at the evidentiary
hearing, “we will uphold the decision of a district court if it is right for
any reason.”
Allen,
2014-NMCA-111, ¶ 6 (internal quotation marks and
citation omitted).
{13} The trier of fact
typically determines whether subjective entrapment has occurred by considering
whether the defendant was already predisposed to commit the crime.
State v.
Fiechter,
1976-NMSC-006, ¶ 11,
89 N.M. 74,
547 P.2d 557;
Alberto
L.,
2002-NMCA-107, ¶ 8. In
State v. Schaublin, we stated that
“[u]nder rare circumstances, the issue of subjective entrapment may be resolved
as a matter of law, in which instance, the fact-finder would not consider the
defendant’s predisposition.”
2015-NMCA-024, ¶ 12,
344 P.3d 1074,
cert.
denied, 2015-NMCERT-002, 346 P.3d 370. Despite this language, we can locate
no New Mexico case that has actually applied the doctrine as a matter of law,
and Defendant fails to explain why this case, which involves disputed facts,
involves the “rare circumstances” alluded to in
Schaublin. This is not
an appropriate situation to rule on subjective entrapment as a matter of law,
see
Sherman v. United States, 356 U.S. 369, 373 (1958) (ruling on the issue as
a matter of law only because the Court was “not choosing between conflicting
witnesses, nor judging credibility”), particularly on appeal via application of
the right for any reason doctrine,
see State v. Wilson,
1998-NMCA-084, ¶
17,
125 N.M. 390,
962 P.2d 636 (“Appellate courts usually apply the right for
any reason basis of affirmance to strictly legal questions.”). Defendant’s
testimony that he was not already disposed to deal drugs when the investigation
began is in doubt. Accordingly, the issue of subjective entrapment, like the
issue of objective entrapment, is for the jury in this case.
{14} The decision of the
district court is reversed and remanded for proceedings consistent with this
Opinion.
MICHAEL D. BUSTAMANTE, Judge