State v. Curtis , 1975 Utah LEXIS 795 ( 1975 )

CROCKETT, Justice:

Patry Curtis was convicted in a trial to the court of distributing a controlled substance (amphetamine) for value.¹ In attacking his conviction, he makes no contention that he did not commit the acts charged, but argues that the court committed error: (a) In ruling on evidence; and (b) in refusing to rule as a matter of law that he was entrapped into committing the crime.

The following facts are stated in defendant’s own brief: In March, 1974, Rose Ann Stout was working as an undercover agent. She made the acquaintance of defendant for the purpose of purchasing narcotics. She testified that her first “buy” of drugs from defendant occurred on April 8, 1974. Defendant, against his own interest testified thát during March and April of 1974 he was continuously procuring drugs for Mrs. Stout for her personal use.

Defendant’s brief further states that he: “. . . does not deny supplying Ms. Stout with amphetamines on June 18, 1974 [the transaction of which he was convicted] and on prior occasions. However, defendant testified that he never did so voluntarily but only at repeated urgings of Ms. Stout and never at any profit to himself.”

Ruling on Evidence

Defendant’s contention is that the trial court erred in limiting the cross-examination of Ms. Stout relating to her “motives, credibility, and pattern of practice” in her activities as an undercover agent. This contention can be disposed of by these general observations: It is to be conceded that each of the factors just stated are legitimate subjects of cross-examination; and that particularly in a criminal trial, a relatively high degree of tolerance should be indulged in the making of such inquiries.² This is to be weighed against the opposing propositions: that to enable the trial judge to perform his duty as the authority in control of the trial, in the interests of effective and orderly procedure, he is allowed considerable latitude of discretion in imposing reasonable limits on cross-examination; and, further, that unless it appears that there was a clear abuse of discretion, resulting in prejudicial error, his ruling thereon will not be disturbed.³

Applying the principles just stated to the situation here: we do not see that defense counsel was unduly restricted. The evidence elicited and the discussions between court and counsel adequately explored defendant’s claims with respect to the motives, credibility and methods of operation of the undercover agent so that there was no prejudicial error committed in the limitation placed on cross-examination. ,

Entrapment

It is to be realized that most crimes are committed in such secrecy as can be achieved. This includes particularly trafficking in drugs, which is often carried on under such devious schemes that effective detection and prosecution are greatly aided by the use of undercover agents.⁴ It is likewise true that where undercover agents are used, there always exists the possibility that unless their conduct is proper and circumspect, in attempting to catch those actually involved in unlawful activities, innocent persons may be induced into transgression. When this occurs, there is no doubt about the validity of the defense of entrapment. The doctrine arises because of recognition that as a matter of policy it is not a proper function of law enforcement officers, either themselves or by the use of decoys or undercover agents, to induce persons who otherwise would be law-abiding into the commission of crime. On the other hand, where it is known or suspected that a person is engaged in criminal activities, or is desiring to do so, it is not an entrapment to provide an opportunity for such person to carry out his criminal intentions.⁵

It is sometimes said that when it is shown that the accused actually committed the offense (as here), the claim of entrapment is an affirmative defense which must be proved by the evidence ⁶ somewhat analogous to the plea of confession and avoidance.⁷ But it is also to be kept in mind that the burden of proving the defendant’s guilt beyond a reasonable doubt is always upon the state: both initially and ultimately. Therefore, the only requirement on the defense of entrapment is that it be sufficient to raise a reasonable doubt that the defendant freely and voluntarily committed the crime.

Accordingly, when the problem of entrapment is present, the inquiry focuses upon two propositions: (1) Does it appear beyond a reasonable doubt that the crime was the product of the defendant’s voluntary will and desire to commit it; or (2), Was the crime induced or motivated by the actions of the prosecution. If the evidence relating to the second proposition raises a reasonable doubt as to the first, then there can be no conviction of the crime.

The defendant expresses no direct controversion of the principles of law here-inabove stated. The gravamen of his attack upon the judgment is: “The trial court erred in not ruling as a matter of law that entrapment occurred . . . ” His argument is based upon an assumption of facts as he contends them to be: that he was induced to supply Ms. Stout with drugs as a “favor” to her for reciprocal “favors” of sexual intimacy. The fact of significance here is that the testimony of Ms. Stout was to the contrary: that she had not extended to defendant any of' the “favors” he claims; that from the beginning of their acquaintance he had told her that the way for a woman to make money was in prostitution and in drugs and had expressed a willingness to sell drugs. Under his version he appears to have been willing to accommodate her in both lines.

The procedure of waiving a jury and having a trial to the court was undoubtedly because the defense was aware that under the evidence to be adduced there was no realistic way to deny the commission of the offense charged; and that the only defense available was that of entrapment. That is, to make it appear from the evidence that there was a reasonable doubt that the defendant would have committed the crime except for the inducements of the undercover agent.’

In his discussions giving consideration to this case the trial court clearly and correctly stated his understanding of the law in accordance with the principles we have discussed herein, including his view that under this conflicting evidence the problem of entrapment was a question of fact, which depended upon the credibility of the witnesses. In that regard, we make these brief comments: despite defendant’s concession that “during March and April of 1974 he was continuously procuring drugs for Ms. Stout . . .,” he urges that it is not shown that he was habitually selling drugs. Concerning his contention that he was providing the drugs merely to do “favors” for Ms. Stout: this might test the credulity of even the most trusting, when it is realized that in each transaction the drugs were sold for money; and that the price he exacted for the drugs in the transaction of which he was convicted was $100.

It is our opinion that the defendant has had what the law entitles him to, a fair trial with a presentation of the evidence in accordance with his request that this be done to the court instead of a jury. It appears that the trial judge gave full, careful and proper consideration to all aspects of this case in coming to his expressed conclusion; that he believed beyond a reasonable doubt that the defendant was guilty of the crime.

Affirmed. No costs awarded.

HENRIOD, C. J., and ELLETT, J„ concur.

1 . See. 58-37-8, U.C.A.1953.

2 . See State v. Anderson, 27 Utah 2d 276, 495 P.2d 804; 62 A.L.R.2d 610.

3 . State v. Belwood, 27 Utah 2d 214, 494 P.2d 519.

4 . Legitimacy of such use, see Sorrells v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.

5 . We regard this to be in harmony with the previous expressions of this court. See State v. Perkins, 19 Utah 2d 421, 432 P.2d 50, and State v. Pacheco, 13 Utah 2d 148, 369 P.2d 494, and with our statutory definition 76-2-303, Subsection (1), U.C.A.1953 (Enacted in Ch. 196, S.L.U.1973), quoted in the dissent.

6 . See 25 Am.Jur.2d 212 and cases therein cited.

7 . See State v. Good, 110 Ohio App. 415, 165 N.E.2d 28.