State v. Richardson , 201 Utah Adv. Rep. 40 ( 1992 )

OPINION

GREENWOOD, Judge:

Defendant Daniel Richardson appeals from a conviction following a guilty plea of attempted unlawful distribution of a controlled substance, a third degree felony, in violation of Utah Code Annotated section 58-37-8(l)(a)(ii) (Supp.1991). Defendant entered his plea conditioned upon his right to appeal the trial court’s denial of his motion to dismiss. See State v. Sery, 758 P.2d 935, 938-39 (Utah App.1988). Defendant based his motion to dismiss on an entrapment defense. We affirm.

BACKGROUND

“Because an entrapment defense is highly factual in nature, we review the facts in detail.” State v. Wright, 744 P.2d 315, 316 (Utah App.1987). In February 1991, Lane Hall contacted Leo Lucey, his parole supervisor. Lucey was an adult probation and parole (AP & P) officer in Davis County. While on parole, Hall, who had a history of heroin addiction, had been charged with two third degree felonies, possession of a controlled substance with intent to distribute and possessing a controlled substance without affixing the appropriate stamp. He had contacted Lucey to ascertain whether AP & P would assist him in avoiding parole revocation in exchange for information about other narcotics activities.

Lucey arranged a meeting between Hall and the Davis County drug strike force. Because Davis County detectives determined that Hall’s information could prove valuable, they entered into an agreement with him. The agreement provided that Hall would disclose names of drug traffickers in exchange for a diversion agreement with the Davis County Attorney’s office, whereby the pending charges against Hall would either be reduced or dismissed. As part of the agreement, a Board of Pardons warrant was held in abeyance, and AP & P placed Hall in a residential drug and alcohol treatment program. Hall agreed to “set up” three individuals, all of whom resided in Salt Lake County. Defendant was not one of the three persons initially targeted.

On March 16 or 17, 1991, Hall was introduced to defendant by Linda S., a friend of defendant's wife. Hall went to defendant’s home, and at Linda’s suggestion, defendant and his wife left to obtain heroin for the four of them to share. When defendant and his wife returned, all four consumed the heroin.

Subsequently, on March 19, 1991, Hall telephoned defendant and asked him if he could buy more heroin. When defendant agreed to the sale, Hall proceeded to defendant’s house. After Hall arrived, defendant left the residence in Hall’s car, and returned a short time later with heroin. Hall left defendant’s house and gave the heroin to detectives who were waiting nearby. The detectives had searched Hall and his car both prior to and after the purchase. This same procedure was used to purchase heroin on March 20 and March 21, 1991.

At defendant’s entrapment defense hearing, Hall admitted that absent the benefits he received from the agreement with the Davis County Attorney’s office, he would not have involved persons other than the three initially targeted during the agreement negotiations. Hall also testified that he received the benefits promised to him under the agreement. After hearing the testimony, however, the trial court ruled that the government’s actions in using Hall as an informant did not constitute misconduct. The court found the relationship between Hall and defendant did not rise to the level of entrapment and denied the motion to dismiss.

ANALYSIS

The sole issue on appeal is whether the manner in which the government used Hall as an informant entitles defendant to a dismissal based on entrapment. Worded differently, does the propriety of governmental conduct with third parties constitute a factor in defendant’s own entrapment defense? While a trial court’s findings of fact on a claim of entrapment will be reversed on appeal only if clearly erroneous, see State v. Casias, 567 P.2d 1097, 1099 (Utah 1977),¹ in this case, we consider the trial court’s application of a Utah Supreme Court decision construing the entrapment statute. Statutory interpretation by a trial court presents a question of law, which we review for correctness. Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990). Similarly, we consider the trial court’s interpretation of binding case law as presenting a question of law and review the trial court’s interpretation of that law for correctness.

Utah’s entrapment defense is codified in Utah Code Annotated section 76-2-303(1) (1990) and provides as follows:

Entrapment occurs when a law enforcement officer or a person directed by or acting in cooperation with the officer induces the commission of an offense in order to obtain evidence of the commission for prosecution by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Defendant concedes that the interaction between Hall and himself does not constitute entrapment. He also does not contest any conduct on the part of the government as it directly relates to him. Defendant’s entrapment theory instead focuses on the government’s conduct as it relates to Hall. Defendant argues that the government violated its rules for using parolees as informants, and thereby created a situation in which Hall was likely to instigate and encourage the commission of a crime. Specifically, defendant argues that: (1) AP & P violated agency rules when it allowed Hall to engage in heroin use while acting as an informant; (2) the government acted improperly when it used Hall to actively seek out drug distributors rather than merely to provide information upon which undercover agents could act; and (3) AP & P created a situation inducing defendant to engage in drug distribution, instead of interrupting targeted drug dealer activity as they did with the other three persons under investigation.

In support of his argument, defendant cites State v. Taylor, 599 P.2d 496 (Utah 1979), in which the supreme court interpreted the entrapment defense statute. Taylor held that when the legislature enacted section 76-2-303(1), it adopted an objective standard of entrapment under which “the focus is not on the propensities and predisposition of the specific defendant, but on whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” Id. at 500;² but see, Jacobson v. United States, — U.S. -, -, 112 S.Ct. 1535, 1537, 118 L.Ed.2d 174 (1992) (government failed to establish that defendant was predisposed to commit the crime utilizing a subjective theory of entrapment).

Under the objective standard, the pivotal questions are (1) “does the conduct of the government comport with a fair and honorable administration of justice,” Taylor, 599 P.2d at 500, and (2) did the governmental conduct create a substantial risk that an average person would be induced to commit the crime defendant committed? Id. at 503. Examples of what might constitute improper police conduct are “[ejxtreme pleas of desperate illness or appeals based primarily on sympathy, pity, or close personal friendship, or offers of inordinate sums of money.” Id. Taylor suggests certain factors to consider when evaluating the conduct between the government representative and a defendant. “[T]he transactions leading up to the offense, the interaction between the agent and the defendant, and the response to the inducements of the agent, are all to be considered in judging what the effect of the governmental agent’s conduct would be on a normal person.” Id.

Notwithstanding Taylor, however, defendant asks this court to focus on the governmental conduct in the transactions leading up to the use of Hall as an informant.³ Defendant argues that the government’s conduct in this case was so outrageous that defendant’s conviction, resulting from that conduct, should not be allowed to stand.⁴ Defendant does not, however, provide any case law which supports his theory under the facts of this case. To the contrary, under Utah law, “the propriety of [governmental action] is measured by its probable effect upon a hypothetical person in the ‘setting in which the inducement took place.’ ” State v. Wright, 744 P.2d 315, 318 (Utah App.1987) (quoting Taylor, 599 P.2d at 503). Under Utah law, therefore, the statutory entrapment defense is available only if there is impropriety by the government in its contacts with defendant, to the extent that an ordinary person in defendant’s situation would be induced to commit a crime.⁵ The relationship evaluated in an entrapment defense claim must directly involve the government and the party claiming to be entrapped. The government’s conduct in this case did not taint Hall’s contact with defendant. Hall knew defendant was involved in illegal drug activity prior to the set up operation with law enforcement because defendant had willingly provided heroin for both Hall’s and defendant’s use.⁶ And, as admitted by defendant, Hall did not employ inducements which would have caused an ordinary person to engage in criminal activity.

Based upon the foregoing, the government’s use of Hall as an agent in defendant’s apprehension did not constitute entrapment under Utah Code Annotated section 76-2-303(1).

CONCLUSION

The trial court correctly held that the governmental conduct in this case did not constitute entrapment. We therefore affirm the trial court’s denial of defendant’s motion to dismiss.

Billings, J., concurs.

1 . In Casias, the court specified a clearly erroneous standard of review where conflicting evidence is presented, necessitating an assessment of witness credibility. Casias did not address, as our concurring colleague implies, the standard of review appropriate when applying the applicable law to the facts or determining the ultimate fact of whether entrapment occurred.

2 . Taylor did not specify the appropriate standard of review under an objective analysis, but did describe the evidence in detail and state that "[f]rom the testimony adduced by the State, the evidence establishes as a matter of law that Annette Stubbs induced the commission of the offense by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit.” Id. at 504. Although Taylor was an appeal after a jury verdict where erroneous instructions were given, it leaves open the question of the standard of review for an ultimate finding of entrapment under the objective test.

3 . Defendant also cites case law from Florida, another jurisdiction which adheres to an objective view of entrapment. These cases provide an alternative protection for criminal defendants where governmental conduct is at issue. In State v. Glosson, 462 So.2d 1082, 1085 (Fla. 1985), the Florida Supreme Court held that a defendant's due process right under the Florida Constitution required dismissal of defendant’s criminal charges where the State had paid the informant a contingent fee. See abo, State v. Hunter, 586 So.2d 319, 321 (Fla.1991) (reaffirming the due process analysis and setting out a threshold test for entrapment under the objective view); Cruz v. State, 465 So.2d 516, 521 (Fla.1985) ("subjective and objective entrapment doctrines can coexist”), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985). Defendant offers these cases as additional authority for his argument regarding governmental conduct under the objective view. A due process argument, however, was not presented to either this court or the trial court.

4 .The trial court stated that it was "not persuaded that there [was] such a perversion of justice by government misconduct here ... that utilizing an individual who has contacts with suppliers of illicit drugs necessarily would involve individuals such as Mr. Hall who have those prior contacts and experience, that is, parolees or probationers, and that certainly doesn’t offend my sensibilities.” The court further noted that although Hall’s drug use apparently continued, he did agree to enter a drug treatment program and that agreements of this type were vital for undercover police operations. The trial court’s characterization of the governmental conduct as reasonable is persuasive to this court.

5 . The concurring opinion states that defendant does not challenge the trial court’s interpretation of supreme court opinions, but only challenges the "ultimate factual finding” that entrapment did not occur. We disagree. The underlying facts forming the basis of defendant's appeal are largely undisputed. Defendant seeks on appeal an expansion of Taylor’s interpretation of the entrapment statute to encompass undisputed facts involving the relationship between Hall and the government. We hold that the expansion sought is inconsistent with both Taylor and the statute and, therefore, impermissible. This exercise in no way undermines the authority of the trial court or interferes with its rightful prerogatives. Moreover, under the concurring opinion’s view, the facts of this case could result in a ruling by a different trial court that the statutory entrapment defense had been successfully met — that the government's conduct with third parties can provide a defense under the entrapment statute. By the concurring opinion’s use of an abuse of discretion standard, that ruling would be virtually unassailable on review by an appellate court.

Our colleague, however, has seized upon the opportunity to again particularize differences of opinion among members of this court regarding applicable standards of review. While we do not agree that this case is an appropriate vehicle, we reiterate that the dispute ”[s]hould be definitively determined by the Utah Supreme Court in order to put to rest the conflicts between panels of this court and alleviate the confusing state of the law on these continually recurring issues.” State v. Carter, 812 P.2d 460, 468-69 n. 8 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); see also State v. Sykes, 840 P.2d 825 (Utah App.1992) (Greenwood opting for bifurcated test of reasonable suspicion; Jackson concurring opinion rejecting same; Bench dissenting).

6 . Although defendant expresses outrage at the arrangement with Hall in this case, there ’is nothing before us to suggest that the way in which AP & P and the Davis County drug strike force investigated drug dealing was outside the bounds of acceptable drug investigation protocol.