State of Arizona v. Maverick Kemp Gray

372 P.3d 999, 239 Ariz. 475, 2016 Ariz. LEXIS 161
CourtArizona Supreme Court
DecidedJune 20, 2016
DocketCR-15-0293-PR
StatusPublished
Cited by11 cases

This text of 372 P.3d 999 (State of Arizona v. Maverick Kemp Gray) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Arizona v. Maverick Kemp Gray, 372 P.3d 999, 239 Ariz. 475, 2016 Ariz. LEXIS 161 (Ark. 2016).

Opinions

CHIEF JUSTICE BALES,

opinion of the Court:

¶ 1 Consistent with Arizona’s common law, we hold that AR.S. § 13-206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when it includes incriminating statements made by the defendant to an undercover officer.

I.

¶2 In June 2013, an undercover police officer approached Maverick Gray at a bus [477]*477stop and asked if Gray could help him get some “hard,” a slang term for crack cocaine. Gray agreed to obtain twenty dollars’ worth of cocaine for a ten-dollar fee. The officer drove with Gray to an apartment complex and gave him twenty dollars; Gray left the car and returned ten minutes later with the cocaine; the officer then gave him ten dollars for the fee. Gray was arrested and charged with sale of narcotics.

¶ 3 The officer secretly recorded his conversation with Gray, who made statements such as “I’m a good person” and “I don’t usually do this.” As part of its trial evidence, the State presented the audio recording over Gray’s objection that it was unreliable. Based on his recorded statements, Gray also asked the trial court to instruct the jury on the entrapment defense recognized in A.R.S. § 13-206. As a prerequisite for this defense, the statute requires a defendant to “admit by [his] testimony or other evidence the substantial elements of the offense charged.” Concluding that Gray had not admitted these elements, the trial court refused the requested instruction. The jury found Gray guilty and the trial court sentenced him to 9.25 years in prison. The court of appeals affirmed, ruling that Gray was not entitled to an entrapment instruction because he had not admitted the substantial elements of the crime. State v. Gray, 238 Ariz. 147, 150 ¶ 12, 357 P.3d 831, 834 (App.2015).

¶ 4 We granted review because the application of the statutory entrapment defense presents a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶5 We here consider whether § 13-206 requires a defendant who requests a jury instruction on the entrapment defense to affirmatively admit the substantial elements of the offense and, if so, what qualifies as “other evidence” for such an admission. We review these issues de novo. See State v. King, 225 Ariz. 87, 89 ¶ 5, 235 P.3d 240, 242 (2010) (reviewing issues of statutory interpretation de novo); State v. Miller, 234 Ariz. 31, 43 ¶ 41, 316 P.3d 1219, 1231 (2013) (noting that trial court’s refusal to give a jury instruction is reviewed for abuse of discretion, but legal adequacy of instructions is reviewed de novo).

¶ 6 When a statute’s language is clear, “it controls unless an absurdity or constitutional violation results. But if the text is ambiguous, we also consider the statute’s context; its subject matter, and historical background; its effects and consequences; and its spirit and purpose,” Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc. 235 Ariz. 141, 144-45 ¶ 13, 329 P.3d 1043, 1046-47 (2014) (citations and internal quotations omitted).

¶ 7 By its terms, § 13-206 requires a defendant “to admit ... the substantial elements of the offense charged.” The statute does not expressly address whether a defendant can “admit” the elements merely by not challenging the state’s evidence. Gray argues that we should construe the statute as not requiring a defendant to affirmatively admit the elements. He notes that silence can, in some contexts, be deemed an admission, and he contends that we should deem his not offering evidence to contradict his recorded statements to be an “admission” for purposes of § 13-206. We find these arguments unconvincing in light of the background to the statute’s enactment.

¶ 8 Before 1997, Arizona’s entrapment defense was a creation of the common law. This Court addressed the defense in State v. McKinney, 108 Ariz. 436, 439, 501 P.2d 378, 381 (1972), holding that “[a] defendant who wishes to avail himself of a defense of entrapment must admit the substantial elements of the crime and one who denies knowledge of the crime may not raise the defense of entrapment.” McKinney further described the requirements for a valid entrapment claim: “there has to exist activity by the State in the nature of inducement to commit a crime which the accused would not have otherwise committed, although providing the mere opportunity to commit the offense is not sufficient.” Id. (citing State v. Duplain, 102 Ariz. 100, 101, 425 P.2d 570, 571 (1967)).

¶ 9 In 1983, we reaffirmed that a defendant, in order to invoke the entrapment de[478]*478fense, must admit the elements of the offense. State v. Nilsen, 134 Ariz. 431, 432, 657 P.2d 419, 420 (1983). Nilsen also clarified that although a defendant “need not take the stand in order to assert the defense of entrapment,” a defendant cannot “passively admit” the elements. As alternatives to the defendant’s testifying, Nilsen noted that a defendant may stipulate to the admission or have it read into evidence. Id.

¶ 10 Five years after Nilsen, the United States Supreme Court took a different approach to the entrapment defense as a matter of federal law—holding that a defendant is not required to admit the offense’s elements in order to raise the defense. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Thus, in federal court, defendants may contend both that they did not commit a charged offense and, alternatively, that their commission of the crime should be excused because they were entrapped. Id. States, however, are not required to follow Matheivs because the defense is not of “constitutional dimension.” Id. at 65, 108 S.Ct. 883, quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

¶ 11 Our Court rejected the Mathews approach in State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071, 1073 (1991). In reaffirming Nilsen by a 3-2 vote, this Court noted that “allowing] a defendant to testify as to two defenses that cannot both be true is equivalent to sanctioning a defendant’s perjury,” and “allowing inconsistent defenses may confuse the jury.” Id. at 136, 811 P.2d at 1073. Two justices vigorously disagreed, arguing in favor of the Mathews rule. Id. at 137-39, 811 P.2d at 1074-76 (Feldman, V.C.J., joined by Gordon, C.J.). The Court, however, reiterated that entrapment “is a relatively limited defense available only to defendants who have committed all the elements of a proscribed offense,” and that the defense is not available to defendants who do not testify or “otherwise present to the jury some evidence of [their] admission to the elements of the crime.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
372 P.3d 999, 239 Ariz. 475, 2016 Ariz. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-arizona-v-maverick-kemp-gray-ariz-2016.