State v. Bridwell

566 P.2d 1232, 1977 Utah LEXIS 1191

Opinions

ELLETT, Chief Justice:

The State appeals from a pretrial dismissal of the case against Shane Bridwell, wherein he was charged with the offense of “unlawful distribution for value of a controlled substance” (marijuana). The court held that the respondent was entrapped and in doing so stated:

Now, the question is: Suppose — suppose we take all of the testimony in dispute and view it in the light most favorable to this case going on trial this afternoon; that is, assume that the defendant was selling to somebody immediately previous to this sale. Assume that Charles England and Mike George both witnessed that, and assume that immediately following that sale, then, the defendant was involved in the sale to Mike George and/or Charles England. Assuming all of those things, we still have to take into consideration that the defendant is not charged with that offense, he is not charged with that sale; he is charged with this sale.

And suppose that that sale was totally voluntary on his part, the other sale; suppose that was part of a long history of dealing that he was involved in.

The question is not whether that justifies an entrapment situation here, if such be the case, but whether this situation came about by one who was willing under the circumstances to get involved in this situation, or whether, in fact, it was induced, or that there was a substantial risk that it was induced, by a friendship relationship between Charles England and the defendant. [Emphasis added.]

Now let us consider the evidence which when looked at “in the light most favorable to the ease going on trial” would justify the trial court in ruling as it did. The trial judge further stated:

This is not an easy type of case. It is not easy for the law enforcement people who are out there trying to take care of the types of things that the people, the citizens of this community, are demanding that they take care of, and doing it the best way they can, putting together a case the best they can. And in this narcotics area, that is not easy. It’s not easy.

I think it’s very clear that, you know, it’s not like a person who is dealing in narcotics goes out and solicits his wares, solicits purchases in the community like other merchants do; I mean, these are covert operations. And so the police and the sheriff use covert methods in order to attempt to bring these things to a halt. [Emphasis added.]

The officer who was “out there trying to take care of the types of things that the people, the citizens of this community, are demanding that they take care of, and doing it the best way they can” did the best way he knew. He testified that he first went to Shane Bridwell’s home on November 21, 1975, and there he asked if Bridwell could arrange to get a “lid” (jargan meaning a can of marijuana). Bridwell told the officer to come back in three days and he should have some pounds by then.

Three days later the officer and Mr. England, the contact man, returned. Both of them testified that they were told to sit on the couch and shortly afterwards, Mr. Brid-well sold a pound of marijuana to a man named Brown who paid cash for it. In a few moments Mr. Bridwell brought a second pound of marijuana from out of the kitchen and gave it to the officer who paid him $130. Mr. England had gone into the kitchen with Mr. Bridwell and testified that the closet from which the marijuana was taken contained five or six other pound-bags of marijuana.

The reason for attempting to buy marijuana from Mr. Bridwell was because the sheriff’s office had received a lot of calls that Bridwell was dealing heavily in the Kearns area (where he lived) and that surveillance of his residence showed a lot of traffic in and out of the home.

Mr. England was in some sort of trouble with the law and agreed to help the officers for some consideration on their part. He had known Mr. Bridwell since they were in junior high school, and it was thought that he could be the contact man to introduce the officer to Mr. Bridwell.

Mr. Bridwell and his wife testified that England asked for the marijuana and Brid-well got it as an accommodation, selling it for the exact cost. If their testimony has to be believed, then one could find that the particular sale was induced by the conduct of England and the officer. It is difficult for us to believe that a jury would, on hearing the testimony, come to the same conclusion as did the trial judge about the matter.

The law applicable to this case is set out in State v. Curtis1 and need not be repeated here.

One dealing heavily in drugs as was Mr. Bridwell would naturally be expected to be careful and reluctant to sell to anyone who did not come properly recommended to him. That disarming recommendation was given by Mr. England and the respondent was caught — not entrapped. The best that can be said for Mr. Bridwell is that there is a jury question involved in the matter.

The ruling of the trial court is reversed and the case remanded with directions to proceed with the trial thereof.

CROCKETT, J„ concurs. HALL, J., concurs in result.

Footnotes

1

. Utah, 542 P.2d 744 (1975).