State v. Shirley

2007 NMCA 137, 170 P.3d 1003, 142 N.M. 765
CourtNew Mexico Court of Appeals
DecidedAugust 23, 2007
Docket26,147
StatusPublished
Cited by18 cases

This text of 2007 NMCA 137 (State v. Shirley) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shirley, 2007 NMCA 137, 170 P.3d 1003, 142 N.M. 765 (N.M. Ct. App. 2007).

Opinion

OPINION

PICKARD, Judge.

{1} Defendant was convicted of distribution of a controlled substance, contrary to NMSA 1978, § 30-31-22(A)(2)(a) (2006). On appeal, Defendant contends that the district court erred as a matter of law in denying her motion to dismiss on the ground that she was entrapped. Defendant also argues that the district court erred by allowing a police officer to testify after being in the courtroom during the pendency of the trial. We hold that the district court correctly denied Defendant’s motion for a directed verdict because there were disputed facts that should be resolved by the jury. We reject Defendant’s second issue on appeal. We therefore affirm Defendant’s conviction.

BACKGROUND

{2} Defendant was arrested after selling methamphetamine to an undercover police officer. Before trial, Defendant filed a motion to dismiss, arguing that the methamphetamine was given to her by the confidential informant who helped organize the sale between Defendant and the undercover officer. According to Defendant, the sale amounted to a “circular transaction” and she was effectively entrapped. As such, Defendant argued that the charges against her should be dismissed.

{3} The district court held a hearing on Defendant’s motion. At the hearing, Defendant testified that she met a man named John through a mutual friend. When Defendant first met John, she noticed that one of John’s dogs was sitting in his car. Because it was a hot day and because the dog looked ill, Defendant expressed concern for the dog. John told Defendant that the dog was staying in his car because it had fought with another dog and John was trying to keep the dogs separated. He told Defendant that he was trying to find someone to care for the dog. Defendant offered to take care of the dog. John told Defendant that in exchange for caring for his dog, he would provide her with marijuana and/or methamphetamine. Eventually, according to Defendant, the dog became unmanageable and her relationship with John soured, but he continued to check on the dog and provide Defendant with drugs.

{4} Defendant testified that on June 21, 2004, John called her on the telephone and told her that he had “some green or some white”-meaning marijuana or methamphetamine-and asked if it was okay if he came over with a friend. According to Defendant, she told John, “[I]f the price [was] right, come on over.” Defendant testified that when John and his friend arrived, they made small talk for some time and then she was asked by John or his friend if she had “the stuff.” Defendant testified that she was shocked when they asked her this because she expected them to be bringing the drugs. She told John and his friend that she did not have anything.

{5} According to Defendant, John and his friend kept asking her about purchasing methamphetamine. Defendant testified that she had some crushed-up pills tucked away in an antique bottle bag, but was not sure if it was actually methamphetamine. She finally decided to give John and his friend the crushed-up pills so they would stop bothering her. She testified that she had originally obtained the crushed-up pills from John.

{6} Defendant stated that when John originally gave her the crushed-up pills, she had other people look at the pills to figure out what they were. She testified that she believed that the pills were pseudoephedrine pills “or something” and that no one would touch them, and that was why she still had the pills in the house.

{7} Defendant eventually decided to sell the drugs to John and his friend for fifty dollars. She testified that she went into the back bedroom of the house and separated the drugs into two bags. According to Defendant, she then sold one bag to John and his friend, but the friend ended up taking both bags and giving one bag to John after they left the house.

{8} Defendant testified that she then tried to get John and his friend to smoke the drugs so that she could find out what the drugs were, since she was afraid the pills might contain cyanide or something. She testified that she did not offer to smoke the drugs with them.

{9} On cross-examination, Defendant denied that she had used methamphetamine in the past, claiming that when she was previously convicted for possession of methamphetamine, she only had vitamins, St. John’s Wort, and green alfalfa in her possession. She also testified during both her direct and cross-examination that she believed that John was providing her drugs to entice her to become hooked and start buying drugs from him.

{10} At the same hearing, Defendant called Officer Kenneth Johnson to the stand. Officer Johnson testified that John was a confidential informant and that he and John went to Defendant’s house on June 21, 2004, to purchase drugs. Officer Johnson testified that John had previously signed up as a confidential informant and that he was paid by the Department to introduce officers to individuals dealing drugs.

{11} Officer Johnson testified that when he and John asked Defendant for drugs on June 21, 2004, she acted surprised by the question. According to Officer Johnson, Defendant told him that she did not usually sell drugs and that she needed to be careful because she just finished parole. Officer Johnson did not consider Defendant’s apparent surprise at being asked for drugs or any of her other statements unusual, as a number of individuals have acted surprised and/or have told him that they do not sell drugs and later sell drugs to him multiple times. Defendant then told Officer Johnson that she had some drugs for personal use in the back. She then went into the back room and brought out two small bags of methamphetamine. Officer Johnson testified that it did not take Defendant much time to get the drugs-just enough time for her to get down the hallway and back-and he barely lost sight of her.

{12} Officer Johnson testified that the bags contained methamphetamine, not crushed pills. He said that he gave Defendant fifty dollars, and in exchange she gave him one of the bags. Defendant then asked Officer Johnson to smoke some of the drugs with her. When he refused, Defendant asked him to snort some with her. Officer Johnson stated that he declined. Defendant then put some of the methamphetamine in a piece of foil and asked John for a lighter. Officer Johnson testified that he left the house with the bag of drugs that he had purchased.

{13} According to Officer Johnson, when he left the house, he sat on the back of the truck he had arrived in and waited for John to come out. A few minutes later, John emerged from the house. Officer Johnson testified that after exiting the house, John gave him the second bag of methamphetamine. When Officer Johnson asked John what it was, John told him that he had thought that Officer Johnson left the house without taking the drugs, so he grabbed the bag when he left. Contrary to Defendant’s testimony, Officer Johnson testified that he did not give John any drugs and instead put the two bags of methamphetamine into evidence. Officer Johnson further testified that, based on his experience, confidential informants do not give away drugs for free.

{14} After Officer Johnson’s testimony, Defendant argued that the State had failed to rebut her assertion that John had provided her with the drugs.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 137, 170 P.3d 1003, 142 N.M. 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shirley-nmctapp-2007.