State v. Soule

791 P.2d 1048, 164 Ariz. 165, 49 Ariz. Adv. Rep. 38, 1989 Ariz. App. LEXIS 341
Court of Appeals of Arizona·Decided December 7, 1989·No. No. 1 CA-CR 88-644·Published·Cited by 3 cases

Opinion

OPINION

KLEINSCHMIDT, Presiding Judge.

David Michael Soule appeals his conviction for three counts of sale of a narcotic drug. A knowledge of the facts is necessary to an understanding of the issues he raises.

In August of 1986, an undercover Phoenix police detective was informed that the defendant was selling heroin. He telephoned the defendant and, a few minutes later, went to the defendant’s home. He told the defendant that he used heroin but was not “strung out” on it, and he asked if he could buy some methadone. The defendant sold him a small bottle of methadone for $60 and told the detective he would have another bottle available in a few days.

Five days later the detective returned' to the defendant’s home and asked to buy more methadone. The defendant sold him another bottle of methadone and offered to sell him two revolvers. This offer was declined.

Two days later, on August 14, the detective purchased two more bottles of methadone from the defendant. The defendant told the detective that he would sell one bottle for $65 or two for $110. Still later, on August 22, the detective went to a methadone clinic in Phoenix hoping to find the defendant, who had previously told the detective that he was getting the methadone from the clinic. The detective saw the defendant at the clinic and bought another bottle of methadone from him. On this occasion, according to the detective, the defendant told him he had another bottle to sell and asked the detective to see if he could find anyone who wanted to buy it.

At trial, the detective testified that he had been told the defendant was selling heroin. On cross-examination, he testified [167]*167that an informer had introduced him to the defendant and that he, the detective, had initiated each contact.

The defendant did not testify but called a number of witnesses who related that the defendant had been trying to break his heroin and alcohol habits and was not using heroin in August of 1987. Another witness for the defense testified that persons enrolled in a methadone program could receive the drug at a clinic and take it home for self-administration.

The trial court instructed on the defense of entrapment. The jury acquitted the defendant on the first sale of methadone and found him guilty of the three subsequent sales.

The defendant says the trial court erred in:

1. failing to grant a mistrial when the detective testified that he had been told the defendant was selling heroin;
2. failing to grant a mistrial when the detective testified the defendant offered to sell him firearms;
3. compelling him to admit the elements of the crimes as a prerequisite to raising the entrapment defense; and
4. failing to grant a new trial because the prosecutor had a conflict of interest. We consider each in turn.

TESTIMONY ABOUT OTHER HEROIN SALES

The defendant first claims prejudicial error based on the following direct examination of the detective:

Q [BY THE PROSECUTOR] Why did you go there [to the defendant’s house]?
A I went there to purchase some methadone from David Soule.
Q And did you go there to purchase heroin?
A I was told that he was selling heroin, but I didn’t—
[DEFENSE COUNSEL]: Your Honor, I object.
THE COURT: Sustained. The jury will disregard the statement made about what somebody else may or may not have said. That’s not testimony you may consider.

The defendant, at the end of the state’s case, moved for a mistrial stating that the detective’s improper testimony regarding the heroin was prejudicial. The court agreed but stated it was not “so prejudicial” as to warrant a mistrial. The defendant argues that this testimony, although stricken, was especially damaging given the fact that his defense was entrapment. The “heroin” testimony, he says, impermis-sibly suggested that the defendant was predisposed to commit the crime and was not entrapped into selling drugs.

We would be far more sympathetic to the defendant’s argument were we of the opinion that he was entitled to an entrapment instruction in the first place. We believe that he was not. Normally, whether a defendant has been entrapped is a question for the jury to decide, unless there is no evidence to support the defense or there is uncontradicted testimony which clearly indicates that an otherwise innocent person has been induced to commit the crime. State v. Boccelli, 105 Ariz. 495, 467 P.2d 740 (1970); State v. Gessler, 142 Ariz. 379, 382, 690 P.2d 98, 101 (App.1984), citing State v. Petralia, 110 Ariz. 530, 521 P.2d 617 (1974); State v. Mack, 134 Ariz. 89, 654 P.2d 23 (App.1982). Entrapment requires that the criminal conduct be the result of creative activity, i.e., originative activity, by law enforcement officers or that the state do more than merely provide an opportunity for a predisposed person to commit the crime. State v. Stanley, 123 Ariz. 95, 103, 597 P.2d 998, 1006 (App.1979). The fact that the police made the first contact, without placing the suspected seller under uncommon temptation or inducement, does not constitute entrapment. United States v. Christopher, 488 F.2d 849 (9th Cir.1973); State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d 383, 386 (1970); State v. Reyes, 99 Ariz. 257, 262, 408 P.2d 400, 403 (1965).

We are unpersuaded by defense counsel’s argument to the jury that the defendant’s sympathy for the detective’s supposed suffering somehow justified a [168]*168finding that the defendant was entrapped. That argument is unsupported by the evidence, but even if it were supported, such, without more, would not constitute a defense. Many purchasers of illegal drugs are addicts. Sympathy for that condition simply ought not and does not constitute a defense to a charge of selling illegal drugs. In one leading entrapment case in which an appeal to the drug seller’s sympathy was given weight, the police agent had repeatedly importuned a highly resistant defendant to purchase drugs for him. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). All that the facts show here is that the defendant was given the opportunity, on four separate occasions, to sell the drugs. There was no evidence of uncommon persuasion, temptation, or inducement, and there is no evidence that the defendant displayed the least bit of reluctance to sell the drugs. Where there is no evidence to support a defense of entrapment, an instruction on that defense is properly refused. Reyes, 99 Ariz.

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State v. Soule, 791 P.2d 1048, 164 Ariz. 165, 49 Ariz. Adv. Rep. 38, 1989 Ariz. App. LEXIS 341 (Ark. Ct. App. 1989).

791 P.2d 1048 (State v. Soule) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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