Opinion
No. 75-110
Decided November 4, 1976. Rehearing denied December 16, 1976. Certiorari granted March 28, 1977.
Convicted by a jury of a "hard sale" of narcotics and of conspiracy, defendant appealed.
Affirmed
1. CRIMINAL LAW — Narcotics — "Hard Sale" — Police Initiated Transaction — Defendant — Solicited Sale — Induced Purchase — Conviction Not Precluded. Where, in prosecution for the sale of narcotics, there is substantial evidence that the defendant solicited the sale and enticed the purchaser to buy, the mere fact that the police initiated the transaction does not preclude a conviction under the "hard sale" statute.
2. Arrest — Information — Unsigned for Two Months — No Affidavit — Probable Cause Determination — After Arrest — Verified By Police Officer — No Error. Although information upon which arrest warrant was based was not signed by deputy district attorney until nearly two months after its filing, and no affidavit was attached to the information, nevertheless probable cause to arrest may be determined after the arrest and the information was verified by a police officer; therefore, no error occurred in regard to the arrest procedure followed, and motion to dismiss based thereon was properly denied.
Appeal from the District Court of the City and County of Denver, Honorable Robert P. Fullerton, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, J. Stephen Phillips, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Carol L. Gerstl, Deputy State Public Defender, for defendant-appellant.
Defendant Craig Mundt was convicted by a jury of selling, with intent to aid or induce another to unlawfully use or possess a narcotic drug, in violation of C.R.S. 1963, 48-5-20, now § 12-22-322, C.R.S. 1973, and conspiracy to commit the crime of sale of narcotic drugs. He appeals his convictions and we affirm.
Viewing the People's evidence in the light most favorable to the verdict, we find it established the following: Brown, an undercover narcotics agent, masquerading as an organized crime figure, entered the Collage, a shop owned by Mundt. The Collage sold paraphernalia such as pipes, spoons, and roach clips frequently employed by narcotic users. The agent expressed an interest in investing in the shop as well as buying cocaine. Mundt stated that he could supply "good" cocaine.
Subsequently, several meetings took place between Mundt, together with his employee Wilson, and Brown and other agents. Mundt pictured himself as the head of a large drug organization, with contacts in Peru and Mexico, capable of supplying 100 kilos (220 pounds) of cocaine for $1,200 per kilo. At Brown's request, there was an actual sale of a one ounce sample of cocaine. Brown paid Wilson $100 for the sample. Wilson later divided that sum with Mundt. The transaction took place in Mundt's apartment and shortly after the sale Mundt entered the room and apologized to Brown for the poor quality of the sample. Mundt promised to supply better quality in the future, stating that, "The cocaine would be of such high quality that it would float like snow," and that it would be so pure he could "do [sniff] it from a foot away."
Mundt's first contention of error is that the evidence was insufficient to prove that he sold narcotic drugs with the specific intent to induce or aid another to use, or to induce or aid another to use or possess the drugs, or that he conspired to sell narcotic drugs with such intent.
Both Mundt and the People rely predominantly on People v. Bowers, 187 Colo. 233, 530 P.2d 1282 (1975) as dispositive of this issue. There, the Supreme Court set out four criteria which are relevant in determining if the requisite specific intent is present under the facts of a case to bring it within § 12-22-322, C.R.S. 1973, the "hard sale" statute. They are whether the defendant (1) initiated the transaction; (2) solicited the sale; (3) enticed the purchasers to buy; or (4) sold the narcotics with the intent to induce another to use narcotic drugs.
[1] Mundt contends that where the police initiate the transaction there can be no showing of specific intent under the hard sale statute. We do not read Bowers so narrowly. Where there is substantial evidence, as here, that a defendant solicited the sale and enticed the purchaser to buy, the mere fact that the police initiated the transaction does not preclude a conviction under the hard sale statute. Compare People v. Parent, 190 Colo. 76, 543 P.2d 1241 (1975), with People v. Morris, 190 Colo. 215, 545 P.2d 151 (1976), and People v. Patterson, 187 Colo. 431, 532 P.2d 342 (1975).
In the instant case Mundt had drug paraphernalia for sale. He stated that he could supply a good quality of cocaine and that he had good sources in South America. In addition, he sold a sample; he promised better quality; he gave instructions on the best way to use cocaine; he mentioned having tons of marijuana available; proclaimed himself the boss of a large organization with employees; and mentioned a potential $100,000 transaction.
These facts constitute a sufficient evidentiary base for the jury's determination that Mundt was a "pusher," which as noted in Bowers, is the type of individual at whom the hard sale statute is aimed.
[2] Mundt also asserts as error certain defects in the arrest procedures. Pursuant to § 16-5-205, C.R.S. 1973, the district attorney filed an information directly in the district court whereupon the district court judge issued a warrant for Mundt's arrest. The information was not signed by a deputy district attorney until nearly two months after its filing, and no affidavit was attached to the information. However, the information was verified by a police officer. Mundt contends that the absence of a probable cause hearing or affidavit establishing the underlying facts and circumstances of the case prior to his arrest, coupled with the fact that the information was not signed until two months after filing, were sufficient to require dismissal of the information. We disagree.
People v. Swazo, 191 Colo. 425, 553 P.2d 782 (1976), is dispositive of this issue. In Swazo the court held that where insufficient information was presented to the court at the time of the filing of the information, probable cause could be determined after the arrest. Here, as in Swazo, the verification of the information by a police officer was sufficient. Thus, Mundt's motion to dismiss for failure to find probable cause prior to the filing of the information was properly denied.
Judgment affirmed.
JUDGE BERMAN and JUDGE KELLY concur.