Opinion
Court of Appeals No. A-11014 Trial Court No. 1JU-10-1161 CRNo. 6039
04-02-2014
JOHN C. WHITE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan Bair, Assistant Public Advocate, and Richard Allen, Public Advocate (opening brief), and Doug Miller, The Law Office of Douglas S. Miller (reply brief), Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Dan Bair, Assistant Public Advocate, and Richard Allen, Public Advocate (opening brief), and Doug Miller, The Law Office of Douglas S. Miller (reply brief), Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Matthews, Senior Supreme Court Justice.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
MATTHEWS, Senior Justice.
John C. White was convicted after a jury trial of three counts of misconduct involving a controlled substance in the third degree in violation of AS 11.71.030(a)(1) (sale of cocaine) and one count of misconduct involving a controlled substance in the second degree in violation of AS 11.71.020(a)(1) (sale of oxycodone). He received a 20-year sentence for the sale of oxycodone and concurrent 10-year sentences for the cocaine sales. In addition, White's probation in two other cases was revoked because of these convictions, and he was ordered to serve an additional 6 years consecutive to the 20-year sentence.
White presents two issues on appeal. First, he claims that the trial court erred in failing to find entrapment because the undercover agents who bought drugs from him held out the prospect of employing him in a well-paying job. Second, he claims the court erred by rejecting a proposed mitigating factor that the offense concerning oxycodone involved a small quantity. For the reasons explained below, we reject these claims and affirm White's convictions.
Facts and proceedings concerning entrapment
White filed a pretrial motion to dismiss the indictment based on the affirmative defense of entrapment. The court held an evidentiary hearing. One of the witnesses at that hearing was a confidential informant.
The informant testified that when he came to Juneau, he frequented bars, "partied" with locals, and began making inquiries about buying drugs. Some people identified White as a drug seller and introduced the informant to him. The informant claimed to be on a construction crew from out of town, and he said that his boss, the foreman of the crew, would be coming to town and would like to purchase cocaine. The informant also told White there would be a job opportunity with the construction crew. But the informant made preliminary arrangements to buy drugs from White before discussing this prospective employment with him.
On May 26, 2010, White filled out an employment application, and the informant arranged what would be a police-monitored drug purchase for May 27. The informant told White, and White's girlfriend Priscilla Barr, that he would have money to make a purchase on that day, that his boss also wanted to make a purchase, and that they would be present in a local bar. The boss was actually Sitka Police Detective Kyle Ferguson, who was also working undercover.
When the time for the purchase came, White was reluctant to enter the bar and instead signaled the informant to come outside. The informant, White, and Barr walked down the street, where White sold 3 grams of cocaine to the informant. The sale took place about twenty feet from two police officers parked in an unmarked vehicle. This sale was the subject of the first count of the charges against White.
After the first purchase, the police obtained a warrant to record future drug purchases from White. A second, recorded purchase occurred on June 8, 2010, at White's and Barr's apartment. When the informant and Ferguson appeared at the apartment, Barr initially told Ferguson to wait outside. Ferguson, with Barr listening, told the informant to ask about "oxies." The informant asked Barr what the price would be, and Barr answered "170." The informant then introduced Ferguson to Barr as his boss, and Barr let both the informant and Ferguson into the apartment.
While in the apartment, the informant and Ferguson purchased an 80-milligram oxycodone pill and four grams of cocaine from Barr and White. Ferguson observed that White had six or eight small packets of cocaine on his bed and a large roll of cash. White took the cocaine from a bag, and Barr took the oxycodone pill from a bag containing fifteen or twenty pills. The June 8 sale of cocaine by White formed the basis for the second count of the charges.
The third and final purchase occurred on June 9, 2010. Ferguson went alone to White's and Barr's apartment. Ferguson and White initially discussed White's job application and then Ferguson asked to buy drugs. White left to go to another apartment in the same complex to obtain the drugs. During White's absence, Barr asked Ferguson what White's wage would be if he were hired. Ferguson told her he would be getting $10.50 an hour. When White returned with a bag containing drugs, Ferguson purchased an 80-milligram oxycodone pill and two grams of cocaine. He again observed a roll of cash on White's bed. The June 9 sales of cocaine and oxycodone formed the basis for the third and fourth counts of the charges against White.
When the decision to arrest White was made, the police decided it would be best to make the arrest out in the open, away from the apartment. To accomplish this, Ferguson called White and told him the job was going to start soon and that Ferguson needed to meet with him to issue him some safety equipment. At that point White asked what the wage would be, Ferguson said $10.50 an hour, and White said in essence that the job would not be worth his while. Ferguson then said perhaps he could get $16 or $18 per hour, but White said that still would not be enough. Subsequently, Ferguson talked with his supervisor about what to do and later told White that he could offer him $27 an hour on a provisional basis. This satisfied White and he agreed to meet with Ferguson. On his way to the arranged meeting, White was arrested. After White's arrest, the police searched the apartment and found, among other things, two digital scales and a pill cutter.
Ferguson estimated that this call was made "at least" one month after the June 9 transaction.
At the conclusion of the evidentiary hearing, defense counsel argued that the undercover agents offered employment to White at least implicitly in exchange for the opportunity to buy drugs: "[Y]ou know, you hook me up, I'll hook you up kind of thing." Counsel argued this was reprehensible conduct that constituted entrapment regardless of White's inclination to sell drugs. In response, the State's attorney focused on the evidence of White's willingness to make illegal sales of drugs without any inducement other than the purchase price.
The trial court ruled the defense of entrapment had not been established. The court noted that a judicially mandated two-part test governed entrapment claims:
One, whether the police engaged in activities which were calculated to seduce or coerce people who are not otherwise motivated to commit crimes, and second, whether the police conduct falls below an acceptable standard for the fair and honorable administration of justice.
The court also observed that, in evaluating the nature of the police conduct, the actual facts and circumstances of the transaction should be considered. Turning to the facts, the court found that White indicated a willingness to sell drugs to the informant before there was any discussion of the job and that the prospect of a job was not an inducement for the drug sales.
The court also suggested that the offer of a job paying $10.50 per hour "was not the kind of inordinate amount of money that the [Alaska] Supreme Court used as an example of something that would be entrapment." The court concluded:
The evidence here is that it was not the discussion of a labor job that induced Mr. White and Ms. Barr to engage in these transactions, it was the money that was offered for the drugs. And I don't think a showing has been made that this is entrapment. ... [W]hile I think that it's not a good practice because of the danger that under the particular facts of a
particular case, that it could represent the kind of inducement that would cause someone to engage in a drug transaction, I think the particular facts of this case and the particular inducement that was offered here is not the kind of inducement that would induce an average person who did not habitually engage in this kind of conduct. In other words, somebody who wasn't a drug dealer to go out and find drugs and sell them to this person. The average person would not, even the average low-income person struggling to make a go, would not start dealing drugs to get a $10.50-an-hour labor job, so I don't think that showing's been made.
Legal standard for entrapment
Alaska Statute 11.81.450, the statute establishing the defense of entrapment, states:
In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.
This statute was enacted in 1978 as part of a comprehensive revision of Alaska's criminal laws. The statutory language has its roots in a case decided by the Alaska Supreme Court, Grossman v. State, 457 P.2d 226 (Alaska 1969).
The commentary to the 1978 revisions of the criminal code concerning proposed AS 11.81.450 states:
The Code incorporates existing law by recognizing the "objective" approach to entrapment. See Grossman v. State, 457 P.2d 226 (Alaska 1969). In classifying entrapment as an affirmative defense, which must be established by the defendant by a preponderance of the evidence, the Code provision is consistent with existing Alaska practice. Batson v. State, [568 P.2d 973 (Alaska 1977),] No. 1486 (Alaska, September 9, 1977).Commentary to the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 138, 1978 Senate Journal 1399.
When Grossman was decided, the prevailing rule was exemplified by the United States Supreme Court's decision in Sorrells v. United States. Under Sorrells, when the facts underlying an entrapment claim were disputed, the claim was to be decided by the jury and the focus was on whether the defendant had a predisposition to commit the criminal offense:
287 U.S. 435 (1932).
[T]he determination in each case should focus on whether the particular defendant was predisposed to commit the crime or was an otherwise innocent person who would not have erred except for the persuasion of the government's agents. This permits a searching inquiry into the conduct and motivations of both the officers and the defendant, including the past conduct of the defendant in committing similar crimes, and the general activities and character of the defendant.Because the Sorrells test focused on the motivations and character traits of the defendant, it became known as a "subjective" test.
Grossman, 457 P.2d at 227 (discussing Sorrells, 287 U.S. 435).
Id. at 228.
In Grossman, the supreme court recognized weaknesses in the approach of Sorrells. By focusing on the defendant's criminal history and predisposition to commit crimes, the Sorrells test tended to prejudice the jury against the defendant because of his past offenses and character. The test also could countenance unfair and unconscionable police conduct. In light of these shortcomings, the Grossman court adopted a test that looked instead at "the particular conduct of the police in the case presented." The court also held that the defense of entrapment was to be determined by the court, not the jury.
Id. at 228-29.
Id. at 229.
Id. at 230.
The Grossman court expressed this new test in terms the legislature closely followed when it enacted AS 11.81.450:
The objective test can be stated as follows: unlawful entrapment occurs when a public law enforcement official, or a person working in cooperation with him, in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who is ready and willing, to commit such an offense. Conversely, instigations which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit do not constitute entrapment.
Id. at 229.
Although the Grossman court characterized this as an "objective" test, to distinguish it from the "subjective" test articulated in Sorrells, the test nevertheless retained a subjective component. The defendant was no longer required to show he lacked a subjective predisposition to commit the crime, but he still had to establish that the dishonorable police conduct complained of actually induced him to commit the charged offenses.
Id. at 228-29.
Washington v. State, 755 P.2d 401, 405 (Alaska App. 1988); Anchorage v. Flanagan, 649 P.2d 957, 961-62 (Alaska App. 1982).
Subsequently, in Pascu v. State, 577 P.2d 1064 (Alaska 1978), the Alaska Supreme Court held that the "average person" formulation set out in Grossman was too narrow. In Pascu, a police agent bought drugs from the defendant despite the defendant's initial resistance to making the sale because the buyer was a good friend who made persistent pleas of need. In reversing the trial court's conclusion that there was no entrapment, the supreme court stated:
Since announcing our decision in Grossman we have come to realize that there are certain difficulties in applying the foregoing standard. An "average person" probably cannot be induced to commit a serious crime except under circumstances so extreme as to amount to duress. Yet it is clear that entrapment may occur where the degree of inducement falls short of actual duress. What is prohibited, by Grossman, is unreasonable or unconscionable efforts on the part of the police to induce one to commit a crime so that he may be arrested and prosecuted for the offense. In determining whether entrapment has occurred, the trial court must focus "upon the particular conduct of the police in the case presented." ... The question is really whether that
conduct falls below an acceptable standard for the fair and honorable administration of justice.
Pascu, 577 P.2d at 1066-67 (quoting Grossman, 457 P.2d at 226) (emphasis added). The Pascu court did not mention the then-pending, but not yet enacted, legislation which employed the "average person" standard.
Under Pascu's formulation of the entrapment test, police conduct is considered "unreasonable or unconscionable" if the inducements "go beyond those measures which, objectively considered, are likely to provoke to the commission of crime only those persons, and not others, who are ready and willing to commit a criminal offense."
Coffey v. State, 585 P.2d 514, 521 n.26 (Alaska 1978).
We acknowledge there is a potential conflict between the Pascu formulation of the entrapment defense and AS 11.81.450, which, as already explained, appears to have codified the narrower Grossman test. But this potential conflict has no significance here because this case does not turn on the nature of the police conduct, but rather on the absence of any causal link between that conduct and White's crimes.
We have stated in dicta that the Pascu test rather than the statutory "average person" formulation should control, but we have not done so consistently. Compare Washington, 755 P.2d at 405 n.5 (no need to establish "that an average person would have been induced to commit an offense under like circumstances"), with Bachlet v. State, 941 P.2d 200, 207 (Alaska App. 1997) (using the terms "average people" and "average person" in discussing the test for entrapment).
The wording of AS 11.81.450 was formulated by the Criminal Code Revision Subcommission, which noted in its commentary to the proposed statute that it was intended to codify the test adopted by the supreme court in Grossman. See Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 138, 1978 Senate Journal 1399 (quoted above in footnote 2). The Alaska House of Representatives passed the entire revised criminal code (including the entrapment statute) on April 14, 1978. See 1978 House Journal 866. The bill was then passed by the Senate, and final passage of the legislation occurred — without any amendments related to entrapment — on June 14th. See 1978 Senate Journal 1463-64; 1978 House Journal 1715-16. The supreme court issued its decision in Pascu on May 5, after the House had voted on the legislation but before the Senate had voted.
This Court has repeatedly and consistently held that when a defendant claims entrapment, the defendant must show that the questioned police conduct actually caused the defendant to engage in the illegal conduct. We discussed this rule in Anchorage v. Flanagan, 649 P.2d 957, 962 (Alaska App. 1982), where we explained that Pascu had not altered the requirement that the defendant prove a causal link between the police conduct and commission of the crime. Thus, under both Pascu and Grossman, the entrapment doctrine applies only to "those cases in which commission of an offense was apparently the direct result of inducement by law enforcement officials."
Flanagan, 649 P.2d at 961 & n.4 ("[W]e do not think that Pascu can correctly be read to have abandoned the need for police conduct involving inducement, persuasion, or instigation as an essential component of the entrapment defense."); see also Washington, 755 P.2d at 405 (under Pascu, the defendant must show that "the dishonorable police practices were a substantial factor in inducing him to commit the charged offenses").
Since then, we have reiterated this causality requirement in Washington v. State, 755 P.2d 401, 405 (Alaska App. 1988), and State v. Yi, 85 P.3d 469, 472 (Alaska App. 2004).
As we explained above, the superior court found as a factual matter that this causality requirement was not met in White's case — that White was willing to sell drugs to the informant before there was any discussion of a potential job and that the later prospect of a job did not induce White to engage in the drug sales.
On appeal, White argues that the trial court's finding was clearly erroneous. He contends that, despite the absence of a formal quid pro quo, he could have reasonably believed he had to sell drugs to get a job because drug sales were being discussed at the same time as the job.
But White's argument hinges on viewing the facts in the light most favorable to his claim of entrapment, while we are obliged to view the facts in the light most favorable to the trial court's ruling. Viewing the evidence in this light, we readily conclude the trial court's finding — that there was no causal relationship between the job offer and the drug sales — is not clearly erroneous.
Rubey v. City of Fairbanks, 456 P.2d 470, 476 (Alaska 1969); Goresen v. State, 432 P.2d 326, 327 (Alaska 1967).
There is no evidence that White refused or attempted to resist the police agents' efforts to buy drugs. The informant testified that, within moments of his first introduction to White, White offered to sell him cocaine and gave the informant a code of what to say over the telephone when he was ready to make a purchase. The informant also testified that White subsequently called him a couple of times in the middle of the night, trying to make a sale. Further, there was ample evidence that White was in the business of selling illegal drugs and that the profit from these sales, rather than the opportunity for legitimate employment, was White's inducement for making the sales in question.
White argues that the State should not have been allowed to introduce evidence that White was previously engaged in selling drugs (before the events at issue in this case). We conclude, however, that this evidence was relevant and that the trial court could properly consider it when ruling on White's claim of entrapment. Evidence as to White's prior conduct and his preexisting willingness to sell drugs was relevant to the question of whether White was actually induced by the questioned police behavior to make the sales at issue in this case, and whether White was ready and willing to commit these offenses without special persuasion.
For these reasons we uphold the superior court's ruling that White failed to establish the defense of entrapment.
Whether the court erred by rejecting the proposed mitigating factor is moot
At the sentencing hearing the court found six aggravating factors argued by the State. The court also found one mitigator advocated by White, finding that the sale of two grams of cocaine on June 9 was a small quantity under AS 12.55.155(d)(13). But the court rejected White's argument that the sale of the 80-milligram oxycodone pill fell within the small quantity classification. The court found that White had failed to show by clear and convincing evidence that this quantity was "uncharacteristically small when compared to the broad middle ground covered by a typical drug case." The court also stated that even if the court had found that the small-quantity mitigator applied, the court would have given it no weight in passing sentence because White was a regular dealer of drugs with an "appalling prior record."
Assaultive behavior, AS 12.55.155(c)(8); three or more prior felonies, AS 12.55.155(c)(15); juvenile conduct that would have been a felony, AS 12.55.155(c)(19); defendant on felony probation, AS 12.55.155(c)(20); repeated violations for conduct similar to current case, AS 12.55.155(c)(21); five or more Class A misdemeanors, AS 12.55.155(c)(31).
AS 12.55.155(d) provides:
The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence below the presumptive range set out in AS 12.55.125:
. . . .
(13) the defendant is convicted of an offense specified in AS 11.71 and the offense involved small quantities of a controlled substance[.]
On appeal, White argues that the fact that the sale of oxycodone was only one pill priced at $170 shows it was a small quantity. The State contends White's argument is moot in light of the court's statement that even accepting the proposed mitigating factor, it would have imposed the same sentence. We agree that the issue is moot in light of the trial court's determination that crediting the existence of the mitigator would not have affected the court's sentence.
The effect of an aggravating factor is to permit the court to impose a sentence above the applicable presumptive sentencing range, and the effect of a mitigator is to permit the court to impose a sentence below the applicable presumptive range. But neither aggravating nor mitigating factors require a sentencing court to deviate from the presumptive range. Rather, when aggravating or mitigating factors are proved, the sentencing judge must analyze the case using established sentencing criteria to determine "[w]hether, or how much, a presumptive [range] should be adjusted on account of aggravating and mitigating factors." Here the trial court did not deviate from the presumptive sentencing ranges and gave cogent reasons why the rejected mitigator would not have altered the sentence.
Hunt v. State, 18 P.3d 69, 70 (Alaska App. 2001).
White was a third felony offender. For the class A felony of misconduct involving a controlled substance in the second degree, White faced a sentencing range of 15-20 years. AS 12.55.125(c)(4). The presumptive range for misconduct involving a controlled substance in the third degree — the cocaine sales — was 6-10 years on each count. AS 12.55.125(d)(4).
Given the court's explicit declaration that the presence of the additional mitigating factor advocated by White would have made no difference to the sentence, and because of the discretionary authority of the court as to the effect of mitigating factors, any mistake that the court may have made concerning whether the oxycodone sale involved a small quantity within the meaning of AS 12.55.155(d)(13) is moot.
Conclusion
For the above reasons, the judgment in this case is AFFIRMED.