6/21/16 Arizona’s Entrapment statute, 13 A.R.S. § 206(A), provides that to claim entrapment, the defendant must admit by the defendant’s testimony or other evidence the substantial elements of the offense charged. If a defendant is able to meet this burden then they are entitled to an Entrapment Jury instructions.
In State v. Gray, CR20132758-001 (6/20/16) the Arizona Supreme Court upheld the legality of this requirement and affirmed a conviction for the defendant, whom the court held had not met this burden, and therefore was properly denied the Entrapment Jury Instruction.
In the case an undercover police officer approached the defendant at a bus stop and asked if the defendant could help him get some “hard,” a slang term for crack cocaine. The defendant agreed to obtain twenty dollars’ worth of cocaine for a ten-dollar fee. The officer drove with the defendant to an apartment complex and gave him twenty dollars; the defendant left the car and returned ten minutes later with the cocaine; the officer then gave him ten dollars for the fee. The defendant was arrested and charged with sale of narcotics. The officer secretly recorded his conversation with the defendant, who made statements such as “I’m a good person” and “I don’t usually do this.” As part of its trial evidence the State presented the audio recording over the defendant’s objection that it was unreliable.
At trial the defendant asked the trial court to instruct the jury on the entrapment defense by asserting the recording showed that he had affirmatively admitted the substantial elements of the offense. The trial court denied the defendant’s request by saying the defendant had not admitted the offense. The jury found Gray guilty and the trial court sentenced him to 9.25 years in prison.
On appeal the Arizona Supreme Court held that the Entrapment defense as set forth in 13 A.R.S. § 206 does require the defendant to affirmatively admit the substantial elements of the offense, and the defendant’s recorded statements did not constitute the required evidence of an affirmative admission of the substantial elements of the offense. The court said that Arizona’s Entrapment statute is based on prior Arizona common law which has always required a defendant to affirmatively admit the substantial elements of the offense.
The court when on to say that,” ’other evidence’ is not limited to a post-charge admission, but instead only requires evidence of a defendant’s affirmative admission of the elements. For example, a defendant who is given Miranda warnings and makes a statement to the police could rely on his admissions to satisfy § 13-206(A), as long as the defendant does not contest the validity of the confession or raise inconsistent defenses.” The court said it is not enough that the defendant does not contest the State’s evidence; rather he must affirmatively admit the elements of the offense. The court said that because the defendant’s recorded statements did not constitute an affirmative admission of all of the elements of the offense, the trial court properly refused to give the jury the Entrapment Instruction.
Justice Bolick dissented from the majority’s decision. In doing so he pointed out that Arizona was one of a very select minority of jurisdictions which required the defendant to affirmatively admit the elements of the offense. He pointed out that for Federal law cases both the Ninth Circuit Court of Appeals and the Supreme Court have not required it. Justice Bolick said he had concerns that it was a violation of a defendant’s Fifth Amendment Right Against Self-Incrimination to require the defendant to affirmatively admit the substantial elements of the offense. However, Justice Bolick limited his dissent to saying the defendant had met his burden under the statute. He said that “other evidence” could include the defendant’s recorded statements, which he said could be considered as affirmatively admitting to the elements of the crime of sale of drugs. For that reason he said the conviction should be reversed.
The opinion may be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150293PR.pdf
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