Leech v. State

2001 OK 104

Representative MORGAN, Minority Fred

Floor Leader of the Oklahoma House of

Representatives, al., Petitioners, et DAXON,

Tom Finance, Director of State Butkin,

and Robert Treasurer, State

Respondents. 96,613.

No.

Supreme Court of Oklahoma.

Dec.

ORDER

We hold that the Joint Motion of All Par- Stay

ties to Writ of Prohibition's Effective- February 15, 2002,

ness thru is HEREBY

GRANTED.

Today's order constitutes the pro- Court's

nouncement that foreshadows unwilling- its

ness to act as an accommodating agent

future approprations invalid controversies

postponing the effective date of nullifying

opinion.

All Justices concur.

2003 OK CR 4 LEECH, Jr.,

Jerald C. Appellant, Oklahoma, Appellee. STATE

No. F-2001-754.

Court of Appeals Criminal of Oklahoma.

Feb.

As Corrected March OK, Holdstock, City, Oklahoma

Charles at trial. Attorney Defendant for Attor- Slabotsky, District Bryan Assistant OK, Attorney the State Enid, ney, trial. Bruehl, Appellate Defense Coun-

Mary S. on OK, Attorney Appellant sel, Norman, appeal. Edmondson, Attorney General Drew

W.A. Elmore, Assistant Oklahoma, M. Brant Attorney General, legal OK, justification. City, Oklahoma Attor- Torres v. 1998 OK neys Appellee appeal. 40, ¶38, CR 962 P.2d denied, U.S. 119 S.Ct. 142 L.Ed.2d 683 (1999). OPINION

LILE, Presiding Vice Judge: %4 Leech further claims that the trial judge should given a lesser includ Leech, Jr., Jerald C. was convicted at ed offense instruction covering possession of jury trial of Trafficking in a Controlled Dan- methamphetamine. The record is silent gerous Substance (Methamphetamine)in vio- to any objections to the court's instructions lation of 63 Supp.1999, O.S. § 2-415 in Case as to defense requested instructions. No. CF-2000-304 in the District Court of Appellant has a duty provide a sufficient County. Garfield The Honorable Ronald G. record for State, review. Hill v. Franklin, 1995 OK Judge, District sentenced Leech to 28, ¶10, CR 155, 898 P.2d We must (20) Twenty years imprisonment and a Fine assume that the lack of a lesser included $100,000 of in accordance with jury ver- instruction is raised for the first dict. Appellant perfected time on appeal his appeal. Under these circumstances, we re this Court. view plain for only. error Simpson State, T2 The uncontradicted evidence estab- 1994 40, OK ¶23, CR 690, 876 P.2d 698-99. lished that Leech and the informant, State's We find none. An underlying requirement of Peterman, had an ongoing relationship. State, Shrum v. 41, ¶10, OK CR Leech supply Peterman with cash to P.2d is that a lesser offense in purchase supplies for manufacturing meth- struction should not given be unless the evi amphetamine and drugs receive payment. dence would support a conviction for the Leech would also sell for methamphetamine lesser offense. The uncontradicted evidence 14, Peterman. 2000, On June gave Peterman in this case is Appellant knowinglypos Leech approximately an ounce of metham- sessed a trafficking quantity quan and not a phetamine, repayment half as for the most tity personal use. requested Even if recent cash advance and half for sale on trial, the lesser offense instruction would consignment. An immediate arrest was properly have been State, refused. Hill v. made and drugs were recovered from 251, ¶11, OK CR 764 P.2d car, Leech's An additional small amount of 15 The more issue, interesting that was methamphetamine recovered from not raised at trial but which is presented on pocket. Leech's appeal, is also an issue of impression first T8 Leech first claims that the evi above, Court. As we plain review for dence was insufficient to the traffick error only. Simpson, 876 P.2d at 698-99. ing conviction because there was proof no Leech claims that he was entrapped into that he knowingly possessed twenty or more possessing a trafficking quantity of metham- grams of methamphetamine. The well estab phetamine and asserts that he only could lished standard for analyzing insufficiencyof convicted possession of of methamphetamine, evidence claims is set forth Spuehler a lesser offense. 1985 OK CR 709 P.2d 202. We T6 It undisputed, is in this sting reverse review the light evidence most favor operation, law enforcement de- able to the State and ask whether a rational termined the quantity of methamphetamine trier of fact could have found the essential to be offered to Leech. elements of the beyond erime a reasonable doubt. The State's evidence was that Peter- T7 Sentencing is said man and Leech discussed the amount and to occur when the State causes a defendant purpose of the methamphetamine delivered initially predisposed to commit a lesser crime to Leech immediately prior to taking to commit a more serious offense. This dif possession. This evidence accepted fers from traditional entrapment situations jury and is sufficient under Spuchler. where an otherwise person innocent is We will not disturb a verdiet without caused to commit a erime. Traditional en- induced, lured instigated, iswho "[Olne un an when may occur situations trapment pur- person, law or of by officer commit into trapped person

wary innocent of commission into prosecution, States, of pose v. United Sherman See ting a crime. no intention otherwise had he crime 78 S.Ct. U.S. defense himself may committing avail en concept of sentence L.Ed.2d entrapment". where situations those applies trapment activi "acting in criminal an officer admittedly predisposed said further one We committing detecting crime" into view ty enticed faith with good inno If artifice. trickery or character. general deception, the same use of make committing an entrapped Id. person cent illegal any amount possession illegal apply principals same Those principals traditional drugs, A claims instruction entrapment traditional our and small possess to intended who defendant apply. would 8-25 2d at OUJI-CR found en be drug could illegal an of amounts an a traffick that possessing it clear makes into by officers trapped instruction That to previ- sufficient quantity "no had a who even one or quantity is person ing entrapped In law;" that the to distribute. intent charge to violate of purpose a or intent ous to as such be entitled would a crime event, defendant "willing to commit the that not was to entrapment previous sentencing "no had that on charged" instruction an that the de of any offense whether to determine to commit the purpose allow or intent or lesser greater the charged." of guilty here character fendant the charge. in the apply not would language T9 This of Leech's facts {13 to the turn sentencing thenWe asserted of case never Leech principals. "violate these apply to intended to may have case The defendant in a traditional whether entrapment, intended may have claimed defendant The law." the entrap- if of charged" in the nature that as "such sense commit to in crime. no evidence drug related There is ment. means language that err to commit not did intended court The trial record. defendant the The have if the ab- charged" here on the character instruct failing to "offense Further, the requested, if request. crime. drug related aof sence means language that refused properly been would instruction {10 sufficient case In a evidence. supported being not as issue the raise to presented is evidence {14 his sentence claims Leech be must language this sentence exces (20) imprisonment years twenty the jury that to the it clear make modified years old fifty-eight sive. defendant, al - not is whether issue access denied sentencing and will be offense, time a lesser intending to commit though sting a reverse In credits. time good most committing great entrapped has been this, unusual not it is such operation previous no had the defendant If er offense. blame more who are informants encounter not or did erime greater to commit intent find, under We the defendant. worthy than great willing commit ready and become case, the sentence of this the facts transaction, all of the course during the er crime (10) impris years ten modified the less be to commit should predisposed though even ¶5, State, CR 2001 OK Rea v. onment. enforcement finding that law crime, then er remanded case is The P.3d committed in accor re-sentencing trial court found require would opinion. this with dance crime, guilty of guilty of offense. the lesser DECISION State, CR 1973 OK {11 In Robinson court the trial {15 judgment The overruled ¶ P.2d is MODI- sentence OK AFFIRMED grounds McInturff (10) imprisonment. years ten FIED said: this Court P.2d CR case is REMANDED to the court for trial informant, dential Peterman) with an ounce re-sentencing in accordance with opinion. this of methamphetamine, ensuring he would be charged with trafficking, unfairly entrapped UMPKIN, J.,

L concurs. him into the more serious charge and longer sentence associated with that crime. A JOHNSON, P.J., specially concurs. charge for trafficking dependent solely on LANNING, J., concurs in results. the amount of drug possessed and has significant sentencing implications, including CHAPEL, J., dissents. mandatory punishment and loss of Depart JOHNSON, specially P.J.: concurs. ment of Corrections credits while serving the prison sentence.2 T1 I wish specially concur in the fine opinion written Judge Lile. It is indeed T3 Although I agree with the majority's unfortunate that law enforcement would en- adoption of the doctrine of sentencing en tice someone to crime either unwit- trapment, I agree cannot with the majority tingly or even if they they know are commit- opinion's analysis of the "entrapment" ting issue. yet crime but crime is The majority initially correctly states that they have committed otherwise. sentencing entrapment Because of opinion, obviously, differs from Okla- tra ditional defense of entrapment. homa Jury Uniform However, Instruction committee will have propose opinion to the appears or two additional to conflate the two doc instructions. trines, viewing sentencing entrapment en tirely through prism of entrapment

T2 justice The system should look with a principles. opinion The suggests jaundiced eye upon sting operations. reverse traditional instruction This effectively justice is the system becom- does not apply here, ing should be involved in committing modified not stopping it. necessary where to reflect factual cireum-

stances underlying sentencing entrapment. CHAPEL, J., dissenting: Finally, the majority completely fails ap to ply even sketchy understanding of sen T1 In Proposition II Leech claims the tencing entrapment to the facts of this case. engaged State in "sentence entrapment" by very After briefly discussing setting up him with doctrine of an ounce of methamphet amine, sentencing entrapment, which would the majority automatically warrant even trafficking charge. As the majority notes, briefly more concludes "[tlhere is no evi sentencing entrapment dence of entrapment occurs when the in the record." 3 The State causes a defendant initially predisposed majority concludes that, without discussion to commit a lesser crime to commit a more had Leech requested an instruction on en serious offense. Sentencing entrapment trapment it would not have supported been often associated with reverse sting opera by the evidence. This is neither surprising, tions where mandatory sentences result from since Leech has no entrapment claim, nor particular quantity of drugs.1 relevant, since entrapment and sentencing T2 Leech police claims the department's entrapment are fundamentally different doc decision provide him (through the confi- trines. See, eg., Kaczmarski, United States v. 0.$.2001, 2. 63 2-415(B)(1), §§ (C)4, (D)(1) (first F.Supp. (E.D.Penn.1996), subject offender to not less than twice aff'd term of Kaczmarski, U.S. v. imprisonment (3rd provided 1997), Cir. non-trafficking denied, U.S., statutes, drug Sliwowski v. 522 U.S. and the imprisonment terms of not S.Ct. (1997). subject 139 L.Ed.2d 179 statutory provisions There is no suspension, credible claim probation, deferral entrapped or state in the correctional insti- sense; traditional tution earned it is not credits other than where achievement credits). police furnish a defendant opportunity See, commit eg., crime. Cooper v. OK CR 54, 810 P.2d 1303, 1305. Op. at 990. found but vania, adopted the doctrine have but jurisdiction {4 federal Every state it.8 before the facts apply to not it did the doe- they recognize one, or not whether have Circuits Ninth Eighth and The sentencing

trine, defines The sentencing ntrapment. adopted defendant, although predisposed claim that e rejected the sentenc offense, Circuit en Eleventh minor or lesser Cir The D.C. entrapment defense.10 ing committing a by the State trapped sentencing entrapment cuit discussed punishme greater subject offense to sell predisposed a defendant concluded a de here is whether question The nt.4 eager to commit cocaine powder or sell possess predisposed fendant by government entrapped for traf drugs required not crime was quantity of crack coc he sell insistence agents' commit a merely predisposed ficking, or recognized also Congress has aine.11 Eighth de- Circuit The drug offense. lesser inher misconduct potential majority of by the used the standard seribed Congress In 1998 sting operations. govern ent "The issue: analyzing this the courts Sentencing Guidelines the federal modified however, to be not have conduct, does ment's in re relief for some to allow Rather, facts should outrageous. enforce a law sting cases. Where verse pre defendant's focusing on the evaluated substantially drug for a agent sells ment conduct is government's disposition." buy signifi will a defendant price so provides lower the State extent that to the relevant otherwise, he have to commit cantly more for the inducement may depart downward sentencing court greater offense.6 in the recommended the sentence from and dis defined courts 15 Several guidelines.12 de before cussed most foree when has the claim it, ultimately T6 This con adopt reject clining opera- sting reverse with made in connection supported in factually cluding it Pennsylva Hawaii and and situations tions particular cases.7 specific amount District deal in a agents choose to nia, the United along with States charge a expressly in order Pennsyl drugs District the Eastern Court of sen- rejected the doctrine specifically quently (3rd 428, 438 39 F.3d Raven, v. States 4. United 15, supra has n. tencing manipulation, see Cir.1994); 1145, F.3d Jones, v. 18 States United sentencing entrap- Garcia, rejected adopted nor Cir.1994); (4th 79 neither States v. United 1153 713; Graves, Ealy ment); Cal.Rptr.2d at 564 Cir.1996); Okey, 113 74, (7th States v. United 75 F.3d at 170. N.W.2d Cir.1995); 238, (7th v. United States 240 47 F.3d Cir.2000); 1096, (8th Searcy, 1099 233 F.3d 1103, (9th 1106 Staufer, 1010; Petzold, v. 38 F.3d States at United Cir.1994); 701 A.2d Yip at P.2d 8. 987 Sancher, 138 F.3d Kaczmarski, States v. 1336-37; United F.Supp. at 1182. 939 Cir.1998), adopted (11th denied, 525 U.S. nor banned neither Circuit has 1410, 1414 Third (1998); States v. Sca L.Ed.2d 336 sentencing entrapment. See United 142 414, S.Ct 967, 119 (not (E.D.Pa.1999) pub vetti, 1323, 1329 70 F.3d Walls, v. WL 80368 States 1999 United (D.C.Cir.1995), 1147, 116 517 U.S. cert. denied lication). (1996); v. 565 People 134 L.Ed.2d 1445, S.Ct. 1171, Cal.Rptr.2d Graves, 113 Cal.App.4th 93 States v. 1099; at United F.3d 9. 233 Searcy, (2001); 987 98, 92 v. Hawai'i State Yip, 713 (8th Cir.1993); Staufer, 425 Barth, 990 F.2d (Haw.Ct.App.1999); v. Phil State 1010 P.2d at 1108. 38 F.3d (Iowa (unpub App.2000) lips, WL 328074 2000 Ealy, People 222 opinion); Mich.App. lished Sanchez, 138 F.3d at 1414. 10. (1997) Common N.W.2d (Pa.Su Petzold, 701 A.2d wealth (the Walls, also con- Court at 1329 70 F.3d 11. per.1997). outrageous govern- no basis for cluded there is downward sentence conduct ment modification, (internal quotation Searcy, at 1100 233 F.3d separate appears to be a but this omitted). "outrageous government con- of the discussion defense). duct" Searcy, at 1101. 233 F.3d (n. 2D1.1, § comment FSG U.S.CAUSSG 12. 18 1154; at Jones, 18 F.3d 438; Raven, 39 F.3d (Nov.1994). 12, 17) (the Circuit subse- Okey, Seventh at 240 offense.13 justice Our criminal system allots careful serutiny and a probing examination wide by prosecutors discretion to the district court." determine In United States v. appropriate charge any person ac Searcy Eighth Circuit continued this cused of committing a crime. This discretion theme: danger "The abuse is is bounded on the by one hand Legisla great because in many cases, including this ture's strict specificcrimes, one, definitionsof may and, influence particular some control, cases the quantity and kind of defendant's ac drug cases, tions. In drug Legislature involvedin the offense." has defined certain solely by offenses the weight T8 In United States v. Staufer, the Ninth drugs amount of possessed, and made Cireuit discussed the concerns raised when provisions mandatory on the government agents convince a defendant weight or amount alone. Where State deal in significantly larger quantities agents exert undue person influence on a drugs previous his history sup would commit a than the one he port, and concluded courts must ensure the normally commit, and where that ac State "has some reason to believe that defen tion determines the sentence, defendant's dants are predisposed to engage in drug prosecutor longer no any discretion. In deal of the magnitude for which they are stead, charging decision-makingis moved prosecuted." The Court stated it is unfair back to the drug agent, individual or even and arbitrary to agents let put unwarranted the confidential informant. Law .enforce pressure on a defendant to commit a crime ment person take a suspected of which would increase his sentence without past drug dealing and create a specific regard for his predisposition, capacity his crime.14 In this case approached Peterman commit the crime unaided, and the extent of Leech at police request, officer's suggested his culpability.19 "Drug agents decide, can drug deal, amount, named the provided apparently without supervision by any the drugs. The officers intended to supply body negotiate with somebody for an enough methamphetamine to convict Leech ounce, pound, kilo, kilos, a million of trafficking. kilos of a and, substance course, if the bait, T7 bites at the As Eighth then put Cireuit it in United amount chosen drug agent will States v. Stavig, determine his "[We continue to be deeply drug sentence.20 That exactly hap concerned what about the proclivity of reverse- here, pened sting operations, one, such as this to raise questions of sentencing entrapment. T9 The Tenth Cireuit is Sen only jurisdic tencing entrapment claims arise in this con tion which does not define "sentencing en text largely because 'sentencing discretion trapment" is as State entrapment of a defen delegated all way the down to the dant, individual predisposed to a crime, lesser drug agent operating in the field'" The committing greater a offense. In in on, Court went "Because of great the poten United States v. Mosley,21the Tenth Cireuit abuse, tial for these cases require the most considered the defense outrageous of govern e.g., 13. See, State v. 987 P.2d at 1010. Yip, (9th Cir.1994) (internal 1103, 1107 quo omitted). tation 14. agents acting Government with unlimited dis- - cretion as may, did here, they create crimes. 16. Id. finding While not sentencing entrapment because the defendant explicitly was willing to act as Searcy, 17. any courier heroin, for 233 F.3d at amount of 1099. the Third Cir- cuit was extremely troubled where an offense entirely was up by Government, set the awith Staufer, 38 F.3d at 1107. willing defendant who had no means otherwise carry to plan, out his and where the narcotics Id. place. (Raven, transaction never took 39 F.3d at 439). Staufer, 38 F.3d at 1107-08. 15. United Stavig, States v. 80 F.3d 1241, 1247 (8th Cir.1996), quoting United Staufer, States v. (10th 21. 965 F.2d Cir.1992). separate doctrines as entrapment sentencing well-rea thorough and In a conduct. ment government outrageous of defense the from the de adopted Mosley discussion soned reason gave no Court The conduct. necessary to - factors the fense, delineated the Court that fact decision, than oc conduct government outrageous prove gov outrageous a discussion already had gov instances very few curred, noted and The Mosley.27 available conduct ernment type of warrant conduct ernment the claims analysis authority, weight of "it concluded specifically The Court relief suggests sense themselves, common and in to government outrageous is not sentencing en between a difference there is a continue or repeat to defendant a duce outrageous and manipulation or trapment expand or him to induce to even or difference That 22 Mosley conduct. government activity." criminal previous extend jurisdictions. by the other articulated been either rule on consider, discuss not did arguments, considering all carefully After manip sentencing entrapment sentencing claims, I would and definitions, discussions ulation. as entrapment doctrine sentencing adopt considered Circuit Tenth In T 10 that sentenc defined, hold and traditionally resulting claim sentencing a conduct official when entrapment occurs ing States sting in United reverse a from commit defendant, predisposed leads juris every other join Rather Lacey.23 of greater committing a crime, into lesser of sen issue had discussed diction Fur punishment. subject fense sepa it as treat and entrapment, Cir tencing Tenth dispute the I do not ther, while Mosley. returned defense, Court rate conduct government that conclusion cuit's common rejected the the Court a footnote induce agents In simply because outrageous not focus sentencing making that activity consensus his expand a defendant stated predisposition, question a defendant's on es not buy, that bigger Cireuit, claim would that, analysis Tenth should in the The sentencing focus conduct outrageous encourag conduct agent's treated on the not focus Hav government.24 trans larger in a engage actions ing on ing a defendant sentencing predisposition. action, the defendant's ing determined of outra in agents a claim form did State merely another becomes: question was The applied conduct, predis defendant, the Court otherwise who government geous duce signifi could crime, conduct a lesser held Mosley, posed leading to induce offense cantly greater outrageous not be criminal his or extend expand punishment? Lacey buy.25 bigger making a activity consid jurisdictions {12 majority of In the manipulation determined also re the issue ering sentence outrageous merely another jurisdic most court because by the solved rejected Mosley, and, applying claim sentencing. conduct The jury have do tions arguments.26 Lacey's has held Court Supreme States United liberty interest defendants in Oklahoma alone stands Cireuit Tenth T11 The Su impose sentence.28 having a manipulation refusing to treat larger to the predisposition proof of note Mosley, at 911. 965 F.2d 22. analysis Circuit part Tenth not a crime denied, Cir.), U.S. 519 (10th a dis- such analysis 956 turn on ("even 23. 86 F.3d our were (1996). 244 well, L.Ed.2d 136 suggesting 117 S.Ct. tinction''), as cites Staufer factually inclined may be panel at least one n. 5. at 86 F.3d 24. Lacey, had no case This predisposition. to consider manipulation. or claim Lacey, at 965. F.3d 25. 86 (Table), Sims, 1998 F.3d 729 153 States United Cir.1998). 380970(10th Lacey, at 963. 26. WL opinion on out- unpublished a more recent In Oklahoma, 100 U.S. 447 Hicks conduct, panel of rageous (1980). L.Ed.2d 2229, 65 S.Ct. defendant's on a evidence discusses Tenth Circuit crime, Lacey cites predisposition to preme Court based this holding on Okla provided eight-balls (8 Leech grams) of 1/2 homa's creating statute the right to have a crank to sell for him four or five times. Jury fix punishment.29 Although right T14 All the evidence shows Leech was absolute,30 grant statute does to the predisposed at most to accept sell the and/or right defendant jury sentencing in the grams of methamphetamine Peterman first instance. I that, would hold after a owed fact, him. In the record shows trial court determines evidence pre has been usually dealt in much quantities smaller sented a claim of sentencing en grams, which itself trapment, grams is 6 defense shall short presented of the minimum quantity necessary trafficking. jury. A properly instructed may Had the State not up set whether, determine a "trafficking under the re facts of each verse," case, Leech would committed applies I possession methamphetamine promulgate separate instruction on with intent to distribute.32 sentence State ac rather than modify the quired language existing confidential informant Peterman, in instruc targeted Leech, tion as majority suggests. asked Peterman to up set deal, and both determined provided " 13 Nothing in the suggests record Leech quantity of drugs used. The amply record had previously dealt in large quantities of supports Leech's contention methamphetamine. Peterman testified he agents improperly enlarged the seope of the had borrowed buy $100 to ingredients, and crime Leech prepared commit, (half said grams fourteen ounce) pay order to secure a trafficking conviction. This ment for that debt was right.31 about Of fits squarely within the traditional scope of course, grams fourteen is not within the sentencing entrapment. Leech should have amount necessary for a trafficking charge. had an opportunity present this defense to Agent Snowden testified Officer Pritchett the jury for a determination of sentencing asked him for an ounce of methamphetamine, I would reverse and remand and Officer Pritchett testified he arranged to the case for a new trial. do a "trafficking reverse" with Peterman and Leech. Peterman offered Leech half an payment ounce as $100, for the explained

he wanted Leech to take the other half ounce

and sell it for him. Peterman testified he

had borrowed money from Leech before to make methamphetamine, repaid he or

planned repay "product". Peterman

also testified that Leech had both sold and given drugs him past. Peterman said usually

he quarter used a gram of a at a time buy he would quantities-often small "bump"-from

$20 Leech. Peterman also 0.$.2001, 29. 22 § 926. punishment, determines the trial may court hearing schedule a aggravation evidence of 0.$.2001, (trial § 927 may pun- court fix mitigation punishment.) ishment where none by jury); recommended 0.S.2001, § (granting right of al- 31. Peterman locution); testified that an 0.9.2001, ounce of (trial metham- § 982a court phetamine, whole, sold modify $1000; worth sentence about directing imposition of gram $20, tenth penalty of a another was worth eight- time and an within twelve (3 grams, months 2001, ball after amount) imposed); sentence 1/2 common 22 0.8. was worth (to § $250 $300. aid in its [Trial Tr. I determina- 160-61] tion, a trial require court must presentence Leech's half ounce was worth as much $2800. investigation upon conviction of certain violent felonies); 0.$.2001, (where § 973 the trial 0.$.2001, 2-401(B)(2). § court hears extra evidence in plea, the case of a

Case Details

Case Name: Leech v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 21, 2003

Citation: 66 P.3d 987

Docket Number: F-2001-754

Court Abbreviation: Okla. Crim. App.