State v. PrestonState v. Preston
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- Florez
¶ 1 Appellant Sean Edward Preston was charged with four counts of sale of methamphetamine to an undercover Tucson police officer. A jury returned verdict forms on which they had written the word “guilty” in the blank space for each of the four counts. The trial court sentenced appellant to concurrent, three-year prison terms on three of the counts and a seven-year term of probation on the other. He appeals, raising several related challenges to the constitutionality of Arizona’s entrapment statute,
¶ 2 At his trial, Preston raised the defense of entrapment, claiming that the undercover police officer originated the idea of the methamphetamine sales and induced him to sell methamphetamine to the officer.
A. It is an affirmative defense to a criminal charge that the person was entrapped. To claim entrapment, the person must admit by the person’s testimony or other evidence the substantial elements of the offense charged.
B. A person who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence:
1. The idea of committing the offense started with law enforcement officers or their agents rather than with the person.
2. The law enforcement officers or their agents urged and induced the person to commit the offense.
D. If a person raises an entrapment defense, the court shall instruct the jurors that the person has admitted the elements of the offense and that the only issue for their consideration is whether the person has proven the affirmative defense of entrapment by clear and convincing evidence.
CONSTITUTIONALITY OF STATUTE
¶ 3 Preston argues that the statute is unconstitutional on its face and as applied. He asserts that
¶4 “The constitutionality of [this] statute is a matter of law that we review de novo. We begin with the presumption that the statute is constitutional. ‘The party challenging the validity of a statute has the burden of overcoming that strong presumption.’ ” City of Tucson v. Rineer, 193 Ariz. 160, ¶ 12, 971 P.2d 207, ¶ 12 (1998), quoting State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988). We have “a duty to construe a statute so that it will be constitutional if possible.” State v. McDonald, 191 Ariz. 118, 120, 952 P.2d 1188, 1190 (1998). We may also find part of a statute unconstitutional if it is severable from constitutional portions; “[a]n entire statute need not be declared unconstitutional if constitutional portions can be separated.” Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 151, 800 P.2d 1251, 1259 (1990); see also State v. Prentiss, 163 Ariz. 81, 786 P.2d 932 (1989).
[W]here the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act.
Selective Life Ins. Co. v. Equitable Life As surance Soc’y, 101 Ariz. 594, 599, 422 P.2d 710, 715 (1967).
¶ 5 Prior to the enactment of this statute, Arizona’s entrapment defense, like that in the federal system, was a judicial creation. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991); State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972). The entrapment defense does not arise out of constitutional principles; it is based on the public policy notion that legislatures “could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense but was induced to commit them by the Government.” Russell, 411 U.S. at 435, 93 S.Ct. at 1644, 36 L.Ed.2d at 375; see also Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Soule.
¶ 6 Before enactment of the statute, ease law provided that if a defendant raised the defense of entrapment “ ‘the prosecution [had to] establish beyond a reasonable doubt that the accused was not entrapped into committing the offense.’ ”
McKinney,
108 Ariz. at 440, 501 P.2d at 382,
quoting State v. Boccelli
105 Ariz. 495, 497, 467 P.2d 740, 742 (1970);
see also State v. Apodaca,
166 Ariz. 274, 801 P.2d 1177 (1990). In contrast,
A. Burden of Proof
¶ 7 Relying on
Cooper v. Oklahoma,
517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), Preston first contends that
¶ 8 Moreover, placing a burden of proof on a defendant that is greater than a preponderance of the evidence may be constitutional so long as “a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged____”
Walton v. Arizona,
497 U.S. 639, 650, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511, 526 (1990). For example, the Supreme Court has held that a defendant’s due process rights are not violated when a state requires a defendant to prove the affirmative defense of insanity beyond a reasonable doubt, an even more onerous burden than clear and convincing.
Leland v. Oregon,
343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). Indeed, our supreme court, relying on
Leland,
has held that a defendant’s constitutional rights were not violated by requiring the defendant to prove the affirmative defense of insanity by clear and convincing evidence.
State v. Moorman,
154 Ariz. 578, 744 P.2d 679 (1987). If the higher burden of beyond a reasonable doubt may constitutionally be required to establish the affirmative defense of insanity, we see no reason, nor does Preston give us one, why requiring him to prove his affirmative defense of entrapment by the lesser standard of clear and convincing evidence violates due process. Thus, we conclude that the burden of proof set forth in
B. Jury Instruction and
¶ 9 Preston next contends that
¶ 10 The record shows that before any witnesses had testified, the trial court gave preliminary jury instructions, including instructions explaining the presumption of innocence and the state’s burden of proving Preston’s guilt beyond a reasonable doubt.
See
¶ 11 The principles that an accused is presumed innocent until proven guilty and that the state must establish the accused’s guilt by proof of every element of the offense beyond a reasonable doubt are fundamental to our criminal justice system.
Taylor v.
Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978);
In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);
see also State v. Portillo,
182 Ariz. 592, 898 P.2d 970 (1995) (instruction erroneously defined beyond a reasonable doubt).
¶ 12 We agree with Preston that by instructing the jury in accordance with the statute, the trial court essentially entered a directed verdict of guilt, leaving for the jury to determine only whether he should be held responsible for his crime or absolved because he was entrapped. “[Ajlthough a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182, 188 (1993). Every defendant, including one asserting the affirmative defenses of entrapment or self-defense or insanity, is entitled to a jury verdict based on the quality of the state’s proof. See Sullivan; see also Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (self-defense); Leland (insanity); Eaglin (entrapment). Here, no jury has found appellant guilty of the offenses charged as required by the Sixth Amendment; at most, the jury, following its instructions, found that Preston failed to establish his entrapment defense by clear and convincing evidence. Thus, even though Preston admitted every element of the offense, the presumption of innocence and the state’s burden of proof in criminal cases nevertheless require the jury to determine whether the state has satisfied its burden.
¶ 13 Any dilution of these principles violates a defendant’s constitutional rights. For example, in
Taylor,
the Supreme Court held that, even though the trial court had instructed the jury on the state’s burden of proof beyond a reasonable doubt, the defendant’s right to a fair trial under the Due Process Clause of the Fourteenth Amendment was violated by the court’s refusal to give instructions on the presumption of innocence and that the indictment was not evidence against the defendant. And in
Sullivan,
the Supreme Court reasoned that, because of the relationship between the Fifth Amendment, which requires proof beyond a reasonable doubt, and the Sixth Amendment, which gives a defendant the right to a jury trial, the defendant’s rights under both were violated by a jury instruction that a reasonable juror could have interpreted as permitting a finding of guilt based on less than a reasonable doubt. Our supreme court has made it clear that trial judges are required to instruct “juries on basic legal principles, including burden of proof and reasonable doubt, following the evidence and before the commencement of deliberations.”
State v. Johnson,
173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992);
see also State v. Romanosky,
176 Ariz. 118, 859
¶ 14 The five verdict forms, attached here as exhibits, returned by the jury in this case further demonstrate the constitutional infirmity of
¶ 15 Relying on Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the state argues that the trial court’s refusal to instruct on its burden of proof was harmless error. In Heder, however, the trial court had failed to instruct the jury on one of the elements of the offense; it had not failed to instruct the jury on the presumption of innocence and the state’s burden to prov& guilt beyond a reasonable doubt. The Court thus applied a harmless error analysis and distinguished Sullivan, in which the Court had found that a defective beyond-a-reasonable-doubt instruction was structural error and not subject to a harmless error analysis. The Sullivan Court explained that because
there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of [harmless error] review [under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate.
Sullivan,
508 U.S. at 280, 113 S.Ct. at 2082, 124 L.Ed.2d at 189-90.
See also Arizona v. Fulminante,
499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Because we presume the jury followed the trial court’s instruction under
¶ 16 At oral argument, the state contended that the legislature had simply carved out an exception to a defendant’s constitutional rights to the presumption of innocence and to a jury verdict of guilty beyond a reasonable doubt by requiring an accused who’ asserts an entrapment defense to admit the elements of the offense, and thereby essentially admit guilt. It further argued that the trial court should not have to “go through the charade” of instructing a jury on those rights after the defendant admits the
[I]t is normally “within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,” and its decision in this regard is not subject to proscription under the Due Process Clause unless “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958); Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281, 286-87 (1977). Thus, the legislature may not enact an entrapment statute that restricts the issues a jury must determine in such a way as to deprive a defendant of his fundamental guarantees under the state and federal constitutions. See Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003 (1958); State ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (1992) (Victims’ Rights Act protections must yield to defendant’s right to due process and effective cross-examination of witnesses).
¶ 17 Preston’s constitutional right to the presumption of innocence and to a jury trial at which the jury was required to determine whether he is guilty beyond a reasonable doubt were violated. Those rights were utterly eviscerated by
sever subsection (D) from the statute, however, subsections (A) through (C) still provide a complete scheme for asserting the entrapment defense without unconstitutionally limiting the issues the jury may consider or depriving a defendant of any constitutional protections. See Republic Inv. Fund I. Subsection 13-206(D) is not so “intimately connected [with the valid portions of the statute] as to raise the presumption the legislature would not have enacted one without the other.” Selective Life Ins. Co., 101 Ariz. at 599, 422 P.2d at 715. Thus, we need not declare the entire statute unconstitutional.
¶ 18 We are mindful of the confusion that could result when a defendant takes the stand and admits the essential elements of an offense, yet the jury is instructed that the defendant is presumed innocent and that the state bears the burden of proof beyond a reasonable doubt on all elements of the offense. See Soule. This is not a reason, however, to deny a defendant these fundamental, constitutional rights. We are confident that through effective advocacy in entrapment cases it can be explained to the jury that the defendant’s admissions to the elements of the offense are but another method whereby the state’s burden of proof may be satisfied, minimizing any confusion that may arise from giving the required jury instructions on presumption of innocence and burden of proof.
ALLOCATION OF ARGUMENT
¶ 19 Preston also contends that because he had the burden of proving his entrapment defense, he should have been allowed to make opening and rebuttal arguments after the close of the evidence, which the prosecution is afforded pursuant to
CONCLUSION
¶ 20
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Notes
. In state criminal trials, the Due Process Clause of the Fourteenth Amendment to the United States Constitution “protects the accused against
. Although appellant also contends that the statute is unconstitutional based on article II, § 24, of the Arizona Constitution (rights of accused in criminal prosecutions), he presents no argument related to these constitutional provisions; therefore, we do not consider the contention.
. State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995).
. The forms also asked the jury to find the amount of the methamphetamine, not an issue here, but instructive of the inconsistency between the jury instruction under
. At oral argument, die state also informed this court that