{ "id": 2839573, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Richard Eugene JACKSON, Defendant-Appellant", "name_abbreviation": "State v. Jackson", "decision_date": "1975-06-11", "docket_number": "No. 1743", "first_page": "98", "last_page": "102", "citations": [ { "type": "official", "cite": "88 N.M. 98" }, { "type": "parallel", "cite": "537 P.2d 706" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 295", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770810 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0295-01" ] }, { "cite": "475 F.2d 1367", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 281544 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/475/1367-01" ] }, { "cite": "204 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "130 Ga. App. 659", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 746368 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ga-app/130/0659-01" ] }, { "cite": "356 U.S. 369", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163723 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/us/356/0369-01" ] }, { "cite": "240 F.2d 949", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 419997 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f2d/240/0949-01" ] }, { "cite": "200 F.2d 880", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1281284 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/f2d/200/0880-01" ] }, { "cite": "411 U.S. 423", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9798 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0423-01" ] }, { "cite": "459 F.2d 671", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 724285, 724231 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/459/0671-02", "/f2d/459/0671-01" ] }, { "cite": "65 N.M. 342", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845467 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0342-01" ] }, { "cite": "82 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332833 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0513-01" ] }, { "cite": "84 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766431 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/84/0259-01" ] }, { "cite": "85 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774172 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0339-01" ] }, { "cite": "86 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822000 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0458-01" ] }, { "cite": "166 P. 1174", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "22 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4724510 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/22/0588-01" ] }, { "cite": "83 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334221 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0165-01" ] }, { "cite": "81 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364739 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0365-01" ] } ], "analysis": { "cardinality": 769, "char_count": 13354, "ocr_confidence": 0.829, "pagerank": { "raw": 1.0351933008440048e-07, "percentile": 0.5492349167847237 }, "sha256": "7fce5f0652d5cfaea570ba30ef88e201a41bfba59cab292a1eefc194bde5a773", "simhash": "1:17deef2acf4f0df3", "word_count": 2239 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Richard Eugene JACKSON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nDefendant-Appellant was convicted after trial by jury for trafficking in heroin contrary to \u00a7 54-11-20, N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1973). He brings this appeal alleging three points of error. We affirm.\nPOINT I: \u201cTHE TRIAL COURT ERRED IN DENYING DEFENDANT\u2019S CHALLENGE TO THE JURY.\u201d\nAppellant is a black. He urges reversal under this point on the ground that only one of the thirty-five member panel from which his trial jury was selected shared his racial origins. The ultimate jury selection was accomplished before the name of the one black panel member had been reached, and there was, therefore, no black on the petit jury that rendered his conviction.\nThe challenge to the lack of black representation on appellant\u2019s jury came in a rather short statement made by his trial counsel out of the presence of the jiiry during voir dire. It reads in pertinent part as follows: \u201cMr. Weldon: . It is not a true representative of the class and [is] in violation of the constitution in that the defendant is black and is not properly being represented by a percentage of blacks on the jury.\u201d The argument has no merit. In State v. Tapia, 81 N.M. 365, 467 P.2d 31 (Ct.App.1970), this court held that in order to gain reversal of a conviction in circumstances such as these, the defendant must show that the jury was chosen by a process of purposeful discrimination aimed at the exclusion of minority representation. In his brief on appeal, appellant argues that we should regard the absence of any black persons on the jury as a prima facie showing of purposeful discrimination, thus shifting the burden to the state to make proof of the nonexistence thereof. In this contention, appellant is mistaken. \u201cThe mere absence of persons of a race or class does not give rise to the inference of systematic exclusion.\u201d State v. Newman, 83 N.M. 165, 489 P.2d 673 (Ct.App.1971). Appellant did not allege, nor does the record support, an inference of purposeful exclusion of blacks from jury service; we accordingly affirm the trial court\u2019s denial of appellant\u2019s challenge. State v. Newman, supra.\nPOINT II: \u201cTHE TRIAL COURT ERRED IN SUSTAINING OBJECTION TO DEFENDANT\u2019S INQUIRY OF A WITNESS AS TO HIS LOCATION PRIOR TO TRIAL.\u201d\nThe trial of the charges in this case took a day. The prosecution\u2019s case took all morning. In chambers, at the close of the state\u2019s case, but before the noon recess, counsel for the defendant moved to continue the proceedings until such time as the attendance of one James E. Serna, the informer through whom the undercover narcotics agent achieved introduction to the defendant, could be obtained. A subpoena had been issued three weeks prior to the date of trial, but no return had been made. In support of the continuance, defense counsel proffered what he expected Serna\u2019s testimony would be. The proffer alleged that Serna would testify that defendant was the target of a plan concocted by the Alamogordo police to induce the commission of a trafficking offense. The motion for continuance was denied.\nAt the resumption of proceedings after lunch, Serna was present and took the stand as defendant\u2019s first witness. Counsel for the defendant wanted to know when Serna had returned to Alamogordo and where he had been during the three weeks prior to trial. The District Attorney objected to this inquiry on the grounds of immateriality and irrelevancy. The objection was sustained and Serna went on to testify in terms generally corroborative of the testimony previously elicited from the police witnesses during the state\u2019s case-in-chief and in contradiction of defendant\u2019s proffer.\nThe law in New Mexico indicating the method for preserving a proper objection to the exclusion of testimony has been long established.\n\u201cIn order for the appellant to raise the question as to the propriety of the ruling of the court upon the sustaining of the objection to the question, it was necessary for him to make a tender of the testimony which he expected to elicit . . . . Counsel failing, however, to make a tender, leaves this court without any information concerning the relevancy of the answer, and under these circumstances it will be assumed that the ruling of the trial court was correct.\u201d State v. McCracken, 22 N.M. 588, 166 P. 1174 (1917).\nThe record before us is void of any indication whatsoever of how Serna might have responded to counsel\u2019s inquiry, and the alleged error raised under this point is consequently not capable of resolution on appeal. Kindschi v. Williams, 86 N.M. 458, 525 P.2d 385 (Ct.App.1974); Worthey v. Sedillo Title Guaranty, Inc., 85 N.M. 339, 512 P.2d 667 (1973).\nPOINT III: \u201cTHE INSTRUCTIONS GIVEN TO THE JURY CONCERNING THE DEFENDANT\u2019S THEORY OF ENTRAPMENT WERE ERRONEOUS.\u201d\nUnder this point of error defendant first argues that since State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (Ct.App.1972), jury instructions on entrapment which indicate any concern with the \u201cpredisposition\u201d of the accused are impermissible. He is mistaken. For the New Mexico development in this area, compare State v. Sena, 82 N.M. 513, 484 P.2d 355 (Ct.App.1971); State v. Roybal, 65 N.M. 342, 337 P.2d 406 (1959). Underlying this argument is a distinction that has developed in the federal courts between the so-called \u201csubjective test\u201d and \u201cobjective test\u201d for entrapment. Compare United States v. Russell, 459 F.2d 671 (9th Cir. 1972), with United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L. Ed.2d 366 (1973).\nThe issue in Sains was whether there was entrapment as a matter of law. Speaking to that issue we stated:\n\u201cWe agree with defendant\u2019s statement that \u2018. . .as the part played by the state increases the importance of the defendant\u2019s predisposition and intent decreases, until at some point entrapment as a matter of law is reached . . . . \u2019\u201d\nWe then set forth the test for determining when that point had been reached:\n\u201cWhen the state\u2019s participation in the criminal enterprise reaches the point where it can be said that except for the conduct of the state a crime would probably not have been committed or because the conduct is such that it is likely to induce those to commit a crime who would normally avoid crime, or, if the conduct is such that if allowed to continue would shake the public\u2019s confidence in the fair and honorable administration of justice, this then becomes entrapment as a matter of law.\u201d\nIndeed, the law of entrapment in New Mexico may be characterized as utilizing both tests, weighing the objective indicia of police involvement against the subjectively determined state of mind of the accused. Where it is determined that an accused harbored a strong predisposition for committing the offense charged, a greater degree of governmental participation will be condoned. However, where, as in Sains, the degree of governmental participation is so great that there is serious question as to whether a crime would have been committed without that participation, the extent of the accused\u2019s criminal predisposition will be given little, if any, consideration.\nAt trial, defendant testified that Serna and the state\u2019s undercover narcotics agent visited his home on two occasions on May 23, 1974. During the afternoon encounter, defendant testified that: \u201cJames Serna asked me did I have any dimes. I knew James Serna was using heroin as well as myself, so I trusted him. I told him I would have some later on.\u201d Defendant\u2019s recollection of the second encounter later that night reads in pertinent part as follows :\u2022\n\u201cI was sitting in the living room and they knocked on the door. I got up and answered the door and let both of them in because I knew Velarde [the undercover narcotics agent], Serna had informed me he was all right. So, I trusted him and let him inside the house. While we was in the house, we proceeded to the kitchen. And T, this other friend of mine, he was sitting down at the table. And Serna asked me did I have any stuff. I told him, \u2018Yeah, I got two dimes.\u2019 So, he says, \u2018I\u2019m sick and I need some.\u2019 So I gave him two dimes down on the table.\u201d\nThe indictment in this case charges a sale of a Schedule I controlled substance to undercover agent Velarde. Both Velarde and Serna testified that the sale was to Velarde. Defendant\u2019s version, while clearly confessing a sale, differs from the prosecution\u2019s version in that it maintains that the sale was made to Serna. At the first meeting, the defendant, by his own testimony, indicated that although he had no heroin for sale at the moment, he would be getting some later on in the day.\nIt appears that defendant would have us determine that he was entrapped because Serna claimed he was \u201csick\u201d, and that this then constituted an impermissible degree of governmental inducement. See United States v. Sherman, 200 F.2d 880 (2d Cir. 1952), rev\u2019g. appeal after remand, 240 F.2d 949 (2d Cir. 1957), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). We note, however, that the jury was instructed that it had to find that the sale was made to agent Velarde before it could hold the defendant guilty. The verdict returned was that the defendant was indeed guilty as charged. It is supported by substantial evidence. We do not consider the governmental activity in this case as even remotely analogous to its involvement in Sainz, and we cannot say, as a matter of law, that the defense of entrapment is supported by the record.\n\u201cMere presentation of an opportunity to commit a crime will not satisfy the requirements of the defense. Entrapment \u2018has no application to a situation where enforcement officers merely permit a violation to occur in order to get sufficient facts to insure conviction\u2019. For example, a simple offer by an officer or agent to buy drugs will not warrant an instruction on entrapment.\u201d [Footnotes Omitted.] Entrapment: A Critical Discussion, 37 Mo.L.R. 633 (Fall 1972).\nNevertheless, defendant contends secondly that the giving of instruction 13 constituted jurisdictional error because it laid the burden of proof on the question of entrapment upon the defendant. The challenged instructions read as follow:\n\u201c13. The Defendant has raised the defense of entrapment. Entrapment occurs when the criminal design or conduct originates in the mind of the officer and is implanted by him in the mind of an otherwise innocent person. Another way of defining entrapment is to say that the crime originated with the officer who induced the Defendant to commit the crime when he had no previous disposition to do so.\n\u201cHowever, if the Defendant was engaged in similar crimes or was ready and willing to violate the law and the officer merely afforded him an opportunity to do so, then the defense of entrapment is not established.\n\u201cIt is not permissible for an officer to initiate the criminal act, nor to use undue persuasion or enticement to induce the Defendant to commit the crime, when without such conduct on the part of the officer the Defendant would not have committed the crime.\n\u201cYou are instructed that if you find that the defense of entrapment has been established by the Defendant, then you must find the Defendant not guilty.\u201d\n\u201c14. Where a person already has the willingness and the readiness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment. However, if you have a reasonable doubt whether the Defendant has the previous intent or purpose to commit the offense, and committed the offense only because he was induced or persuaded by Officer Velarde, then you must acquit the Defendant.\u201d\nDefendant contends that the giving of instruction 13, was erroneous; in that the burden should have been more properly placed upon the state to prove beyond a reasonable doubt that defendant was not entrapped. See Reed v. State, 130 Ga. App. 659, 204 S.E.2d 335 (1967); United States v. Banks, 475 F.2d 1367 (5th Cir. 1973) ; United States v. Sherman, 200 F.2d 880, supra. Without commenting on the merits of the argument, we note that the instructions include some aspects of the so-called objective test and some aspects of the subjective test; and we see no reason to disaffirm these instructions upon any consideration of misplaced focus in that regard because both tests are to be applied to the relevant facts of a particular case under our decision in Sainz, supra.\nFinally, as to the burden of proof question, we conclude that it is an issue that we need not decide. Instruction 14 told the jury to acquit the defendant if it had a reasonable doub't on the question of entrapment. Instruction 14, thus, substantially instructs the jury as to defendant\u2019s contention. The fact that instruction 13 may be viewed as inconsistent with number 14 does not provide a basis for review in the absence of an objection by the defendant. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973).\nThe judgment and sentence rendered below are affirmed.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "HERNANDEZ, Judge." } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Robert R. Rothstein, Asst. App. Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe., for plaintiff-appellee." ], "corrections": "", "head_matter": "537 P.2d 706\nSTATE of New Mexico, Plaintiff-Appellee, v. Richard Eugene JACKSON, Defendant-Appellant.\nNo. 1743.\nCourt of Appeals of New Mexico.\nJune 11, 1975.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Robert R. Rothstein, Asst. App. Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe., for plaintiff-appellee." }, "file_name": "0098-01", "first_page_order": 128, "last_page_order": 132 }