State of Arizona v. Maverick Kemp Gray

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

MAVERICK KEMP GRAY,
Appellant.

No. CR-15-0293-PR
Filed June 20, 2016

Appeal from the Superior Court in Pima County
The Honorable Scott Rash, Judge
No. CR20132758-001
AFFIRMED

Opinion of the Court of Appeals, Division Two
238 Ariz. 147, 357 P.3d 831 (App. 2015)
VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Christopher M. DeRose (argued), Senior Litigation Counsel, Phoenix,
Attorneys for State of Arizona

Steven R. Sonenberg, Pima County Public Defender, David J. Euchner
(argued), Deputy Public Defender, Tucson, Attorneys for Maverick Kemp
Gray

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL and TIMMER
joined, and JUSTICE BOLICK dissented.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 Consistent with Arizona’s common law, we hold that A.R.S.
§ 13-206(A) affords a defense of entrapment only when the defendant
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Opinion of the Court

affirmatively admits the substantial elements of the charged offense. A
defendant cannot invoke this affirmative defense merely by declining to
challenge the state’s evidence, even when it includes incriminating
statements made by the defendant to an undercover officer.

I.

¶2 In June 2013, an undercover police officer approached
Maverick Gray at a bus stop and asked if Gray could help him get some
“hard,” a slang term for crack cocaine. Gray agreed to obtain twenty
dollars’ worth of cocaine for a ten-dollar fee. The officer drove with Gray
to an apartment complex and gave him twenty dollars; Gray left the car and
returned ten minutes later with the cocaine; the officer then gave him ten
dollars for the fee. Gray was arrested and charged with sale of narcotics.

¶3 The officer secretly recorded his conversation with Gray, 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
Gray’s objection that it was unreliable. Based on his recorded statements,
Gray also asked the trial court to instruct the jury on the entrapment defense
recognized in A.R.S. § 13-206. As a prerequisite for this defense, the statute
requires a defendant to “admit by [his] testimony or other evidence the
substantial elements of the offense charged.” Concluding that Gray had not
admitted these elements, the trial court refused the requested instruction.
The jury found Gray guilty and the trial court sentenced him to 9.25 years
in prison. The court of appeals affirmed, ruling that Gray was not entitled
to an entrapment instruction because he had not admitted the substantial
elements of the crime. State v. Gray, 238 Ariz. 147, 150 ¶ 12, 357 P.3d 831,
834 (App. 2015).

¶4 We granted review because the application of the statutory
entrapment defense presents a recurring issue of statewide importance.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

II.

¶5 We here consider whether § 13-206 requires a defendant who
requests a jury instruction on the entrapment defense to affirmatively admit
the substantial elements of the offense and, if so, what qualifies as “other

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Opinion of the Court

evidence” for such an admission. We review these issues de novo. See State
v. King, 225 Ariz. 87, 89 ¶ 5, 235 P.3d 240, 242 (2010) (reviewing issues of
statutory interpretation de novo); State v. Miller, 234 Ariz. 31, 43 ¶ 41, 316
P.3d 1219, 1231 (2013) (noting that trial court’s refusal to give a jury
instruction is reviewed for abuse of discretion, but legal adequacy of
instructions is reviewed de novo).

¶6 When a statute's language is clear, “it controls unless an
absurdity or constitutional violation results. But if the text is ambiguous,
we also consider the statute's context; its subject matter, and historical
background; its effects and consequences; and its spirit and purpose,”
Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc. 235 Ariz. 141, 144-45
¶ 13, 329 P.3d 1043, 1046-47 (2014) (citations and internal quotations
omitted).

¶7 By its terms, § 13-206 requires a defendant “to admit . . . the
substantial elements of the offense charged.” The statute does not expressly
address whether a defendant can “admit” the elements merely by not
challenging the state’s evidence. Gray argues that we should construe the
statute as not requiring a defendant to affirmatively admit the elements. He
notes that silence can, in some contexts, be deemed an admission, and he
contends that we should deem his not offering evidence to contradict his
recorded statements to be an “admission” for purposes of § 13-206. We find
these arguments unconvincing in light of the background to the statute’s
enactment.

¶8 Before 1997, Arizona’s entrapment defense was a creation of
the common law. This Court addressed the defense in State v. McKinney,
108 Ariz. 436, 439, 501 P.2d 378, 381 (1972), holding that “[a] defendant who
wishes to avail himself of a defense of entrapment must admit the
substantial elements of the crime and one who denies knowledge of the
crime may not raise the defense of entrapment.” McKinney further
described the requirements for a valid entrapment claim: “there has to exist
activity by the State in the nature of inducement to commit a crime which
the accused would not have otherwise committed, although providing the
mere opportunity to commit the offense is not sufficient.” Id. (citing State
v. Duplain, 102 Ariz. 100, 101, 425 P.2d 570, 571 (1967)).

¶9 In 1983, we reaffirmed that a defendant, in order to invoke the
entrapment defense, must admit the elements of the offense. State v. Nilsen,

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Opinion of the Court

134 Ariz. 431, 432, 657 P.2d 419, 420 (1983). Nilsen also clarified that
although a defendant “need not take the stand in order to assert the defense
of entrapment,” a defendant cannot “passively admit” the elements. As
alternatives to the defendant’s testifying, Nilsen noted that a defendant may
stipulate to the admission or have it read into evidence. Id.

¶10 Five years after Nilsen, the United States Supreme Court took
a different approach to the entrapment defense as a matter of federal law –
holding that a defendant is not required to admit the offense’s elements in
order to raise the defense. Mathews v. United States, 485 U.S. 58, 62 (1988).
Thus, in federal court, defendants may contend both that they did not
commit a charged offense and, alternatively, that their commission of the
crime should be excused because they were entrapped. Id. States, however,
are not required to follow Mathews because the defense is not of
“constitutional dimension.” Id. at 65, quoting United States v. Russell, 411
U.S. 423, 433 (1973).

¶11 Our Court rejected the Mathews approach in State v. Soule, 168
Ariz. 134, 137, 811 P.2d 1071, 1073 (1991). In reaffirming Nilsen by a 3-2 vote,
this Court noted that “allow[ing] a defendant to testify as to two defenses
that cannot both be true is equivalent to sanctioning a defendant’s perjury,”
and “allowing inconsistent defenses may confuse the jury.” Id. at 136, 811
P.2d at 1073. Two justices vigorously disagreed, arguing in favor of the
Mathews rule. Id. at 137-39, 811 P.2d at 1074-76 (Feldman, V.C.J., joined by
Gordon, C.J.). The Court, however, reiterated that entrapment “is a
relatively limited defense available only to defendants who have
committed all the elements of a proscribed offense,” and that the defense is
not available to defendants who do not testify or “otherwise present to the
jury some evidence of [their] admission to the elements of the crime.” Id.
Thus, our common law consistently required a defendant to affirmatively
admit the elements of the crime in order to claim entrapment.

¶12 In 1997, the legislature codified the entrapment defense by
enacting § 13-206, which provides that the defendant must “admit by
testimony or other evidence the substantial elements of the offense
charged.” Gray argues that the legislature, by referring to “other evidence,”
intended to expand the circumstances in which a criminal defendant may
“admit” the elements of a crime to include a defendant’s merely declining
to challenge the state’s evidence.

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Opinion of the Court

¶13 Criminal statutes are interpreted in light of their common law
antecedents, although Arizona has abolished common law crimes and
defenses. See A.R.S. § 13-103(A); Engle v. State, 53 Ariz. 458, 465, 90 P.2d
988, 991 (1939). Section 13-206 does not itself reflect any intent to alter the
common law requirement that a defendant affirmatively admit the
elements of the offense. Moreover, the legislative fact sheet for the bill that
became § 13-206 noted that “[t]he definition of entrapment is derived from
the definition used in case law,” Arizona State Senate, H.B. 2002 Fact Sheet
at 1 (1997), and that the statute “requires that a defendant admit to
committing the crime he or she is charged with in order to use the
affirmative defense of entrapment.” Id. at 2.

¶14 We hold that the legislature in enacting § 13-206 generally
codified the Nilsen rule – in order to raise an entrapment defense, the
accused must affirmatively admit, by testimony or other evidence, the
substantial elements of the offense. (Nilsen and Soule referred
interchangeably to “substantial elements” and “all elements” of the offense,
and neither party here has argued that there is a difference.) Such an
admission cannot be accomplished merely by the defendant passively
declining to challenge the state’s evidence. But we also reject the State’s
argument that, for purposes of § 13-206, “other evidence” refers only to a
defendant stipulating at trial or having an admission read into evidence. In
referencing these alternatives, Nilsen did not exhaustively identify the ways
in which a defendant can admit the elements of a crime.

¶15 Nilsen contemplated an affirmative admission by a
defendant’s testimony or “any other manner,” 134 Ariz. at 431, 657 P.2d at
419. “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.

¶16 Gray also argues that requiring a defendant to affirmatively
admit the elements of a crime before claiming entrapment conflicts with the
Fifth Amendment’s guarantee that “no person shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. This
argument founders because entrapment is an affirmative defense – it is not
a denial of an element of the offense or criminal responsibility, but instead

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Opinion of the Court

“attempts to excuse the criminal actions of the accused.” A.R.S. § 13-103(B).
See United States v. Braver, 450 F.2d 799, 803 (2d Cir. 1971) (noting that
defense “does not negative any essential elements” of the crime at issue).

¶17 Entrapment presupposes that the defendant has committed
the criminal offense charged, but “the idea of committing the offense
started with law enforcement officers or their agents rather than with the
person” and “the law enforcement officers or their agents urged and
induced the person to commit the offense.” A.R.S. § 13-206(B)(1)-(2). See
also Paul Marcus, The Entrapment Defense, § 6.02D (4th ed. 2012) (noting
that federal constitution does not preclude requiring defendant to prove
entrapment as an affirmative defense); cf. Dixon v. United States, 548 U.S. 1,
5-8 (2005) (recognizing that Constitution allows placing burden on
defendant of proving affirmative defense of duress).

¶18 Requiring a defendant who chooses to assert an entrapment
defense to admit the elements of the charged offense does not “compel”
self-incrimination. See Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993)
(ruling that trial court did not violate due process by following Arizona law
and requiring defendant to admit all elements of offense before instructing
jury on entrapment). “That the defendant faces . . . a dilemma demanding
a choice between complete silence and presenting a defense has never been
thought an invasion of the privilege against compelled self-incrimination.”
Williams v. Florida, 399 U.S. 78, 84 (1970) (holding that privilege against self-
incrimination is not violated by requiring defendant to give notice of alibi
defense and to disclose alibi witnesses); see State v. Seliskar, 298 N.E.2d 582,
583 (Oh. 1973) (requiring defendant to offer evidence to establish self-
defense does not violate privilege against self-incrimination).

¶19 Limiting the entrapment defense to those who choose to
admit the elements of the crime also does not implicate the
“unconstitutional conditions” doctrine. See Corbitt v. New Jersey, 439 U.S.
212, 218 (1978) (holding that Fifth Amendment privilege was not
unconstitutionally burdened by a statute making first-degree murder
defendants who pleaded no contest eligible for sentence of less than life
imprisonment); cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 285-88
(1998) (holding, irrespective of “unconstitutional conditions” doctrine, that
Fifth Amendment privilege is not violated by state’s drawing adverse
inference from defendant’s declining to testify at voluntary clemency
hearing). If states can constitutionally “condition” eligibility for a reduced

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Opinion of the Court

sentence on a defendant’s pleading guilty or no contest, which results in a
conviction, there similarly is no constitutional bar to Arizona limiting the
entrapment defense to defendants who admit the elements of a crime, but
still retain the prospect of acquittal.

¶20 We turn to Gray’s argument that his recorded statements are
“other evidence” sufficient to show that he affirmatively admitted the
substantial elements of the charged offense. Even if we assume, without
deciding, that a defendant’s recorded statements to an undercover officer
could constitute “other evidence” for § 13-206(A) purposes, Gray’s
argument is not convincing. He was charged with violating A.R.S. § 13-
3408(A)(7), which provides that “[a] person shall not knowingly . . .
transport for sale, import into this state, offer to transport for sale or import
into this state, sell, transfer or offer to sell or transfer a narcotic drug.”
Although Gray made incriminating statements in his recorded
conversation, he did not affirmatively admit the substantial elements of this
offense. There is a difference between a defendant admitting the
commission of a crime and unwittingly inculpating himself. Moreover,
although the officer asked Gray to help him obtain “some hard,” the
recorded conversation alone does not prove that Gray in fact provided
drugs to the officer. That Gray did not contest the officer’s testimony
explaining the events captured in the audio recording does not amount to
an affirmative admission.

¶21 Finally, we note that the dissenting opinion observes that
Arizona has adopted a uniquely narrow - indeed, “draconian” - view of the
entrapment defense, ¶ 25, and that Gray, unable to assert such a defense,
“has been sentenced to over nine years in jail for accepting an undercover
officer’s invitation to obtain twenty dollars’ worth of crack for a fee of ten
dollars.” ¶ 56. As a matter of policy, we might well agree that the
entrapment defense should be more widely available, but our legislature
has adopted a different view in A.R.S. § 13-206 by expressly limiting the
defense to those who admit the elements of the crime. Gray’s sentence also
reflects legislative policy judgments – he received the statutory
presumptive sentence under A.R.S. § 13-703(I) because he committed the
offense at issue while on release after a prior conviction for a drug-related
offense. Reconsidering these policy judgments is within the purview of the
legislature rather than the courts.

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Opinion of the Court

III.

¶22 Because Gray did not affirmatively admit to the substantial
elements of the offense charged, the trial court did not abuse its discretion
in denying his requested entrapment instruction. We affirm Gray’s
conviction and sentence, and we vacate the opinion of the court of appeals.

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JUSTICE BOLICK, Dissenting

BOLICK, J., dissenting:

¶23 I believe that the entrapment defense requirement in A.R.S.
§ 13-206(A) presents serious constitutional concerns; and that by the
statute’s plain meaning, Gray is entitled to raise an entrapment defense.
Accordingly, I respectfully dissent.

I.

¶24 Arizona is unique in many ways, most of them good. It is a
freedom-loving state, as reflected in the words engraved above the entrance
to our Supreme Court: “Where law ends, tyranny begins.” This case
illustrates the wisdom of those words.

¶25 One way in which Arizona is unique, unfortunately, is its
statutory requirement that a criminal defendant must admit the substantial
elements of the crime before raising an entrapment defense, a rule the
majority today affirms. Arizona’s outlier status in that regard is well-
recognized but not well-regarded. See, e.g., Marcus at § 6.13 (“Perhaps the
court to follow most strictly the inconsistent defense principle is the
Arizona Supreme Court” and “the Arizona view is in the distinct
minority”); Soule, 168 Ariz. at 137, 811 P.2d at 1074 (Feldman, J., dissenting)
(“the majority effectively leaves Arizona as a minority of one”).1 There are
many issues on which Arizona might productively blaze a distinctive trail,
but its draconian requirement for invoking the entrapment defense is not
one of them.

1 Justice Feldman went on to explain, “While some other states forbid
inconsistent defenses in entrapment situations, Arizona applies the rule
more strictly than any other court by requiring the defendant to admit every
element of the crime as a condition of pleading entrapment, even when
denying an element would not be inconsistent with the entrapment
defense.” Soule, 168 Ariz. at 137, 811 P.2d at 1074. After Soule, Mississippi
adopted a statutory requirement nearly identical to Arizona’s. Miss. Code
Ann. § 99-1-25 (2005). Previously the Mississippi Supreme Court had
abolished the rule that a defendant must admit the offense before receiving
an entrapment instruction. Hopson v. State, 625 So.2d 395 (Miss. 1993).

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JUSTICE BOLICK, Dissenting

¶26 The majority points out that entrapment is a statutorily based
affirmative defense, and that a criminal defendant has no constitutional
right to invoke it. Hence, the majority concludes, the state may condition
the exercise of the defense however it chooses. To the contrary, by requiring
a defendant to affirmatively admit the substantial elements of the crime, the
statute (especially as construed in this decision) implicates the defendant’s
right against self-incrimination, protected both by the Fifth Amendment
(“No person . . . shall be compelled in any criminal case to be a witness
against himself . . . .”), and by article 2, section 10 of the Arizona
Constitution (“No person shall be compelled in any criminal case to give
evidence against himself . . . .”).

¶27 The entrapment defense plays an important role not only in
protecting the due process rights of criminal defendants by ensuring that
they will be punished only for crimes for which they are genuinely
culpable, but in constraining government conduct that is incompatible with
a free society. As the United States Supreme Court declared in Sorrells v.
United States, 287 U.S. 435, 452 (1932), “The defense is available, not in the
view that the accused though guilty may go free, but that the government
cannot be permitted to contend that he is guilty of a crime where the
government officials are the instigators of his conduct.”

¶28 The Court formally articulated the entrapment defense in
Sorrells, in which the defendant pleaded not guilty to charges of possessing
and selling whiskey in violation of Prohibition laws and also raised an
entrapment defense. Id. at 438. Construing the applicable criminal statutes
to allow an entrapment defense, the majority ruled that the question of
entrapment should be presented to the jury. Id. at 452.

¶29 Justice Owen Roberts, joined by Justices Brandeis and Stone,
agreed with the result but issued a separate concurring opinion. The trio
defined entrapment as “the conception and planning of an offense by an
officer, and his procurement of its commission by one who would not have
perpetrated it except for the trickery, persuasion, or fraud of the officer.”
Id. at 454. However, differing with the opinion of the Court, they concluded
that the entrapment defense did not derive from statute.

The doctrine rests, rather, on a fundamental rule
of public policy. The protection of its own
functions and the preservation of the purity of

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JUSTICE BOLICK, Dissenting

its own temple belongs only to the court. It is
the province of the court and of the court alone
to protect itself and the government from such
prostitution of the criminal law. The violation
of the principles of justice by the entrapment of
the unwary into crime should be dealt with by
the court no matter by whom or at what stage of
the proceedings the facts are brought to its
attention.

Id. at 457.

¶30 Under any circumstances, entrapment is no easy defense. As
defined in Sorrells and widely applied since then, the defense is established
only when “the particular act was committed at the instance of government
officials,” weighed against any evidence regarding “the predisposition and
criminal design of the defendant.” Id. at 451. Where it is an affirmative
defense, as in Arizona, the defendant has the burden of proof.

¶31 In the early days of the entrapment defense, most
jurisdictions also held that the defense could not be raised unless the
defendant admitted the commission of the acts constituting the crime, on
the ground that innocence and entrapment are inconsistent defenses. See
Marcus at § 6.11. It is that conventional wisdom the majority embraces in
this case. But over time, a number of courts came to reject that view,
including the United States Supreme Court in Mathews, 485 U.S. at 64-65.

¶32 Mathews presented the question of whether under federal law,
a criminal defendant could raise an entrapment defense without admitting
all of the elements of the crime. Id. at 59. In a decision by Chief Justice
Rehnquist, the Court concluded, “We are simply not persuaded by the
Government’s arguments that we should make the availability of an
instruction on entrapment where the evidence justifies it subject to a
requirement of consistency to which no other such defense is subject.” Id.
at 66.

¶33 Justice Scalia concurred, observing that “the defense of
entrapment will rarely be genuinely inconsistent with the defense on the
merits, and when genuine inconsistency exists its effect in destroying the
defendant’s credibility will suffice to protect the interests of justice.” Id. at

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JUSTICE BOLICK, Dissenting

67 (Scalia, J., concurring). An example that immediately comes to mind
from this observation is a crime that requires specific intent. Certainly it
would not be inconsistent to admit engaging in certain actions while
denying the intent to commit the crime. Yet doing so in “affirmative
admission” jurisdictions such as Arizona would mean foregoing either an
innocence or entrapment defense even where both may be true.

¶34 The Ninth Circuit, in a decision cited with approval by the
United States Supreme Court in Mathews, id. at 65-66, held likewise that
there “is no conceivable reason for permitting a defendant to assert
inconsistent defenses in other contexts but denying him that right in the
context of entrapment.” United States v. Demma, 523 F.2d 981, 985 (9th Cir.
1975) (en banc). “Indeed, there is a compelling reason for not making an
exception of the entrapment defense. The primary function of entrapment
is to safeguard the integrity of the law enforcement and prosecution
process.” Id.

¶35 Like other jurisdictions, Arizona traditionally followed the
“inconsistent defense” rule that barred an entrapment defense absent an
affirmative admission to the elements of the crime. Nilsen, 134 Ariz. at 431,
657 P.2d at 419. But unlike other jurisdictions, it did not abandon or modify
the rule after Mathews. Rather, the Court reaffirmed the rule by a 3-2 vote
in Soule, invoking the dissent in Mathews. Soule, 168 Ariz. at 136-37, 811 P.2d
at 1073-74. Subsequently, the rule was codified in A.R.S. § 13-206(A).

¶36 Commentators have observed that requiring admission of the
substantial elements of the crime as a prerequisite to an entrapment defense
raises Fifth Amendment self-incrimination concerns. See, e.g., Marcus at
§ 6.13; Kristine K. Keller, Evolution and Application of the Entrapment Rule:
Abandonment of the Inconsistency Rule, 11 Hamline L. Rev. 351, 366 (1988).
Justices Feldman and Gordon pointed out the inverse side of that
constitutional problem, that the affirmative admission requirement
“relieves the prosecution of its constitutional burden of proving the
elements of the case.” Soule, 168 Ariz. at 139, 811 P.2d at 1076 (Feldman, J.,
dissenting).

¶37 Although there is no recognized constitutional right to an
entrapment defense, forcing defendants to choose between raising the
defense and forfeiting precious constitutional rights presents an
unconstitutional condition. “The doctrine of unconstitutional conditions

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JUSTICE BOLICK, Dissenting

holds that government may not grant a benefit on the condition that the
beneficiary surrender a constitutional right, even if the government may
withhold that benefit altogether.” Kathleen M. Sullivan, Unconstitutional
Conditions, 102 Harv. L. Rev. 1413, 1415 (1989). Here, Arizona offers an
entrapment defense to criminal defendants, but only at the cost of
surrendering the right against self-incrimination. The state is not
constitutionally entitled to exact such a high cost for invoking a legitimate
(indeed in many instances essential) defense.

¶38 To be sure, not every condition attached to the exercise of a
benefit bestowed by government is unconstitutional.

It is not necessary to challenge the proposition
that, as a general rule, the state, having power
to deny a privilege altogether, may grant it
upon such conditions as it sees fit to impose.
But the power of the state in that respect is not
unlimited, and one of the limitations is that it
may not impose conditions which require the
relinquishment of constitutional rights.

Frost v. R.R. Comm’n, 271 U.S. 583, 593-94 (1926). Though the doctrine is far
from crystal clear or absolute, the United States Supreme Court has
invalidated conditions requiring the relinquishment of constitutional rights
on numerous occasions. See, e.g., Elrod v. Burns, 427 U.S. 347 (1976) (right to
political association may not be exacted as the price for holding public
employment); FCC v. League of Women Voters of California, 468 U.S. 364 (1984)
(public funding of broadcasting may not be conditioned on requirement not
to editorialize). As the Court held recently in the context of a land-use
permit, the unconstitutional conditions doctrine forbids the government
from “pressuring someone into forfeiting a constitutional right” by
“coercively withholding benefits,” remarking that the “facile generalization
that there is no constitutionally protected right to [the benefit] is to obscure
the issue.” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2595-
96 (2013).

¶39 The principle applies with great force in the criminal law
context. In United States v. Jackson, 390 U.S. 570 (1968), the Court struck
down part of a federal statute that exposed defendants in certain
kidnapping cases to the death penalty unless they pled guilty or waived the

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JUSTICE BOLICK, Dissenting

right to a jury trial. “The inevitable effect of any such provision, is of course,
to discourage assertion of the Fifth Amendment right not to plead guilty
and to deter exercise of the Sixth Amendment right to demand a jury trial.”
Id. at 581. The Court held, “Whatever might be said of Congress’ objectives,
they cannot be pursued by means that needlessly chill the exercise of basic
constitutional rights.” Id. at 582. After examining the government’s
explanations, the Court concluded that “it is clear that the selective death
penalty provision . . . cannot be justified.” Id.2

¶40 Similarly, in State v. Quinn, 218 Ariz. 66, 178 P.3d 1190 (App.
2008), our court of appeals excluded the admission of blood samples from
a driver that were taken without probable cause. The state argued that a
statute required drivers to surrender their right to probable cause as a
condition for driving on public roads. Id. at 70 ¶ 12, 178 P.3d at 1194. Citing
Frost, the court held that “states may not condition the grant of a privilege
on the forfeiture of a constitutional right.” Id. at 73 ¶ 26, 178 P.3d at 1197.

¶41 Does A.R.S. § 13-206(A), to use the verbiage from Jackson,
“chill,” “deter,” or “discourage” the assertion of the right against self-
incrimination? See generally 390 U.S. at 581-82. Yes, and it does even more:
it requires that defendants affirmatively and (by virtue of the majority’s
opinion) explicitly admit they have committed the substantial elements of
a crime in order to avail themselves of an entrapment defense.

¶42 Given the centrality of the right against self-incrimination in
both the Bill of Rights and our state’s Declaration of Rights, see Miranda v.
Arizona, 384 U.S. 436 (1966), it would be difficult for the State to articulate a

2 Compare Jackson, with Williams, 399 U.S. at 84 (“That the defendant
faces . . . a dilemma demanding a choice between complete silence and
presenting a defense has never been thought an invasion of the privilege
against compelled self-incrimination.”). There the defendant was forced to
provide notice of an alibi defense and to disclose alibi witnesses, which the
Court characterized as “a limited form of pretrial discovery.” Id. at 80. The
defendant was not forced as a condition of raising the alibi defense either
to testify or admit the elements of the defense, which is a far cry from the
requirement at issue here. Nor is it problematic that defendants must
prove, through testimony or otherwise, the affirmative defense. See Dixon,
548 U.S. at 5-8.

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JUSTICE BOLICK, Dissenting

sufficient justification for the condition. Instead, the State’s justifications
are feeble: first, “the Mathews rule fosters perjury and more litigation,”
because “[t]o allow a defendant to testify as to two defenses that cannot both
be true is equivalent to sanctioning a defendant’s perjury”; and second,
“allowing inconsistent defenses may confuse the jury.” Soule, 168 Ariz. at
136, 811 P.2d at 1073.

¶43 Those justifications repeatedly have been debunked. As the
Court remarked in Sorrells, 287 U.S. at 451, “Objections to the defense of
entrapment are also urged upon practical grounds. But considerations of
mere convenience must yield to the essential demands of justice.” The
Mathews Court addressed these concerns at length:

The Government argues that allowing a
defendant to rely on inconsistent defenses will
encourage perjury, lead to jury confusion, and
subvert the truth-finding function of the trial.
These same concerns are, however, present in
the civil context, yet inconsistency is expressly
allowed under the Federal Rules of Civil
Procedure. We do not think that allowing
inconsistency necessarily sanctions perjury.
Here petitioner wished to testify that he had no
intent to commit the crime, and have his
attorney argue to the jury that if it concluded
otherwise, then it should consider whether that
intent was the result of Government
inducement. The jury would have considered
inconsistent defenses, but petitioner would not
have necessarily testified untruthfully.

485 U.S. at 65.

¶44 The Court went on to note that as a practical matter, it will be
difficult for a defendant to establish entrapment without testifying, which
will subject the defendant to cross-examination and impeachment. Id.
Moreover, inconsistent defenses will impair a defendant’s credibility, thus
providing a check against raising them. Id. at 65-66 (citing Demma, 523 F.2d
at 985). “While the success of a defendant in convincing a jury that he was
entrapped may be reduced by his failure to testify, that is a choice that he

15
 STATE V. GRAY
JUSTICE BOLICK, Dissenting

has a right to make free of any compulsion whatsoever. To hold otherwise
would raise a serious fifth amendment question.” United States v. Annese,
631 F.2d 1041, 1047 (1st Cir. 1980).

¶45 Ultimately, there is simply no reason not to entrust the
entrapment defense to the jury, even where a defendant has not
affirmatively and explicitly admitted guilt. See, e.g., Soule, 168 Ariz. at 138,
811 P.2d at 1075 (Feldman, J., dissenting) (“only a jury can determine
whether there is any real inconsistency”); Morris v. State, 779 S.W.2d 526,
528 (Ark. 1989) (Newbern, J., concurring) (“Finally, I must ask what harm
it would do in these cases to permit the instruction,” given that “the defense
is an affirmative one, and the burden of proof is wholly on the
accused . . . .”). That is especially true in a state in which the “right of trial
by jury shall remain inviolate.” Ariz. Const. art. 2, § 23. The State’s
justifications for requiring the defendant to affirmatively admit the
substantial elements of the crime do not rise to the tremendous cost of
surrendering precious constitutional liberties.

¶46 Indeed, a prior provision of § 13-206 suffered a similar
infirmity. As originally enacted, the statute contained section D, which
provided, “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.”
A.R.S. § 13-206(D) (1997). Our court of appeals held that § 13-206(D)
“utterly eviscerated” a defendant’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 . . . .” State v. Preston, 197
Ariz. 461, 468 ¶ 17, 4 P.3d 1004, 1011 (App. 2000). The court acknowledged
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,” but that
“is not a reason, however, to deny a defendant these fundamental,
constitutional rights.” Id. at ¶ 18. Likewise here, a decision to invoke § 13-
206(A) denies defendants precious rights to a jury determination of guilt or
innocence and to remain silent or otherwise avoid self-incrimination.

¶47 Nor does the statute as presently constructed, and as the
Court construes it here, cure the unconstitutional condition. Technically,

16
 STATE V. GRAY
JUSTICE BOLICK, Dissenting

the statute does not require the defendant to testify, allowing the admission
of the substantial elements of the crime by “other evidence.” Nonetheless,
the Court holds that it requires a defendant to incriminate himself through
an “affirmative admission.” The majority says this is permissible because
entrapment is an affirmative defense. But in other contexts, criminal
defendants are not put to a choice between maintaining innocence and
asserting an affirmative defense, and it is precisely that forced choice that
comprises the unconstitutional condition.

¶48 The majority suggests that the entrapment condition is no
different than a plea bargain, in which a defendant admits an offense in
return for reduced charges and/or penalties. But a plea bargain is exactly
that: a bargain. An offer of a plea bargain does not in most instances chill,
deter, or discourage the assertion of constitutional rights, and plea bargains
serve important interests of certainty, efficiency, and finality. Thus the
differences between plea bargains and the condition here are of
constitutional magnitude.3 Indeed, in overturning the admission
requirement for an entrapment defense in Demma, 523 F.2d at 986, the Ninth
Circuit remarked that continued adherence to the admission requirement
“would have generated serious constitutional problems by conditioning the
assertion of a defense on the defendant’s yielding his presumption of
innocence, his right to remain silent, and his right to have the Government
prove the elements of the crime beyond a reasonable doubt.” See also
Commonwealth v. Tracey, 624 N.E.2d 84, 88 (Mass. 1993).

¶49 For the foregoing reasons, in an appropriate case, I would be
strongly inclined to hold that the A.R.S. § 13-206(A) affirmative admission
requirement constitutes an unconstitutional condition and may not be

3 Neither case cited by the majority, see ¶ 19, involved defendants being
required to affirmatively admit elements of the crime. Rather, they
involved voluntary decisions, specifically a plea bargain and a voluntary
clemency interview, which only serve to underscore the mandatory nature
of the requirement here. Those situations present a marked difference from
being required to affirmatively admit the substantial elements of the crime.
See Corbitt, 439 U.S. at 217 (in plea bargain context, “the pressures to forgo
trial and to plead to the charge in this case are not what they were in
Jackson”); Ohio Adult Parole Auth., 523 U.S. at 288 (“this pressure to speak in
the hope of improving his chance of being granted clemency does not make
the interview compelled”).
17
 STATE V. GRAY
JUSTICE BOLICK, Dissenting

required to assert an entrapment defense. For purposes of the present case,
these serious constitutional concerns counsel the narrowest possible
construction of a defendant’s obligations in order to assert an entrapment
defense. See, e.g., Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 272, 872 P.2d 668,
677 (1994) (where possible, a court should avoid interpretations that render
a statute unconstitutional).
II.

¶50 Unfortunately, the majority exacerbates the statute’s
constitutional problems by interpreting “other evidence” and “substantial
elements” to prevent Gray from raising an entrapment defense even though
his words, entered into evidence by the State, were essentially an admission
of the crime.

¶51 The statute uses two crucial terms that appear pregnant with
meaning yet are left undefined: the defendant must admit the “substantial
elements” of the crime by testimony or “other evidence.” What constitutes
“substantial” elements rather than mere “elements” is unclear. But I agree
with the majority that whatever they are, they are set forth in the relatively
straightforward language of A.R.S. § 13-3408(A)(7), which provides among
other things that a person “shall not knowingly . . . sell [or] transfer . . . a
narcotic drug.”

¶52 The meaning of the term “other evidence” seems more
obvious. If it is not testimony but is evidence, then by definition it is “other
evidence.” Finding this term unclear, the majority resorts to secondary
methods of interpretation to determine that “other evidence” means
evidence of a defendant’s affirmative admission of the elements of the
offense. Although the majority is correct when it says that “[o]ther evidence
is not limited to a post-charge admission,” and that a post-Miranda
admission would qualify, it fails to adequately explain why a pre-Miranda
admission, like the one here, does not constitute other evidence. The
majority instead concludes that “[a]though Gray made incriminating
statements in his recorded conversation, he did not affirmatively admit the
substantial elements of this offense.” Precisely what magic words are
required is left to future litigants and courts to hash out.

¶53 Clearly, the recorded statement is “other evidence.” It was
offered as such by the State, objected to by defendant, and entered into
evidence. Concededly, a closer question is whether Gray’s statement

18
 STATE V. GRAY
JUSTICE BOLICK, Dissenting

admitted the substantial elements of the crime. The nature of the proposed
transaction — to sell or transfer narcotic drugs — was clear, and knowingly
agreed to by Gray. Then over the course of the journey, Gray said, “I’m a
good person” and “I don’t usually do this . . . .” The latter words were
spoken immediately subsequent to the transaction, and in their context are
an unmistakable admission to knowingly selling or transferring narcotic
drugs, which are the substantial elements of the crime. By rejecting a
construction of the statute that accepts the recorded statement as other
evidence admitting the substantial elements of the crime, the majority
plunges the statute into the abyss of unconstitutionality.

III.

¶54 The line between effective law enforcement and entrapment
can be a thin one, but it is essential for it separates the rule of law from
tyranny. As such, access to the entrapment defense is important not only
to those accused of crimes but to society generally. The legislature has great
latitude in this area, but it cannot transgress its constitutional boundaries
by conditioning a defense upon the surrender of protected liberties.

¶55 I attach myself to the views of Arkansas Supreme Court
Justice Purtle, who in expressing the opinion that an affirmative admission
requirement as a prerequisite to asserting an entrapment defense presents
a constitutional question, remarked that “[l]aw enforcement officers ought
not to be paid to go about actively encouraging people to commit crimes.”
Morris, 779 S.W.2d at 528 (Purtle, J., dissenting). Fortunately, his views
ultimately prevailed when the court abolished the requirement in Smoak v.
State, 385 S.W.3d 257, 263 (Ark. 2011). I hope our state, doctrinally
committed as it is to individual liberty and constraints on excessive
government power, soon will put an end to this unconstitutional condition.

¶56 In the meantime, Mr. Gray has been sentenced to over nine
years in jail for accepting an undercover officer’s invitation to obtain twenty
dollars’ worth of crack for a fee of ten dollars. Because he was not allowed
to present an entrapment defense without surrendering fundamental
rights, we will never know whether Gray was a cunning drug courier
awaiting precisely such an opportunity, or whether he was simply waiting
for a bus.

¶57 With great respect to my colleagues, I dissent.

19