State v. Harvill

234 P.3d 1166 (2010)

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Nature of the Case

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Facts

D sold cocaine to Michael Nolte in a controlled buy organized by the Sheriff's Office. D was arrested after the transaction and charged with unlawful delivery of cocaine. D admitted his participation. D testified that he received 9 or 10 calls from Nolte in the days leading up to the controlled buy. Nolte insisted that D get Nolte some cocaine. Nolte's tone was aggressive. D received four more calls on the day of the transaction, the last two while he was at Chuck E. Cheese's restaurant with his family. D claimed that he was afraid that Nolte would immediately come to Chuck E. Cheese's and drag him or one of his family members outside and hurt one of them if D refused. D denied that he sold cocaine otherwise. D and Nolte had known each other for several years. Nolte was 5 feet 10 inches tall and weighed 200 pounds. D was 5 feet 5 inches tall and weighed about 140 pounds. D was afraid of Nolte because he saw Nolte daily at work, where Nolte would brag about how he had once smashed another man's head with a beer bottle, causing brain damage. D also knew that Nolte had previously grabbed a gun from another man and then stabbed him. Nolte and D's brother had wrestled once and Nolte nearly broke the brother's arm. D asserted that Nolte used steroids and that he feared what Nolte was capable of. D requested an instruction on duress and it was denied. It reasoned that D's fear of Nolte stemmed from his knowledge about Nolte's behavior, which the trial court held was insufficient to establish duress as a matter of law. The court allowed D to present a closing argument connecting the evidence of D's fear of Nolte to his entrapment defense. D was convicted and appealed. The appeals court affirmed. D appealed.