Opinion
No. COA14–1087.
04-07-2015
STATE of North Carolina, Plaintiff, v. Christopher Scott BYRD, Defendant.
Attorney General Roy A. Cooper, by Special Deputy Attorney General Kimberley A. D'Arruda, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant.
Attorney General Roy A. Cooper, by Special Deputy Attorney General Kimberley A. D'Arruda, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant.
ELMORE, Judge.
Christopher Scott Byrd (defendant) appeals from judgments entered 16 October 2012 after a jury found him guilty of attempted trafficking of cocaine by possession of more than 400 grams, in violation of N.C. Gen.Stat. § 90–95(h)(3), and of possession of five or more counterfeit instruments, in violation of N.C. Gen.Stat. § 14–119(b). The trial court sentenced defendant consecutively to a term of 84 to 110 months imprisonment on the trafficking charge and to 17 to 21 months imprisonment on the possession of counterfeit instruments charge. Defendant's appeal is before this Court on writ of certiorari. After careful consideration, we hold that defendant received a fair trial free from error.
I. Background
The State's evidence tended to show the following at trial: On or about 16 April 2011, Detective Richard Alston (Detective Alston), a corporal with the Greensboro Police Department, received a tip from a confidential informant that the informant's co-worker “Chris” (who was later identified as defendant) was looking to purchase cocaine. Detective Alston passed the tip along to Vice/Narcotics Detective Roberto Monge (Detective Monge). Detective Monge called defendant on 18 April 2011. Defendant returned Detective Monge's call that same day. During the call, Detective Monge said he understood that defendant “would probably need something[,]” and defendant responded, “I'm trying to get something big[.]” Detective Monge replied, “my friend told me you looking for half,” meaning half a kilogram of cocaine. Defendant agreed, but also clarified that he was not looking to spend a large sum of money. Defendant said that he would follow up with Detective Monge later that week, but he failed to do so. As such, the Greensboro Police Department did not open a narcotics investigation on defendant at that time.
Nearly four months later, on 6 August 2011, defendant called Detective Monge and stated that he was interested in purchasing “one of them birds [.]” Detective Monge testified that the term “bird” refers to a kilogram of cocaine. Defendant and Detective Monge agreed on a purchase price of “32,” meaning $32,000, which was the going rate for a kilogram of cocaine. At this point, the Greensboro Police Department launched a narcotics investigation on defendant.
On 10 August 2011, Detective Monge and defendant arranged to meet in a Walmart parking lot to complete the drug deal. When defendant approached Detective Monge's front passenger door, Detective Monge asked to see the money. Defendant raised his shirt and “flashed” two packages of vacuum sealed currency, which were later determined to contain $15,350 in counterfeit money. Based on his training and experience, Detective Monge asserted he could see that defendant had less than $32,000 on his person.
Given the monetary discrepancy, Detective Monge determined that it was best to effect an arrest of defendant prior to exchanging the kilogram of cocaine. As such, Detective Monge instructed defendant to stay put while he retrieved the kilogram of cocaine. Detective Monge readied the team of officers and arrested defendant. Although law enforcement had a kilogram of cocaine at the scene, defendant never possessed it prior to his arrest. Defendant appeals his conviction.
II. Analysis
A. Entrapment Instruction
Defendant argues that the trial court erred in failing to instruct the jury on entrapment as a defense to the charge of attempted trafficking of cocaine. We disagree.
Defendant urges this Court to review the above issue for plain error, as he did not request an instruction on entrapment during trial. Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied,459 U.S. 1018, 74 L.Ed.2d. 513 (1982) ). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
“Entrapment is the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.” State v. Broome, 136 N.C.App. 82, 88, 523 S.E.2d 448, 453 (1999) (quotation omitted). A defendant must prove two elements to warrant an entrapment instruction: (1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce a defendant to commit a crime, and (2) a criminal design that “originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities.” State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 750 (1978). “[T]he defense is not available to a defendant who was predisposed to commit the crime charged absent the inducement of law enforcement officials.” State v. Thompson, 141 N.C.App. 698, 706, 543 S.E.2d 160, 165 (2001).
“[T]he fact that government agents merely afford opportunities or facilities for the commission of the offense does not constitute entrapment.” State v. Stanley, 288 N.C. 19, 30, 215 S.E.2d 589, 596 (1975). “Law enforcement may rightfully furnish to the players of [the drug] trade opportunityto commit the crime in order that they may be apprehended. It is only when a person is inducedby the officer to commit a crime which he did not contemplate that we must draw the line.” Broome, 136 N.C.App. at 89, 523 S.E.2d at 454 (citation and quotation omitted) (alteration in original). As such, the trial court can find entrapment as a matter of law only where the defendant was lured by the officers into an action he was not predisposed to take, or where “the Government play[ed] on the weaknesses of an innocent party and beguile[ed] him into committing crimes which he otherwise would not have attempted.” Id.(citations omitted) (alteration in original).
On appeal, defendant argues that an entrapment defense was warranted given the facts of his case. Specifically, defendant alleges that when Detective Monge initiated contact with defendant in April 2011, Detective Monge employed a scheme to play on defendant's addiction to crack cocaine. Defendant argues that he was not predisposed to deal in such large amounts of cocaine, but law enforcement “beguiled him into an absurdly reckless plot to obtain such a huge amount [of narcotics] by playing on his fatal weakness—crack addiction.” Thus, he avers the drug deal constituted a criminal design that originated in the minds of government officials.
The evidence in the case sub judice,viewed in the light most favorable to defendant, amounts to no more than law enforcement providing an opportunity for defendant to commit a crime. Although Detective Monge initiated contact with defendant in April 2011, Detective Monge subsequently ceased contact with defendant a few days after their initial conversation when defendant did not follow up to arrange a drug deal. No criminal investigation was launched against defendant in April 2011 based upon that contact.
Law enforcement had no further contact with defendant until August 2011. Defendant called Detective Monge and, in a voicemail, informed Detective Monge, “I'm ready, man. I'm ready.... I need you, come on. I'm ready. Call me, man.” Detective Monge returned defendant's call on 8 August 2011, and defendant indicated he wanted “one of them birds,” meaning a kilogram of cocaine worth approximately $32,000. Defendant arranged to get $32,000 in counterfeit money from an acquaintance before meeting Detective Monge to complete the exchange.
These facts show that there were no acts of persuasion, trickery, or fraud by law enforcement officers to induce defendant to purchase a kilogram of cocaine. In addition, the evidence fails to show that the criminal design originated in the minds of government officials. Broome, 136 N.C.App. at 88–89, 523 S.E.2d at 453–53. It was defendantwho contacted law enforcement in August 2011, and defendantwho arranged to purchase a kilogram of cocaine. Defendant testified that he was aware that a “bird” of cocaine amounted to one kilogram and cost $32,000. Detective Monge testified that an active narcotics investigation was not commenced against defendant until defendant contacted law enforcement in August 2011.
The facts of this case clearly show that the commission of the crime was orchestrated by defendant alone. Again, involvement by law enforcement amounted to no more than law enforcement providing an opportunity for defendant to commit the crime. The trial court did not err, much less commit plain error, by neglecting to instruct the jury on the defense of entrapment. We overrule defendant's argument.
B. Lesser–Included Offense Instruction
Defendant also contends that the trial court erred in failing to instruct the jury on the lesser-included offense of attempted simple possession of cocaine. We disagree.
Here, defendant failed to object to the omission of the lesser-included offense instruction at trial and, therefore, he did not preserve this issue for appellate review. Nevertheless, in criminal cases, issues that are not preserved by a timely objection may still be raised on appeal if the “judicial action questioned is specifically and distinctly contended to amount to plain error.” State v. Hough, 202 N.C.App. 674, 678, 690 S.E.2d 285, 288 (2010) ; (quoting N.C. R.App. P. 10(a)(4) (2013)). Where a defendant does not “specifically and distinctly” allege plain error, however, he is not entitled to plain error review. State v. Davis, 202 N.C.App. 490, 497, 688 S.E.2d 829, 834 (2010), appeal dismissed, 365 N.C. 366, 719 S.E.2d 623 (2011).
Although defendant references the plain error standard in his brief, such reference pertains solely to the entrapment issue discussed above. Defendant has failed to “specifically and distinctly” allege that it was plain error for the trial court not to instruct the jury on the lesser-included offense. In addition to having neglected to “specifically and distinctly” allege plain error, defendant has failed to advance any reasoned argument in his brief or cite any authority in support of his position on this issue. It is well-settled that issues not set out in an appellant's brief, and in support of which no arguments are stated or authority cited, will be deemed abandoned on appeal. State v. Castaneda,196 N.C.App. 109, 113, 674 S.E.2d 707, 710 (2009) (Issues “not set out in the appellant's brief, or in support of which no reason or argument is stated ... will be taken as abandoned.”). Accordingly, we hold that defendant has waived his right to appellate review of this issue.
C. Ineffective Assistance of Counsel
Defendant argues that defense counsel was ineffective in failing to request a jury instruction on entrapment and on the lesser-included offense of attempted simple possession of cocaine. As discussed above, the trial court did not err in failing to instruct the jury on the entrapment defense, and defendant's argument with regards to the entrapment instruction is without merit.
With respect to defendant's argument that his counsel was ineffective due to counsel's failure to request an instruction on the lesser-included offense of attempted simple possession of cocaine, defendant must show that (1) his counsel's performance was deficient, and (2) the errors prejudiced his defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). A conviction may not be reversed for ineffective assistance of counsel unless, based on the totality of the circumstances, there would have been a different result but for the counsel's alleged errors. Id.at 563, 324 S.E.2d at 248.
Here, defendant fails to argue that his counsel's performance was deficient or that the error prejudiced his defense. Defendant merely states that there is a “reasonable probability” that the outcome of the trial would have differed had counsel requested the lesser-included offense instruction. In addition, defendant argues, “[h]ad there been an instruction on attempted simple possession, the jury would have had an attractive alternative to the all-or-nothing attempted trafficking conviction sought by the State.” Again, defendant has presented no reasoned argument pertaining to this issue. Defendant's argument is unpersuasive, at best, and there is no evidence in the record that defendant was denied effective assistance of counsel. Accordingly, we overrule defendant's argument.
IV. Conclusion
In sum, the trial court did not err in failing to instruct the jury on the defense of entrapment because the facts of the instant case do not warrant such instruction. Defendant waived his right to appellate review of the issue involving the trial court's alleged error in failing to instruct the jury on the lesser-included offense of attempted simple possession of cocaine. We hold that defendant's ineffective assistance of counsel claim is without merit and overrule it. Accordingly, we conclude that defendant received a fair trial free from error.
No error.
Judges DAVIS and TYSON concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgments entered 16 October 2012 by Judge Edgar B. Gregory in Guilford County Superior Court. Heard in the Court of Appeals 3 February 2015.