Summary
concluding that defendant's evidence was "simply insufficient to permit a jury to infer that any undue persuasion, trickery or fraud was practiced by government agents upon defendant to induce him"
Summary of this case from State v. KellerOpinion
No. 45
Filed 29 August 1978
1. Criminal Law 7 — elements of entrapment The defense of entrapment consists of two elements: (1) acts of persuasion trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, (2) the criminal design originated in the minds of government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities.
2. Criminal Law 7.1 — entrapment — insufficient evidence to require instruction In a prosecution for possession of heroin with intent to sell and sale of defense of entrapment where the following evidence relevant to entrapment was presented: (1) defendant, while on work release during a prison term on an unrelated drug charge, met with the N.C. Attorney General to discuss supplying information on area drug traffic, and the Attorney General agreed to inform the parole board if information supplied by defendant proved useful; (2) defendant then gave information to the Attorney General which did prove useful; (3) while still in prison, defendant met with an SBI agent, who told him about two heroin sales defendant had made to an undercover agent in 1975 and, according to defendant's testimony, informed him of the undercover agent's name; (4) defendant left the latter meeting with the understanding that charges concerning the 1975 sales would be dropped if he would associate and deal with people in the drug trade and continue to supply information; (5) when the undercover agent came to defendant's house in 1976, defendant recognized him as such and got drugs for the agent because he was under the impression that he was supposed to do so in order to get the 1975 drug charges dropped; (6) defendant admitted that, on the basis of his meetings with the Attorney General and the SBI agent, he did not feel that he had a license to go out and sell heroin; (7) the Attorney General testified that he did not authorize defendant to work as an undercover agent; (8) defendant testified that he had not dealt in drugs after his release from prison, other than the sales to the undercover agent, and that when a person once had been in the drug business there was no problem getting information; (9) and defendant neither contacted nor supplied information to any law enforcement official from the time of his meeting with the SBI agent until his sale of heroin to the undercover agent some five months after his release from prison.
ON indictments proper in form, defendant was charged with and convicted of two counts each of felonious possession of heroin with intent to sell and felonious sale of heroin. The Court of Appeals, 34 N.C. App. 501, 238 S.E.2d 322 (1977), (Parker, J., concurred in by Morris and Clark JJ., reported under Rule 30(e)), found no error in defendant's trial before Bailey, J., 6 November 1976 Session, WAKE Superior Court. We allowed discretionary review 24 January 1978.
Joseph Reichbind for defendant appellant.
Attorney General Rufus L. Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Alan S. Hirsch for the State.
Justice EXUM dissenting.
The State's evidence tended to show the following facts:
On 26 August 1976, James W. Lewis, an undercover drug agent for the State Bureau of Investigation, went to defendant's residence in Raleigh to find out if defendant was selling drugs and while there purchased two packages of heroin from him for $25.00 each. At the time of this transaction, defendant told Lewis that "the dope won't that good" and stated that if Lewis would return the next day, he would give him an extra package free. Lewis returned to defendant's home on 14 September 1976, at which time defendant sold him two more twenty-five-dollar packages of heroin and gave him a third package free, saying it was the one he had promised Lewis earlier. The sales on these two dates are the subjects of the indictments on which the instant convictions are based. Agent Lewis had made two previous heroin buys from defendant in early 1975, including one in April of that year, when he first became acquainted with defendant.
Defendant's evidence tended to show that:
In 1975, defendant, on charges unrelated to the sales to Agent Lewis, pleaded guilty to selling heroin and was sentenced to two years imprisonment which commenced on 25 April of that year. While on work release during this imprisonment, defendant was employed at a Howard Johnson Restaurant on Glenwood Avenue. On defendant's request, his supervisor at the restaurant, who was a friend of North Carolina Attorney General Rufus Edmisten, arranged a meeting between the Attorney General and defendant in November or December of 1975. At this meeting, the Attorney General agreed that if defendant provided information on area drug traffic he would inform the parole board that defendant had been helpful. Defendant then gave information to the Attorney General which did prove useful. At a later date, defendant met with SBI Agent Joseph Freeman, who informed him of the two heroin sales defendant had made to Agent Lewis earlier in the year. Defendant testified that he left this meeting with an understanding that if he would associate and deal with people in the drug trade and continue to supply information, charges concerning the two 1975 sales would be dropped. Defendant subsequently was released from prison on 30 March 1976. Defendant further testified that he procured and sold the heroin to Agent Lewis in August and September of 1976 because he had been told by Agent Freeman that Lewis was an SBI Agent and it was his understanding that this was what he was supposed to do in order to erase the two 1975 charges.
On rebuttal, SBI Agent Freeman testified that he made no promises to defendant during their 1975 meeting, nor did he tell defendant who had made the undercover drug purchases from him in early 1975. In addition, two of defendant's neighbors testified that during the spring and summer of 1976, they observed defendant frequently hiding and retrieving small packages outside his home and that people often left defendant's house in a drugged or intoxicated condition.
Additional facts relevant to the decision are set out in the
The sole assignment of error brought forward by defendant on this appeal challenges the refusal of the trial court to charge the jury on the defense of entrapment. We have determined that this assignment is without merit; therefore, decision of the Court of Appeals must be affirmed.
It appears that the first reported consideration of the question of entrapment is found in Genesis 3:13 in which the Creator rejected the plea of Eve, offered in defense of having eaten of the tree of knowledge, that, "The serpent beguiled me, and I did eat."
This Court has earlier held that, "Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant's contention that he was a victim of entrapment, as that term is known to the law." State v. Burnette, 242 N.C. 164, 173, 87 S.E.2d 191, 197 (1955). The defense of entrapment consists of two elements: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, (2) when the criminal design 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. Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d 848, 78 S.Ct. 819 (1958); State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975); State v. Burnette, supra In the absence of evidence tending to show both inducement by government agents and that the intention to commit the crime originated not in the mind of the defendant, but with the law enforcement officers, the question of entrapment has not been sufficiently raised to permit its submission to the jury. State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Coleman, 270 N.C. 357, 154 S.E.2d 485 (1967); State v. Burnette, supra
The evidence in the instant case relevant to the entrapment issue is as follows: (1) defendant, while on work release from prison during a term imposed on an unrelated drug charge, met with Attorney General Rufus L. Edmisten to discuss supplying information on area drug traffic; (2) the Attorney General agreed to inform the parole board of defendant's help if the information supplied by defendant proved useful; (3) while still in prison, defendant met with SBI Agent Freeman, who told him about the two heroin sales defendant had made to an undercover agent in early 1975 and, according to defendant's testimony, informed him that the undercover agent who had purchased the drugs was James Lewis; (4) defendant left this latter meeting with an understanding in his own mind that he was to associate and deal with people in the drug trade and provide more information; (5) when Agent Lewis came to defendant's house in August of 1976, defendant recognized him as an undercover agent and got drugs for Lewis because he was under the impression that he was supposed to do so in order to get the 1975 drug charges dropped; (6) defendant admitted on cross-examination that he did not feel that, on the basis of his meetings with the Attorney General and Agent Freeman, he had a license to go out and sell heroin; (7) the Attorney General, testifying as a witness for defendant, indicated that at no point did he authorize defendant to work as an undercover agent; (8) on further cross-examination, defendant stated that, although he had sold drugs prior to his 1975 convictions, he had not dealt in drugs after his release from prison in March of 1976, other than the sales to Agent Lewis, and that when a person once had been in the drug business, there was no problem getting information.
Defendant's position here is that he understood from his discussions with the Attorney General and SBI Agent Freeman that he was to remain in contact with people in the drug trade and supply information on drug traffic to state law enforcement officials in order to have the 1975 heroin charges dropped. From this defendant asserts that a jury could conclude that when Agent Lewis came to his home and asked defendant to get some heroin for him, defendant, having recognized Lewis as an undercover agent, felt that he was acting in accord with some sort of perceived agreement with the Attorney General and Agent Freeman in procuring the heroin and selling it to Lewis and, consequently, that defendant was entrapped into committing the crimes charged in the indictments here. Nowhere in defendant's account of these two meetings, however, is there any indication that either of the officials with whom defendant spoke suggested that he sell heroin in the course of his continued association with drug figures. Indeed, as noted above, defendant conceded that he did not feel that he had a license to sell heroin. Defendant further stated that once a person had been in the drug business, there was no difficulty in getting information on the trade. In addition, defendant's testimony discloses that he neither contacted nor supplied information to any law enforcement official from the time of his November 1975 meeting with Agent Freeman until the day in August of 1976, some five months after defendant's release from prison, when Agent Lewis appeared at defendant's residence in his undercover capacity seeking to purchase drugs.
It is our conclusion that this evidence is simply insufficient to permit a jury to reasonably infer that any undue persuasion, trickery or fraud was practiced by government agents upon defendant to induce him to carry out the alleged heroin sales in question. The discussions related by defendant concerned only the supplying of information on activities within the drug trade and not active participation by defendant therein. Defendant does not contend that it was necessary for him to involve himself in drug sales in order to obtain knowledge to be transmitted to the authorities. He clearly conceded that information was available to him merely by virtue of his past involvement in the drug business; yet, other than one unsuccessful attempt, defendant failed to seek to communicate with any official so as to supply that which he asserts was the quid pro quo of his alleged agreement with the State.
Activity on the part of law enforcement agents which brings about the commission of a criminal act by a defendant as a result of the persuasion of the agents constitutes entrapment under our law. State v. Stanley, supra Defendant's own evidence here, however, indicates that the earlier persuasion exercised by the State was directed explicitly to a quest for information and that the actions of Agent Lewis on the dates of the purchases were merely in the nature of providing an opportunity for criminal conduct and not excessive inducement. Merely affording opportunities or facilities for the commission of a crime, however, does not amount to entrapment. Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210 (1932). We therefore hold that the trial court did not err in refusing to submit an instruction on entrapment to the jury and defendant's assignment of error to the contrary is overruled.
For the reasons stated, the decision of the Court of Appeals finding no error in defendant's trial and conviction is
Affirmed.