State v. Board , 1976 N.C. App. LEXIS 2537 ( 1976 )

HEDRICK, Judge.

Defendant assigns as error the denial of his motions for judgment as of nonsuit. Citing State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975), and numerous other cases, defendant contends the evidence discloses as a matter of law that he was “entrapped” by law enforcement officers into committing the criminal offenses which he did not otherwise contemplate doing. We do not agree.

In State v. Stanley, supra at 32, Justice Branch wrote the following:

“The rule governing the application of the defense of entrapment as a matter of law is clearly and concisely stated by the New Hampshire Supreme Court in State v. Campbell, [110 N.H. 238, 265 A. 2d 11]. We quote from that case:

Ordinarily, if the evidence presents an issue of entrapment it is a question of fact for the jury to determine. The court can find entrapment as a matter of law only where the undisputed testimony and required inferences compel a finding that the defendant was lured by the officers into an action he was not predisposed to take.” (Citations omitted.)

While the State’s evidence, particularly that elicited from Casey on cross-examination, raises an inference that Casey used his position as basketball coach, confidant, and friend of the defendant to induce the defendant to commit offenses which he did not otherwise contemplate committing, the evidence likewise raises an inference that the agents of the SBI and Casey merely afforded the defendant the opportunity to commit offenses which he was predisposed to commit and which actually originated in the defendant’s mind. These conflicting inferences of fact must be resolved by the jury under proper instructions. Upon this record we cannot say the “undisputed testimony and required inferences compel a finding that the defendant was lured by the officers into an action he was not predisposed to take.”

This brings us to the defendant’s contention that the court erred in its instructions to the jury. Defendant excepted to the following instructions.

“I instruct you that a person such as Ernie Casey who honestly and in good faith carried out the instructions of a police officer and who acts for the exclusive purpose of assisting in law enforcement does not violate the law.”

At trial, defendant’s entire defense was that he was entrapped into the commission of the offenses charged. Whether the defendant was entrapped ’ necessarily depended upon the conduct of the witness Casey and his association with the defendant.- The defendant’s evidence with respect to Casey’s conduct and his relation with the defendant was in conflict with that of the State. Thus, the credibility of the testimony of Casey was critical to the defendant’s defense. In the challenged instruction, the judge clearly expressed an opinion on the credibility of the witness Casey. It was for the jury to say whether he “honestly and in good faith” carried out the instructions of an agent of the SBI. It must be remembered that Casey was a bank employee who wanted a career in law enforcement, and he was acting as an undercover agent only at the time of his involvement with the defendant. We think the challenged instruction was prejudicial to the defendant and entitles him to a new trial.

We need not discuss defendant’s additional assignments of error since they are not likely to occur at a new trial.

New trial.

Judges Morris and Arnold concur.