State v. Salame

210 S.E.2d 77 (1974) 24 N.C. App. 1

STATE of North Carolina
v.
Antonio SALAME.

No. 7318SC713.

Court of Appeals of North Carolina.

November 25, 1974. Certiorari Denied and Appeal Dismissed February 4, 1975.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Smith, Moore, Smith, Schell & Hunter by Jack W. Floyd, Greensboro, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court February 4, 1975.

PARKER, Judge.

Prior to arraignment defendant moved to dismiss the charges against him on the grounds that the extent and degree of participation by agents for the State in the commission of the offenses charged resulted in a denial of due process. After conducting a voir dire examination at which Officer Mylan testified concerning the circumstances under which he purchased marijuana and cocaine from defendant and concerning the activities of the police informant, Kenny Lawson, the court denied defendant's motion to dismiss. In this ruling we find no error. We also find no error in the denial of defendant's renewed motion for nonsuit, made at the close of the evidence upon the same grounds of denial of due process.

It is, of course, elementary that the State has no business fostering crime and that it is no part of the duty of law enforcement officers to incite crime for the sole purpose of punishing it. But a "clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception." State v. Burnette, 242 N.C. 164, 169, 87 S.E.2d 191, 194 (1955). The determinant is the point of origin of the criminal intent. Entrapment is a defense and prosecution is barred only when it is established that the criminal intent started in the mind of the officer or agent of the State and by him was implanted in the innocent mind of the accused, luring him into commission of an offense which he would not otherwise have committed. In this State the burden is on the defendant to establish the defense of entrapment to the satisfaction of the jury. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Bland, 19 N.C.App. 560, 199 S.E.2d 497 (1973); State v. Williams, 14 N.C.App. 431, 188 S.E.2d 717 (1972).

The fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution, nor will the mere fact of deceit defeat a prosecution, "for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play." United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366, 376 (1973). In Russell the United States Supreme Court reaffirmed its prior decisions which made defendant's predisposition to commit the crime the central inquiry when the defense of entrapment is raised and a majority of the Court expressly declined to make the defense turn on the type and degree of governmental conduct involved. In that connection the following observation made by Justice Rehnquist in the majority opinion of the Court is pertinent to the case now before us:

"While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 [25 A.L.R.2d 1396] (1952), the instant case is distinctly not of that breed." 411 U.S. 423, 431-432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373 (1973).

In our opinion the evidence in the case now before us furnishes no stronger basis than did the evidence in Russell for invoking due process principles to bar defendant's convictions. Indeed, many of the circumstances of the present case simply do not constitute illegal entrapment.

"Included in the list of circumstances which do not constitute illegal entrapment are: the making of `buys,' from persons reasonably suspect, by law enforcement officials acting through informers, usually narcotic addicts; acts of enforcement officers posing as addicts in order to procure a purchase from persons who previous investigation indicated were engaged in illegal traffic in narcotics; solicitation by officers of sales in the ordinary way as between buyer and seller; procuring by officers of illegal prescriptions from physicians; purchases by officials solicited by narcotics peddlers; decoy letters, etc." Annot., Entrapment—Narcotics Offense, 33 A.L.R.2d 883, 885.

Applying the foregoing principles to the present case, it is questionable whether the defense of entrapment arises at all upon the evidence insofar as the charge of illegal distribution of marijuana is concerned. Nothing in the State's evidence suggests that either Officer Mylan or his informer, Lawson, did anything other than inquiring of defendant if he had drugs for sale and thereafter arranging a meeting at which such a sale might be made. Defendant, who had the burden of proof, offered no evidence to the contrary, and his own admission to having made at least one prior illegal sale of marijuana, coupled with the uncontradicted evidence showing that he readily acquiesced in selling a substantial amount of marijuana to Mylan, furnishes strong basis for inferring that the intent to commit the offense was initially his.

Evidence of entrapment in the case of the sale of cocaine is scarcely stronger. The playacting engaged in by Hightower and Mylan did nothing more than to preserve Mylan's role as a person engaged in the drug traffic who was ready and able to purchase the cocaine which, on the previous day, defendant had already expressed a willingness to sell. Defendant's testimony that the cocaine which he sold to Mylan was supplied him by some man who he could not identify but whom he believed to be the same man he had seen in Mylan's car two nights previously, furnishes at most only weak support for the defense theory that some agent for the State supplied defendant with cocaine in order that he might be arrested for selling it. At most this presented a question for the jury and clearly did not compel dismissal by the court as a matter of law. We hold that defendant's motions for dismissal and for nonsuit were properly denied.

At the close of the State's evidence, the defendant called Kenny Lawson, who had not previously testified, to the witness stand. Thereafter, defense counsel, before and during direct and redirect examination, requested that he be allowed to examine Lawson as an adverse or hostile witness, but the trial court denied these motions. We do not agree with defendant's contention that these determinations require reversal. First, the evidence does not establish that, at the time of defendant's trial, Lawson's interests were opposed to defendant's. For some time Lawson had operated as a part-time undercover agent for the Narcotics Division of the Greensboro Police Department. He was not salaried for this activity but did receive occasional payments ranging as high as $20.00. Although this arrangement provided him with a moderate financial incentive for bringing individuals into incriminating contact with the police, at the time of defendant's trial Lawson's monetary interest in defendant's drug activities was at an end. Lawson had already received such payment as he might expect in defendant's case and could expect no additional remuneration for defendant's subsequent conviction. Second, we are unable to find that the trial court's rulings prejudiced or impeded the defense in any material respect. Even a cursory review of Lawson's testimony upon direct and redrect examination indicates that the court permitted defense counsel to question Lawson at great length upon a wide variety of subjects. A careful review of this testimony reveals that such questioning was, in form and effect, a cross-examination. Lawson was intensively interrogated about his unsavory past, including his own involvement with drugs, as well as about the details of his undercover techniques and remuneration. He appeared to answer all questions freely and with reasonable clarity. We find no prejudicial error on the court's failure to grant defendant's motion that Lawson be formally designated as a hostile witness.

Defendant assigns error to the court's rulings which permitted the State's witnesses, Hightower and Mylan, to testify over defendant's objections concerning a meeting which they had with defendant at a downtown motel on 20 March 1973 at which defendant discussed with the two police officers the possibility of his obtaining and selling to them a half-pound of cocaine for a price of between five and six thousand dollars. At this meeting defendant further described to the officers how he had once smuggled cocaine across the border. Defendant also assigns error to the court's permitting Lawson to testify over defendant's objections concerning an occasion which took place about the second week in March 1973, when defendant gave Lawson's fourteen-year-old girl friend three "speed" tablets. Defendant challenges the relevancy of all of this evidence as it bears upon his guilt or innocence of the offenses for which he was being tried. It is true that ordinarily evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. 1 Stansbury's N.C. Evidence, § 91 (Brandis Revision, 1973). In this case, however, defendant did not deny that he committed the offenses with which he was charged. He testified himself that he made the sales described in the indictments against him. His sole defense was that he was entrapped by the officers or their agents into making these sales. As above noted, when the defense of entrapment is raised, defendant's predisposition to commit the crime becomes the central inquiry. We hold that the testimony concerning defendant's dispensing the three "speed" tablets and concerning his conversation and negotiations with the officers at the motel on 20 March 1973, even though relating to events occurring after the offenses for which he was tried had been committed, were sufficiently closely connected in time and circumstances with the offenses charged as to have a logical relevance to show defendant's predisposition to commit those offenses. We find no error in the admission of this evidence.

The defense presented the testimony of one Crowell, a fellow student of defendant's at Guilford College, who testified on direct examination concerning Lawson's activities on the campus. On cross-examination the district attorney asked Crowell if he knew defendant's character and reputation on the campus for dealing in drugs. Defendant's counsel interposed an objection, which the court overruled. Defendant's counsel now contends this ruling was error, pointing out that at the time the question was asked defendant had not yet testified or otherwise put his character at issue. If it be conceded that the objection should have been sustained, no prejudice resulted to the defendant in this case. Crowell answered the question simply that he did not know defendant that well and expressed no opinion as to defendant's character or reputation for dealing in drugs or in any other respect.

We have carefully examined all of defendant's remaining assignments of error and find no error sufficiently prejudicial to warrant granting a new trial. The district attorney's argument to the jury, though forceful, did not go beyond proper limits and certainly did not resemble the jury argument condemned in State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971), cited by defendant. In the one instance in which defendant's counsel interposed an objection because of the district attorney's misstatement of a portion of Officer Mylan's testimony, the trial judge properly instructed the jury to be governed by their own recollection of the evidence. We find the court's jury charge sufficiently complete and free from prejudicial error. In the trial and judgments appealed from we find

No error.

BROCK, C. J., and BALEY, J., concur.