State v. Foster

NO. COA13-1084
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 11 CRS 230328
BRANDON MIKAL FOSTER,
Defendant.
Appeal by defendant from judgment entered 11 October 2012
by Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Alesia M. Balshakova, for the State.
Gilda C. Rodriguez for defendant-appellant.
GEER, Judge.
Defendant Brandon Mikal Foster appeals his conviction of
delivery of cocaine. Defendant argues on appeal that the trial
court erred in refusing to instruct the jury on the defense of
entrapment. Based on defendant's evidence that an undercover
officer tricked defendant into believing that the officer was
romantically interested in defendant in order to persuade
defendant to obtain cocaine for him, that defendant had no
predisposition to commit a drug offense such as delivering
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cocaine, and that the criminal design originated solely with the
officer, we hold that the trial court erred in failing to
instruct the jury on the defense of entrapment.
The trial court, however, indicated that it was also
denying the request for an instruction as a sanction under N.C.
Gen. Stat. § 15A-910(a) for failure to provide "specific
information as to the nature and extent of the defense" as
required by N.C. Gen. Stat. § 15A-905(c)(1)(b) (2013). Because
the trial court made no findings of fact to justify imposition
of such a harsh sanction, and the State has not shown that it
suffered any prejudice from the lack of detail in the notice
filed eight months prior to trial, we hold that the trial court
abused its discretion in precluding the use of the entrapment
defense as a sanction. Consequently, defendant is entitled to a
new trial.
Facts
The State's evidence tended to show the following facts.
On 22 June 2011, Officer Thomas Wishon, Officer Daniel Bignall,
and Detective Hefner of the Charlotte-Mecklenburg Police
Department ("CMPD") were working undercover at Chasers, a male
strip club in Charlotte, North Carolina, investigating a
complaint of sexually-oriented business and narcotics
violations. Defendant was working as a dancer at the club that
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night, and there were only a few patrons at the club.
Defendant, whose stage name was Thunder, and another dancer with
the stage name Mercury approached the officers after they
finished dancing. Mercury and defendant gave lap dances to
Officer Bignall and Detective Hefner.
Officer Wishon engaged in small talk with defendant
throughout the evening. Officer Wishon admitted that he tipped
defendant and flirted, maintained eye contact, and joked with
defendant. Towards the end of the night, Officer Wishon asked
defendant if he had a "hookup" and indicated that he would like
to buy some cocaine. Defendant stated that he had a "connect."
Officer Wishon asked defendant for his phone number and told
defendant that he was going to a friend's party but would be
back after the party. Before leaving, Officer Wishon gave
defendant a goodbye hug.
Later that night, Officer Wishon received three text
messages from defendant. The first stated, "'You have to come
back. You never got a lap dance. LOL.:)'" The second text
stated, "'I can get what you wanted if you need it. Let me know
quick.'" The third text stated, "'My friend needs to know what
to get if your [sic] still wanting that.'" Officer Wishon did
not respond to these text messages or return to the nightclub
that night.
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Officer Wishon did not text defendant until 29 June 2011,
when he asked defendant if he was able to "hook him up."
Officer Wishon and defendant exchanged several text messages
discussing the details of the deal. They arranged for Officer
Wishon to go to Chasers the following day to make the purchase.
The next day, 30 June 2011, Officer Wishon went to Chasers
where he and other undercover officers played pool with
defendant until defendant's "source" arrived. When defendant's
source, later identified as Paul Peterson, walked in, defendant
said to Officer Wishon: "Oh. He's here. Let me get your
money." Officer Wishon handed defendant $185.00 and watched
defendant follow Mr. Peterson into the bathroom. When defendant
returned, he had a plastic baggy of cocaine tucked into his
underwear on his hip. He asked Officer Wishon to be "frisky"
with him. Officer Wishon told defendant that he was making him
uncomfortable, but he, nevertheless, retrieved the plastic baggy
of cocaine from defendant's hip. Shortly thereafter, defendant
was arrested.
After defendant was read his rights, he agreed to talk with
Officer Stephanie White of the CMPD. Defendant told Officer
White that he met Mr. Peterson in the bathroom, took the $185.00
given to him by Officer Wishon and exchanged it for the cocaine,
put the cocaine in his underwear and Officer Wishon retrieved
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it. Defendant also told Officer White that Officer Wishon had
offered him $100.00 to broker the drug deal. Officer White
testified that, generally, undercover officers will only offer
someone a cigarette or up to $5.00 at most to broker a drug deal
and that defendant's claim that he was offered $100.00 was a
lie.
On 11 July 2011, defendant was indicted for sale of a
controlled substance, possession with intent to sell or deliver
a controlled substance, and delivery of a controlled substance.
On 2 February 2012, defendant filed a notice of an intent to
assert the defense of entrapment. The notice stated that
"undercover CMPD Officer Wishon, acting on behalf of Charlotte
Mecklenburg Police Department induced Brandon M. Foster to
obtain cocaine, a crime not contemplated by Brandon M. Foster."
At a pretrial hearing on 8 October 2012, the State made a
motion in limine to bar defendant from asserting the defense of
entrapment on the grounds that the notice did not "contain
specific information as to the nature and the extent of this
defense" as required by N.C. Gen. Stat. § 15A-905(c). The trial
court initially denied the State's motion and then asked
defendant to describe more specifically what constituted
entrapment in this case. After defendant gave a proffer of the
evidence he intended to present to support the defense, the
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trial court again denied the State's motion. The trial began
the following day.
Defendant testified in his own defense on the second day of
trial. He testified that on the night of 22 June 2011, he
believed that Officer Wishon was interested in him. Officer
Wishon initiated a conversation with defendant by asking him if
he was single and asking other personal information such as what
he liked to do besides dancing. Defendant told Officer Wishon
that he was in school and that he danced to pay the bills. He
was intrigued by Officer Wishon, noting that Officer Wishon
"never mentioned the fact that I was sitting there in boy shorts
or that I am half naked" and instead kept the conversation
intellectual and sincere.
By the end of the night, defendant had given Officer Wishon
his real name and telephone number, information that he normally
did not give guests at the club. At one point, defendant
commented that he thought Officer Wishon liked Mercury. Officer
Wishon responded that he was into defendant and that is why he
wanted defendant's number and not Mercury's. When Officer
Wishon left, he gave defendant a goodbye hug.
At one point in the night, after having a one-on-one
conversation with defendant, Officer Wishon asked both defendant
and Mercury about getting "straight," which is street language
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for cocaine. Defendant asked "[w]hat are you talking about?"
Officer Wishon clarified that he was referring to cocaine.
Defendant stated that he did not do drugs. However, both
defendant and Mercury told Officer Wishon that they would ask
around for him.
Defendant testified that he did ask around, but did not
find anything that night. He did not speak to Officer Wishon
about drugs again before the officers left. Although defendant
texted Officer Wishon later about the lap dances, he denied
sending the second and third text messages. The last
communication between the two of them that night was Officer
Wishon's response stating that he was not coming back to the
club that night.
Defendant did not hear from Officer Wishon again until one
week later when he texted defendant, "Are you working tonight?"
By that time, defendant had deleted Officer Wishon's number from
his phone, thinking that Officer Wishon had lost interest in
him. Defendant's first response, therefore, was to ask who was
texting him. When defendant found out it was Officer Wishon, he
became excited and giddy. They texted back and forth a few
times, but when Officer Wishon turned the conversation back to
narcotics, defendant slowed down his responses. Referring to
cocaine, Officer Wishon asked defendant if he had ever found
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what Officer Wishon had asked for the night of 22 June 2011.
Defendant told him he had not. Officer Wishon asked defendant
if he could find him drugs, and defendant told him the same
thing he had told him the first night -- that he could ask
around.
Defendant told Officer Wishon to contact Eric, a customer
of defendant's. Defendant began texting between both Officer
Wishon and Eric, relaying the questions of Officer Wishon to
Eric, and forwarding Eric's responses to Officer Wishon.
Officer Wishon told defendant he was planning on going to
Chasers the following night. Defendant forwarded Officer Wishon
a text from Eric stating that the drug dealer was supposed to be
at Chasers that night as well.
On the night of 30 June 2011, defendant was excited to see
Officer Wishon at Chasers and went over to talk to him after he
had finished a set. It was a busy Friday night, so defendant
was unable to talk as much as he had been able to talk on the
first night. Instead, the conversations were centered on
Officer Wishon's questions about the dealer and whether he was
there or not -- Officer Wishon would go to the bar and tip
defendant and ask defendant when the drug dealer would arrive.
He tipped defendant $10.00.
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Eric was at the bar and signaled to defendant when the drug
dealer, Paul Peterson, had arrived. Defendant recognized the
drug dealer as "Uncle Paul," a man who frequented the bar, but
he did not know him personally. Defendant told Officer Wishon
that the drug dealer was at the club, and Officer Wishon asked
defendant to get the cocaine for him. Defendant took the money
from Officer Wishon, followed Mr. Peterson to the bathroom, and
returned with the cocaine. He put the drugs in his underwear
and asked Officer Wishon to retrieve the drugs because he did
not want to touch the drugs himself.
When asked why he got the drugs for Officer Wishon,
defendant replied: "I was doing what I could to impress him. He
seemed to like me. I liked him, so I tried to do that for him."
He also explained, "I had a crush. Having someone continuously
ask you for the same thing makes you feel persuaded to do it."
Defendant testified that in one of the texts from Officer
Wishon, he was told he would be given $100.00 for setting
everything up. However, defendant did not state that money was
what motivated him to help Officer Wishon. Instead, defendant
explained:
I mean, I just I liked him. In my life and
my organization at that profession I was
doing, I didn't get a lot of chances to meet
decent people to actually date or who could
possibly be a possible date.
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When I found someone who I was really,
really interested in and I felt like they
were interested in me, I took a chance
basically.
I didn't per se want to do it with the
narcotics or be involved in it. I felt like
I was pushed more to get it or else the
interest would have been lost on his part in
me.
Defendant felt that Officer Wishon took advantage of both his
emotions and his financial situation. He had told Officer
Wishon that he lived with his mother and that he was working to
support himself and his mother and pay for school. He had never
gotten in trouble before and does not use or sell drugs.
At the close of all the evidence, the State again argued
that it was not given notice of the nature and extent of
defendant's defense of entrapment until trial and asked that it
be given until the following morning to address the issue of
entrapment. In response, defense counsel asserted that
defendant filed his intent to use the entrapment defense on 2
February 2012, 240 days prior to trial.
The trial court then indicated that "[w]hat the Court is
going to hear with regard to the entrapment defense is whether
or not that defense should go to the jury." The court granted
the State's request that it wait to hear the parties' arguments
until the following morning. Specifically, the trial court
stated, "In the morning at 9:30, [the court will hear the
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parties] about whether the issue of entrapment goes to the jury,
based on the evidence before the Court." Defense counsel
responded: "So I may be clear what the State is asking and what
the Court is deciding -- we are not revisiting the issue of the
motion in limine. We are objecting. There is sufficient
evidence to present the testimony to submit to a jury for its
consideration."
The following morning, after hearing the parties' arguments
regarding the sufficiency of the evidence presented on
entrapment, the trial court concluded that there was not
sufficient evidence to instruct the jury on the entrapment
defense. Although the parties had not addressed the adequacy of
the notice, the trial court also added:
In addition, the Court having given
further thought to the motion of State
raises the issue of notice to the state
[sic] of the intent to use the defense of
entrapment, the Court finds that the
defendant failed to comply with the statute;
that the defendant did not give them
specifics as to the basis of the defense.
So in addition to the Court's rul[ing]
finding that the defendant failed to present
sufficient or competent evidence of
entrapment, the defendant further failed to
notify the State in accordance with the
statute of its intent to raise the defense
of entrapment. The Court will not submit
the issue of entrapment to the jury.
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The jury found defendant guilty of delivery of cocaine and
not guilty of the other two offenses. The trial court sentenced
defendant to a presumptive-range term of five to six months
imprisonment. The court suspended defendant's sentence and
placed defendant on supervised probation for 12 months.
Defendant timely appealed to this Court.
Discussion
Defendant first argues that the trial court erred in
concluding that the evidence was insufficient to warrant
submission of the defense of entrapment to the jury.
"Entrapment is the inducement of a
person to commit a criminal offense not
contemplated by that person, for the mere
purpose of instituting a criminal action
against him. To establish the defense of
entrapment, it must be shown that (1) law
enforcement officers or their agents engaged
in acts of persuasion, trickery or fraud to
induce the defendant to commit a crime, and
(2) the criminal design originated in the
minds of those officials, rather than with
the defendant. The defense is not available
to a defendant who was predisposed to commit
the crime charged absent the inducement of
law enforcement officials. The defendant
has the burden of proving entrapment to the
satisfaction of the jury."
State v. Thompson, 141 N.C. App. 698, 706, 543 S.E.2d 160, 165
(2001) (quoting State v. Davis, 126 N.C. App. 415, 417-18, 485
S.E.2d 329, 331 (1997)).
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"The fact that governmental officials merely afford
opportunities or facilities for the commission of the offense
is, standing alone, not enough to give rise to the defense of
entrapment." State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433,
449 (1982). Instead, the defendant must present evidence that
the law enforcement officers or their agents engaged in "acts of
persuasion, trickery, or fraud[.]" State v. Martin, 77 N.C.
App. 61, 67, 334 S.E.2d 459, 462 (1985). "A defendant is
entitled to a jury instruction on entrapment whenever the
defense is supported by defendant's evidence, viewed in the
light most favorable to the defendant." State v. Jamerson, 64
N.C. App. 301, 303, 307 S.E.2d 436, 437 (1983).
In State v. Stanley, 288 N.C. 19, 32-33, 215 S.E.2d 589,
597-98 (1975), our Supreme Court held that the evidence
presented at trial established that the defendant was entrapped
as a matter of law. There, the undisputed evidence showed that
an undercover officer, based on false representations,
befriended the teenage defendant and became a "big brother"
figure to him. Id. at 32, 215 S.E.2d at 597. The officer
repeatedly asked the defendant where he could find and buy
drugs, persuaded the defendant to make more than one drug buy
for him, and supplied the money for the purchases. Id. at 21-
22, 215 S.E.2d at 591. On two occasions prior to his arrest for
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possession of a controlled substance, the defendant purchased
drugs that turned out to be counterfeit because the defendant
did not know the difference. Id. at 22, 215 S.E.2d at 591. The
Supreme Court held that this evidence demonstrated that the
criminal design originated with the officer, and there was not
any evidence indicating that the defendant was predisposed to
engage in possession or distribution of drugs. Id. at 32-33,
215 S.E.2d at 597-98.
Even where the evidence does not establish entrapment as a
matter of law, "[i]f defendant's evidence creates an issue of
fact as to entrapment, then the jury must be instructed on the
defense of entrapment." State v. Branham, 153 N.C. App. 91,
100, 569 S.E.2d 24, 29 (2002). In Branham, the defendant
testified that two days before he was arrested, an informant,
who was the older brother of a girl defendant knew, asked
defendant if he "'could get him a kilo of Cocaine,'" and the
defendant responded that he had no idea where to get it. Id.,569 S.E.2d at 30. The next day, the informant repeatedly asked
the defendant for LSD, and persisted until the defendant agreed
to locate the LSD requested. Id. Although the defendant
offered to drive the informant to the seller so that the
informant could make the purchase himself, the defendant
ultimately agreed to make the purchase after the informant
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offered the defendant an additional $100.00. Id. at 100-01, 569
S.E.2d at 30.
This Court held that the trial court properly instructed
the jury on the issue of entrapment since "there was evidence
that [an informant] and the officers initiated the offense, but
also evidence from which the jury could have inferred that
defendant was predisposed to sell LSD." Id. at 100, 569 S.E.2d
at 30. Specifically, "[d]efendant's testimony that [the
informant] repeatedly pushed defendant to obtain drugs for him,
that he attempted to get [the informant] to make the purchase
himself, and that he had never before been involved in any drug
sales of this quantity" was sufficient to raise an issue of fact
as to inducement and lack of predisposition to commit the
offenses, despite the State's evidence to the contrary. Id. at
101-02, 569 S.E.2d at 30.
In Jamerson, the defendant presented evidence that an
undercover officer and an informant came to the defendant's
apartment and asked the defendant to sell them some drugs, but
the defendant said that he did not have any. 64 N.C. App. at
302, 307 S.E.2d at 436. When the officer and informant returned
a few hours later and the defendant still did not have any drugs
and had not made any attempt to locate any drugs, the officer
repeatedly told the defendant that he desperately needed drugs
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because he was an addict. Id., 307 S.E.2d at 437. After the
informant located a person who would sell drugs and offered the
defendant $15.00 to make the purchase, the informant drove the
defendant to the location and the defendant made the purchase
with money provided by the officer. Id. This Court held that
this evidence was sufficient to require submission of a jury
instruction on entrapment. Id. at 303, 307 S.E.2d at 437.
We believe that the facts of this case are analogous to
Stanley, Branham, and Jamerson. Defendant's evidence and
Officer Wishon's own testimony tended to show that Officer
Wishon falsely led defendant to believe that he was romantically
interested in defendant by asking him personal questions about
defendant's life, maintaining eye contact, flirting, joking with
him throughout the evening, asking for defendant's phone number,
saying that he was "into" defendant rather than another dancer,
and giving defendant a hug goodbye the first night they met.
The undisputed evidence shows that Officer Wishon, who was
investigating narcotics violations, initiated the conversation
regarding drugs by asking defendant where he could get
"straight," a street term for cocaine that defendant did not
understand. After Officer Wishon clarified that he was
referring to cocaine, defendant told Officer Wishon that he did
not do drugs but that he would ask around. Although the State
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presented evidence that defendant, later that evening, renewed
the conversation about his obtaining cocaine for Officer Wishon
in two text messages defendant sent, defendant admitted sending
only a flirtatious text message that did not mention drugs and
denied sending the other two text messages. For purposes of the
entrapment issue, we must assume that defendant's testimony is
true.
Consequently, viewing the evidence in the light most
favorable to defendant, there was no further discussion of drugs
after defendant said simply that he would ask around until, a
week later, Officer Wishon texted defendant about whether he was
working that night. In the meantime, defendant had deleted
Officer Wishon's phone number from his phone, an act a jury
could find was consistent with someone focused on a romantic
interest rather than a potential drug client. The initial texts
a week later were not about drugs, but Officer Wishon then again
asked defendant about obtaining drugs for him. Defendant
ultimately did not himself act as an intermediary with the drug
dealer, but identified one of his clients who could assist
Officer Wishon with connecting with the drug dealer -- evidence
which suggests that defendant did not have a predisposition to
engage in drug dealing.
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In addition, defendant testified that he only agreed to
help Officer Wishon obtain the drugs because he was romantically
interested in Officer Wishon, and, after being continuously
asked about the drugs, "felt like [he] was pushed more to get it
or else the interest would have been lost on [Officer Wishon's]
part in [defendant]." The record also contains no evidence that
defendant had previously used drugs, engaged in drug dealing, or
was aware of common street lingo for drugs -- indeed, the record
contains no evidence of any other behavior on defendant's part
that was suggestive of a predisposition to help supply someone
with drugs.
In sum, viewed in a light most favorable to defendant,
Officer Wishon's flirtatious behavior towards defendant combined
with his persistent requests for cocaine persuaded defendant to
obtain the cocaine for Officer Wishon. Further, defendant's
evidence would permit the jury to find that the idea for the
crime (delivery of cocaine) originated with and was pursued
solely by Officer Wishon, with no indication that defendant had
any predisposition to participate in drug transactions.
Thus, as in Stanley, Branham, and Jamerson, the undercover
officer initiated the conversation about drugs, persisted in
seeking drugs, and provided defendant with the money for the
exchange. Moreover, Officer Wishon's acts of inducement, like
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those of the undercover officer in Stanley, involved emotional
manipulation including creating a false relationship and then
taking advantage of the defendant's desire to maintain that
relationship. Finally, as in Stanley, there was no evidence of
predisposition.
The State, nevertheless, argues that Officer Wishon merely
afforded defendant the opportunity to commit the offense,
arguing that the facts of this case are analogous to Thompson,
Martin, State v. Rowe, 33 N.C. App. 611, 235 S.E.2d 873 (1977),
State v. Booker, 33 N.C. App. 223, 234 S.E.2d 417 (1977), and
State v. Stanback, 19 N.C. App. 375, 198 S.E.2d 759 (1973),
decisions holding that the evidence was insufficient to show
that the defendant was entrapped. We disagree.
In each of the cases cited by the State, the evidence
established that the undercover agent had reason to believe the
defendant was a drug dealer, or the defendant was otherwise
specifically targeted by the undercover agent because the agent
had reason to believe the defendant could obtain drugs. See
Martin, 77 N.C. App. at 63, 334 S.E.2d at 460 (evidence was
presented that defendant told undercover agent that "he had been
dealing drugs for sixteen years and had a reputation in the
community as a 'fair dealer who gave a good product at a fair
price'"); Thompson, 141 N.C. App. at 699-700, 543 S.E.2d at 162
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(sheriff's office received information from informant that
defendant was selling drugs from his apartment and defendant was
a heroin addict with extensive criminal history); Booker, 33
N.C. App. at 223, 234 S.E.2d at 417 (undercover officer went to
defendant's house and asked to buy drugs, and defendant stated
that he knew where he could get some marijuana and was able to
retrieve drugs in 20 minutes); Rowe, 33 N.C. App. at 614, 235
S.E.2d at 875 (evidence established that undercover agent
"worked herself into the drug traffic society and purchased
drugs from the defendant"); Stanback, 19 N.C. App. at 376, 198
S.E.2d at 760 (undercover agent went to defendant's apartment to
purchase drugs that defendant had promised to sell to agent
previous day, and defendant told agent after transaction that
"'[a]nytime you need anything, an ounce or a lid or a pound, I
can get it for you'").
While the State argues that this case is similar to the
decisions upon which it relies because defendant did not
hesitate before telling Officer Wishon that he would ask around
about drugs and did so in a short period of time, in the cases
the State cites, any evidence tending to show that the defendant
needed little urging before agreeing to the undercover agent's
request was consistent with the totality of the evidence
suggesting that the defendant was, in fact, a drug dealer.
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When, in this case, the evidence is viewed in the light most
favorable to defendant, there is no suggestion that defendant
was a drug dealer, had any criminal history, or was in any way
predisposed to commit the offense of delivery of cocaine
independent of government influence.
Given the lack of evidence regarding defendant's criminal
predisposition, any evidence that defendant required little
urging before agreeing to ask around for drugs could be
attributed by a jury to defendant's romantic interest in Officer
Wishon and a desire to impress him. Thus, the evidence that the
State points to as showing that defendant was predisposed to
commit the crime is consistent with defendant's theory of the
entrapment defense and merely creates an issue of fact for the
jury to decide. We therefore hold that defendant presented
sufficient evidence of the essential elements of entrapment, and
the trial court erred in refusing to instruct the jury based on
a lack of evidence.
The question remains whether the trial court's denial of
defendant's request for an entrapment instruction may be upheld
as a sanction for defendant's failure to provide adequate notice
of his defense. N.C. Gen. Stat. § 15A-905(c)(1)(b) specifies
that a defendant must provide the State with notice of its
intent to offer at trial the defense of entrapment and that the
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notice must "contain specific information as to the nature and
extent of the defense." The trial court, in this case, found
generally that defendant violated N.C. Gen. Stat. § 15A-
905(c)(1)(b) because "defendant did not give [the State]
specifics as to the basis of the defense." The trial court then
used this violation as an additional basis for its refusal to
submit the issue of entrapment to the jury.
If a trial court determines that a defendant has violated
N.C. Gen. Stat. § 15A-905(c)(1)(b), it may impose any of the
following sanctions on the defendant:
(1) Order the party to permit the discovery
or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing
evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without
prejudice, or
(4) Enter other appropriate orders.
N.C. Gen. Stat. § 15A-910(a) (2013).
However, "[p]rior to finding any sanctions appropriate, the
court shall consider both the materiality of the subject matter
and the totality of the circumstances surrounding an alleged
failure to comply with this Article or an order issued pursuant
to this Article." N.C. Gen. Stat. § 15A-910(b). "If the court
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imposes any sanction, it must make specific findings justifying
the imposed sanction." N.C. Gen. Stat. § 15A-910(d).
"Whether a party has complied with discovery and what
sanctions, if any, should be imposed are questions addressed to
the sound discretion of the trial court." State v. Tucker, 329
N.C. 709, 716, 407 S.E.2d 805, 810 (1991). "'Abuse of
discretion results where the court's ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.'" State v. Elliot, 360
N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
As explained by our Supreme Court, "the rules of discovery
contained in the Criminal Procedure Act were enacted by the
General Assembly to ensure, insofar as possible, that defendants
receive a fair trial and not be taken by surprise. They were
not enacted to serve as mandatory rules of exclusion for trivial
defects in the State's mode of compliance." State v. Thomas,
291 N.C. 687, 692, 231 S.E.2d 585, 588 (1977). Despite the
General Assembly's emphasis on protecting defendants from the
State's noncompliance, "[s]uch legislative intent . . . does not
give defendants carte blanche to violate discovery orders, but
rather, defendants and defense counsel both must act in good
faith, just as is required of their counterparts representing
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the State." State v. Gillespie, 180 N.C. App. 514, 525, 638
S.E.2d 481, 489 (2006), modified and affirmed, 362 N.C. 150, 655
S.E.2d 355 (2008). Thus, the rules of discovery have been
applied with equal force to both defendants and the State to
ensure a fair trial and avoid unfair surprise for both parties.
See, e.g., State v. McMahon, 67 N.C. App. 181, 183, 312 S.E.2d
526, 527 (1984) (applying common law notions of fairness and
holding that discovery rule applicable to State is equally
applicable to defendant).
In State v. Cooper, ___ N.C. App. ___, ___, 747 S.E.2d 398,
414 (2013), appeal dismissed and disc. review denied, ___ N.C.
___, 753 S.E.2d 783 (2014), this Court reversed the trial
court's imposition of sanctions against a defendant when the
sanction imposed "was disproportionate to the purposes this
state's discovery rules were intended to serve." In Cooper, the
trial court had excluded the testimony of the defendant's second
expert witness as a sanction for the defendant's failure to
disclose the witness to the State as required by N.C. Gen. Stat.
§ 15A-905 (2011). ___ N.C. App. at ___, 747 S.E.2d at 403. The
defendant had only proffered the second expert witness after the
State successfully moved at trial to exclude the testimony of
defendant's first expert witness on the basis that the witness
was not qualified to testify as an expert. Id. at ___, 747
-25-
S.E.2d at 413. Because the State had not indicated any
intention to challenge the defendant's first expert witness
prior to trial, the defendant did not anticipate needing a
second expert, and, as a result, did not have the second expert
on its witness list. Id. at ___, 747 S.E.2d at 413.
In addressing whether the trial court abused its discretion
in sanctioning the defendant by excluding the testimony of the
expert witness, the Cooper Court first recognized that the
imposition of sanctions on a criminal defendant has
constitutional implications because of a defendant's
constitutional right under the Sixth Amendment to present a
defense. Id. at ___, 747 S.E.2d at 414. The Court then pointed
to the factors set out by the United States Supreme Court in
Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d. 798, 108 S. Ct.
646 (1988), to be considered in determining the appropriate
sanction, consistent with that constitutional right, when a
defendant has failed to disclose a witness:
"Although the Taylor Court declined to cast
a mechanical standard to govern all possible
cases, it established that, as a general
matter, the trial judge (in deciding which
sanction to impose) must weigh the
defendant's right to compulsory process
against the countervailing public interests:
(1) the integrity of the adversary process,
(2) the interest in the fair and efficient
administration of justice, and (3) the
potential prejudice to the truth-determining
function of the trial process. The judge
-26-
should also factor into the mix the nature
of the explanation given for the party's
failure seasonably to abide by the discovery
request, the willfulness vel non of the
violation, the relative simplicity of
compliance, and whether or not some unfair
tactical advantage has been sought."
___ N.C. App. at ___, 747 S.E.2d at 415 (quoting Chappee v.
Vose, 843 F.2d 25, 29 (1st Cir. 1988)).
Applying the Taylor factors to the facts in Cooper, the
Court reasoned:
Defendant, in failing to provide
earlier notice to the State, was clearly not
seeking any tactical advantage. The trial
court made no finding of willful misconduct,
and the record divulges none. Defendant
only sought out another expert . . . after
the State was successful in moving to limit
[the first expert's] testimony in the middle
of the trial. At that point, Defendant had
no way to present vital expert testimony and
comply with N.C.G.S. § 15A–905(c)(2).
In light of the lack of willful
misconduct on the part of Defendant, the
rational reason presented for failing to
inform the State before trial that Defendant
would be calling [the second expert], the
role of the State in having this situation
arise after the trial had commenced, the
fundamental nature of the rights involved,
the importance to the defense of the
testimony excluded, and the minimal
prejudice to the State had the trial court
imposed a lesser sanction -- such as
continuance or recess, we hold that imposing
the harsh sanction of excluding [the second
expert] from testifying constituted an abuse
of discretion.
Id. at ___, 747 S.E.2d at 415.
-27-
In State v. Dorman, ___ N.C. App. ___, 737 S.E.2d 452,
appeal dismissed and disc. review denied, 366 N.C. 594, 743
S.E.2d 205 (2013), this Court addressed, in similar fashion, the
appropriateness of the extreme sanction of dismissal when the
State has committed a discovery violation, even though
sanctioning the State has no constitutional implications. The
Court held that "'[g]iven that dismissal of charges is an
"extreme sanction" which should not be routinely imposed,'" such
dismissals "'should also contain findings which detail the
perceived prejudice to the defendant which justifies the extreme
sanction imposed.'" Id. at ___, 737 S.E.2d at 470 (quoting
State v. Allen, ___ N.C. App. ___, ___, 731 S.E.2d 510, 527-28,
disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert.
denied, ___ U.S. ___, 185 L. Ed. 2d 876, 133 S. Ct. 2009(2013)). After noting that the defendant had possession of the
evidence the State initially failed to disclose, the Court held
that "[a]bsent a finding explaining the specific and continuing
prejudice Defendant will suffer, the trial court's order
dismissing the charge on this basis is in error." Id. at ___,
737 S.E.2d at 470.
We see no reason why the rules set out in Cooper and Dorman
should not apply with equal force to a trial court's refusal to
instruct the jury on an affirmative defense presented by the
-28-
defendant. Such a sanction in this case has the same effect on
the defendant as the "harsh sanction" in Cooper that interfered
with the defendant's defense -- even though defendant was
allowed to present entrapment evidence, the jury was not
instructed in a way that permitted it to consider that evidence
as a basis for acquitting defendant. Given such a harsh
sanction, the trial court was required, under Dorman, to justify
the sanction with findings regarding the prejudice to the State
resulting from defendant's discovery violation.
Requiring the trial court to consider the prejudice to the
State resulting from the defendant's discovery violation before
imposing the extreme sanction of precluding an affirmative
defense is also consistent with this court's holding in State v.
McDonald, 191 N.C. App. 782, 786-87, 663 S.E.2d 462, 465 (2008).
In McDonald, the defendant failed to provide the State with
notice of the defenses it intended to assert at trial as
required by N.C. Gen. Stat. § 15A-905, despite the State having
made several motions requesting notice of defenses. Id. at 785,
663 S.E.2d at 464-65. The trial court ultimately allowed the
defendant to assert the defenses of duress and accident but
precluded the defendant from asserting the defenses of voluntary
intoxication and diminished capacity. Id., 663 S.E.2d at 465.
-29-
This Court noted that the State "had anticipated the
accident defense" and that "unlike the diminished capacity and
voluntary intoxication defenses, the defense of duress would not
require substantial preparation on the part of the State,
including the engagement of experts." Id. at 786, 663 S.E.2d at
465. Because the trial court "precluded only those defenses
that would have prejudiced the State" and allowed defendant to
proceed with other defenses -- either because the State could
have anticipated the defense, or because the State could quickly
and adequately prepare despite the late notice -- this Court
held that the trial court's sanction was not an abuse of
discretion. Id. at 787, 663 S.E.2d at 465.
In line with this Court's analysis in Cooper, Dorman, and
McDonald, we hold that in considering the totality of the
circumstances prior to imposing sanctions on a defendant,
relevant factors for the trial court to consider include without
limitation: (1) the defendant's explanation for the discovery
violation including whether the discovery violation constituted
willful misconduct on the part of the defendant or whether the
defendant sought to gain a tactical advantage by committing the
discovery violation, (2) the State's role, if any, in bringing
about the violation, (3) the prejudice to the State resulting
from the defendant's discovery violation, (4) the prejudice to
-30-
the defendant resulting from the sanction, including whether the
sanction could interfere with any fundamental rights of the
defendant, and (5) the possibility of imposing a less severe
sanction on the defendant.
In this case, the trial court found that defendant violated
N.C. Gen. Stat. § 15A-905(c)(1)(b) because "defendant did not
give [the State] specifics as to the basis of the defense."
Assuming, without deciding, that defendant's notice constituted
a discovery violation, we must determine, in light of the
factors listed above, whether the trial court abused its
discretion in refusing to instruct the jury on the defense of
entrapment.
We note first that the procedure by which the trial court
concluded that defendant failed to comply with the notice
requirements suggests that it was not the result of a reasoned
decision. The trial court originally denied the State's
pretrial motion for sanctions. At the end of the trial, the
trial court indicated that it would hear oral argument regarding
the submission of the entrapment defense to the jury, but
specifically limited the party's arguments to the sufficiency of
the evidence -- the court confirmed that it would not be
revisiting the court's decision to deny the State's pretrial
motion for sanctions. Nevertheless, after ruling that the
-31-
evidence presented by defendant was insufficient to support an
instruction on the defense of entrapment, the trial court, sua
sponte, without giving defendant any notice or an opportunity to
be heard, decided to reverse its denial of the State's pretrial
motion for sanctions and preclude the use of the entrapment
defense as a sanction.
In doing so, the trial court made no findings "justifying
the imposed sanction" as required by N.C. Gen. Stat. § 15A-
910(d) and made no finding that the State had been prejudiced by
the lack of specifics in defendant's notice. The court simply
found that defendant had failed to fully comply with the notice
statute. The procedure followed by the trial court, the failure
to find prejudice, and the lack of findings are inconsistent
with the court's ruling being a reasoned decision to further the
purposes of the rules of discovery. Rather, the record suggests
that the trial court imposed sanctions simply as an afterthought
to bolster its decision not to instruct the jury on entrapment.
In addition, our review of the record reveals no basis for
imposing the extreme sanction of precluding a defense. There is
no indication that defendant, in failing to give more specifics
in his notice, acted in bad faith or to gain an unfair advantage
at trial. Rather, defendant filed a timely notice well in
advance of trial, disclosing his intent to assert the defense of
-32-
entrapment and including the identity of the specific officer
whom defendant contended induced him to commit the crime. The
State made no showing that the omission of further details was
in bad faith or a tactical move.
Indeed, the record indicates that any lack of preparation
to meet the defense was contributed to by the State's failing to
take timely action. Defendant filed his notice on 2 February
2012 -- more than eight months prior to trial. During that
time, the State had general notice of defendant's intent to use
the defense and specific notice that Officer Wishon's actions
resulted in the alleged entrapment. Officer Wishon, the State's
lead witness, was readily accessible to the State for
questioning regarding his conduct in interacting with defendant.
In the event that the State desired additional specifics
regarding defendant's entrapment defense, the State could have
requested more information from defendant or moved for an order
requiring defendant to provide adequate discovery. Given
defense counsel's apparent belief that he had complied with N.C.
Gen. Stat. § 15A-905(c)(1)(b), the State's failure to request
more information or to alert defendant that its notice was
inadequate during the eight months prior to trial, similar to
the State's failure in Cooper to notify the defendant prior to
trial of its intention to challenge the defendant's primary
-33-
expert, deprived defendant of an opportunity to comply with the
rules of discovery in a timely fashion and avoid being subject
to sanctions.
Moreover, the refusal to instruct the jury concerning an
affirmative defense is a harsh sanction that implicates
defendant's fundamental right to present a defense at trial. In
contrast, the prejudice to the State resulting from defendant's
violation was minimal. During the pretrial motions hearing,
defendant gave a detailed proffer of the evidence he intended to
present to establish entrapment. The State did not call its
first witness until the following day, and defendant did not
testify until the second day of trial. Because the evidence on
entrapment was testimonial in nature, was limited to the acts of
Officer Wishon, and "would not require substantial preparation
on the part of the State, including the engagement of
experts[,]" McDonald, 191 at 786, 663 S.E.2d at 465, the
additional days to prepare after receiving notice of the nature
and extent of defendant's entrapment defense should have been
sufficient to remedy any prejudice to the State. In any event,
the State would not have been prejudiced had the trial court
imposed a less severe sanction such as a continuance or a
recess.
-34-
After considering the totality of the circumstances, we
hold that the trial court's refusal to instruct the jury on the
entrapment defense was not a proper sanction for any failure by
defendant to provide sufficiently specific notice of his intent
to assert the defense of entrapment. The trial court's ruling,
therefore, constituted an abuse of discretion. See Dorman, ___
N.C. App. at ___, 737 S.E.2d at 470 (holding trial court's
pretrial order suppressing certain witnesses' testimony from use
in future proceedings based on State's initial failure to
disclose various documented conversations was in error when
defendant was in possession of the relevant information well
before trial, and trial court failed to detail specific and
continuing prejudice defendant suffered as a result of initial
nondisclosure and failed to explain how suppression of
witnesses' testimony remedied non-disclosure).
Conclusion
We hold that defendant presented sufficient evidence to
warrant submission of the entrapment defense to the jury.
Further, the trial court abused its discretion when precluding
the entrapment defense as a sanction for defendant's having
served a notice of his intent to rely upon the entrapment
defense that was not sufficiently specific. Defendant is,
therefore, entitled to a new trial.
-35-
New trial.
Judges STEPHENS and ERVIN concur.