Appeal by defendant from judgments entered 21 July 1999 by
Judge Carl L. Tilghman in Pitt County Superior Court. Heard in the
Court of Appeals 19 October 2000.
Attorney General Michael F. Easley, by Assistant Attorney
General M. A. Kelly Chambers, for the State.
Paul Pooley for defendant-appellant.
McGEE, Judge.
Defendant appeals two convictions for possession of cocaine
with intent to sell and deliver and two convictions for sale and
delivery of cocaine. Defendant assigns as error the trial court's
failure to take adequate action when defendant was questioned by
the State about his plea discussions and his habitual offender
status, and the trial court's refusal to instruct the jury on
entrapment. We find no error.
Evidence for the State at trial tended to show that the Pitt
County Sheriff's Office received information in November 1998 from
a confidential informant that defendant was selling narcotics from
his apartment. To ascertain the validity of the informant's
information, the sheriff's office arranged and observed a purchase
of cocaine on 19 November 1998 by the informant from defendant.
The informant then introduced undercover narcotics detective ScottO'Neil (O'Neil) to defendant on 1 December 1998, and O'Neil
purchased cocaine from defendant. O'Neil returned alone to
defendant's apartment and again purchased cocaine on 4 December
1998. O'Neil then told defendant that the sheriff's officers had
two undercover buys from defendant, and defendant agreed to make a
purchase from his supplier in return for the officers' promise to
talk to the district attorney and judge on his behalf.
Defendant was charged with the 1 December and 4 December 1998
drug purchases. Carter Adkins (Adkins), the officer in charge of
the investigation, acknowledged on cross-examination that the
sheriff's office was principally interested in defendant's
supplier, a neighbor of defendant, and that the informant told the
sheriff's officers they had to go through defendant to get to the
supplier. Adkins also acknowledged that, from what he saw,
defendant was selling drugs to get drugs for his personal use, not
for monetary gain.
Defendant testified in his own behalf that he was a heroin
addict but was undergoing treatment, and that although he had an
extensive criminal history due to his efforts to get money for
drugs, he had no convictions for drug dealing. He knew the
informant because he and the informant had been "in rehab together"
and had once been in jail together. When the informant came to
defendant's apartment and asked to buy cocaine, defendant told him
he could not help because he used heroin only. The informant told
defendant that defendant had a neighbor upstairs who sold cocaine.
Defendant promised to check on the neighbor for the informant, and
defendant then purchased cocaine from the neighbor for theinformant. Defendant stated that he had never before gotten
cocaine from anyone for the informant, and that he had not known
the supplier was a drug dealer until the informant told him.
Defendant testified that on 1 December 1998, the informant
called him and said he wanted to buy some cocaine, and that he was
going to bring someone with him. Defendant told the informant that
he did not do that any more, that he was trying to get his act
together, that he had gotten medication and was trying to get help.
The informant asked defendant to make a buy for him one more time.
A few minutes later the informant and O'Neil knocked on defendant's
door. The informant put the money in defendant's hand, and
defendant told the informant and O'Neil to stay there, he would be
back. Defendant then went upstairs and purchased cocaine from the
supplier. Defendant stated that he first had to yell his name
through the door, because the supplier would not sell to anyone he
did not know. Defendant described knocking on the supplier's door,
sticking his hand in with the money, and receiving into his hand
the appropriate amount of cocaine, all without seeing the supplier.
Defendant testified that on 4 December 1998, O'Neil called him
and asked to buy cocaine, telling defendant that he had gotten his
number from the informant. Defendant, not wanting to speak on the
telephone, told O'Neil to come by, that he would see what he could
do. O'Neil knocked on the door, asked to buy cocaine, and gave
defendant money. Defendant then went upstairs and returned with
the cocaine.
Defendant testified that he sold the cocaine only as a favor
to the informant because the informant had not known that defendantwas in rehab, and because the supplier would not have sold directly
to the informant. Defendant stated that he had been convicted for
possession of drugs in the past and had pleaded guilty then because
he had been guilty, but he believed he was not guilty this time.
He declared that he had refused the State's offer of a seventeen
month sentence and would refuse an offer of twelve months as well,
knowing that he risked seven years if found guilty at trial.
Defendant admitted on cross-examination that he gave drugs to
O'Neil, and that he knew what he did was wrong. He acknowledged
that, although the officer had promised to help him get probation,
his criminal record was too extensive to permit probation under the
law, in part due to a history of thefts in support of his heroin
habit. Defendant also acknowledged several convictions in the past
for possession of cocaine but insisted that he had merely possessed
cocaine on prior occasions to trade it for heroin.
Defendant testified on redirect examination that he only
remembered four felony convictions on his criminal record. The
State asked on recross-examination:
Q. Delmus, they told you that you qualified
as a habitual offender?
A. Right.
Q. You do, don't you?
MR. JONES: Your Honor, I object.
The trial court sustained the objection.
I.
[1]Defendant first assigns error to the trial court
permitting the State to elicit evidence from defendant about his
plea discussions and his habitual offender status. Defendantacknowledges that he did not object to the alleged errors at trial
but asserts that the errors were nonetheless preserved for appeal.
"It is well settled that with the exception of
evidence precluded by statute in furtherance
of public policy . . . the failure to object
to the introduction of the evidence is a
waiver of the right to do so, and its
admission, even if incompetent is not a proper
basis for appeal."
State v. Hunter, 297 N.C. 272, 278-79, 254 S.E.2d 521, 525 (1979)
(citation omitted). Defendant must therefore demonstrate that the
trial court erred in introducing evidence precluded by statute
before we may consider his assignments of error on appeal.
A.
Defendant asserts that the State's introduction of evidence of
defendant's plea discussions during the cross-examination of
defendant was in violation of N.C. Gen. Stat. § 8C-1, Rule 410 and
N.C. Gen. Stat. § 15A-1025, and was therefore reversible error
despite defendant's failure to object to the State's questions. As
our Supreme Court has held, "where evidence is rendered incompetent
by statute, it is the duty of the trial judge to exclude it, and
his failure to do so is reversible error, whether objection is
interposed and exception noted or not."
State v. McCall, 289 N.C.
570, 577, 223 S.E.2d 334, 338 (1976) (citation omitted).
In
McCall, our Supreme Court considered a statute which
provided that the defendant's spouse would be a competent witness
for the defense, but that the defendant's failure to examine his
spouse as a witness could not be used to prejudice the defendant.
The defendant in
McCall testified on his own behalf but his wifedid not. The State asked the defendant questions concerning
whether he knew his wife could not testify against him and then
commented in its closing argument to the jury on the defendant's
wife's failure to testify. The Supreme Court held that, even
though the defendant did not object during trial, the trial court
was obliged to act
ex mero motu to correct the error.
N.C. Gen. Stat. § 8C-1, Rule 410 (1999) provides that evidence
of statements made in the course of plea discussions between the
defendant and the State are inadmissible for or against the
defendant.
However, such a statement is admissible
in any proceeding wherein another statement
made in the course of the same plea or plea
discussions has been introduced and the
statement ought in fairness be considered
contemporaneously with it.
Id. Evidence of plea discussions in the present case was first
introduced by defendant during his direct examination, when he
described a plea offer by the State of seventeen months
imprisonment and stated that he would not even have taken twelve
months had it been offered. The State's subsequent questions
during cross-examination concerning the plea discussions were in
part an effort to explain why the State had been unable to offer
defendant a plea bargain with a probationary sentence. Whether the
evidence elicited by the State's questions was admissible under
Rule 410 for the purposes of fairness was a determination for the
trial court, and hence the evidence was not incompetent as a matter
of law. The trial court had no duty to act
ex mero motu under
McCall and defendant's assignment of error under Rule 410 is notpreserved for appeal.
N.C. Gen. Stat. § 15A-1025 (1999) does not include Rule 410's
exception. It states, in its entirety:
The fact that the defendant or his
counsel and the prosecutor engaged in plea
discussions or made a plea arrangement may not
be received in evidence against or in favor of
the defendant in any criminal or civil action
or administrative proceedings.
N.C. Gen. Stat. § 15A-1025 would appear to render incompetent all
evidence elicited from defendant about his plea discussions,
whether introduced by defendant or by the State, and preserve under
McCall defendant's assignment of error despite defendant's failure
to object. In understanding the apparent conflict between N.C.
Gen. Stat. § 8C-1, Rule 410, enacted in 1983, and N.C. Gen. Stat.
§ 15A-1025, last amended in 1975, we note that the commentary to
the later Rule 410 concludes with the statement, "North Carolina
practice in this area is governed in part by G.S. 15A-1025 which is
consistent with this rule. G.S. 15A-1025 should be amended after
Rule 410 is adopted." N.C. Gen. Stat. § 8C-1, Rule 410, Commentary
(1999).
However, we need not determine whether the trial court erred
under N.C. Gen. Stat. § 15A-1025 by failing to act
ex mero motu,
because we hold that defendant waived appellate review of the issue
under
State v. Flowers, 347 N.C. 1, 24, 489 S.E.2d 391, 404-05
(1997),
cert. denied, 522 U.S. 1135, 140 L. Ed. 2d. 150 (1998). In
Flowers, the defendant assigned error to the trial court's
admission of a transcript of the defendant's testimony at a prior
trial, arguing that portions of the transcript dealing with pleadiscussions should have been redacted under N.C. Gen. Stat. § 15A-
1025. Our Supreme Court held that the defendant waived appellate
review when, after the trial court asked the defendant to bring to
the court's attention any specific objections regarding any portion
of the transcript, the defendant neither objected nor requested any
portion of the transcript be omitted. We hold that, in the present
case, defendant similarly waived his right to appellate review by
introducing evidence during his own direct examination of plea
discussions and subsequently failing to object to the State's
eliciting of further evidence during cross-examination.
B.
[2]Defendant asserts that the State's introduction of
evidence of defendant's habitual felon status during his recross-
examination violated N.C. Gen. Stat. § 14-7.5, and that the trial
court's failure to give a curative instruction to the jury after
sustaining defendant's objection was reversible error despite the
failure of defendant to request such an instruction. Applying
McCall to the State's closing argument in
State v. Robinson, 74
N.C. App. 323, 328 S.E.2d 309 (1985), our Court held that the trial
court's sustaining of the defendant's objection alone was
inadequate to remedy the State's improper reference to the
defendant's wife's failure to testify. We held that a curative
instruction was necessary because, when evidence is rendered
incompetent by statute, "'it is the duty of the judge
ex mero motu
to intervene
and promptly instruct the jury'" that the evidence is
incompetent.
Id. at 325, 328 S.E.2d at 311 (quoting
State v.Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976)) (emphasis added).
However, N.C. Gen. Stat. § 14-7.5 (1999), upon which defendant
relies in asserting the evidentiary incompetence of defendant's
habitual felon status, provides only that "[t]he indictment that
the person is an habitual felon shall not be revealed to the
jury[.]" No evidence of any indictment of defendant as an habitual
felon was introduced, nor is there any evidence in the record that
defendant was indicted or sentenced as an habitual felon. Instead,
the State asked defendant only whether he had been told that he
qualified as an "habitual offender."
See, e.g., State v. Aldridge,
67 N.C. App. 655, 659, 314 S.E.2d 139, 142 (1984) (holding that
cross-examination of a defendant which disclosed prior felonies,
but did not disclose an indictment as an habitual felon, did not
violate N.C. Gen. Stat. § 14-7.5). We hold that the State's
question was not prohibited under N.C. Gen. Stat. § 14-7.5, and
therefore that defendant's assignment of error was not preserved
for appellate review under
McCall and
Robinson.
Cf. State v.
Lewis, 32 N.C. App. 298, 300, 231 S.E.2d 693, 694 (1977) (narrowly
interpreting N.C. Gen. Stat. § 15A-1025 to apply only to plea
discussions with prosecutors, not with police officers).
C.
[3]Defendant's assignment of error in the record on appeal to
the admission of evidence of plea discussions and his habitual
offender status concludes: "Alternatively, defendant assigns these
errors as plain error." However, defendant does not raise or argue
the errors as plain error in his brief. We therefore deemdefendant to have waived any assignment of plain error.
See N.C.R.
App. P., Rule 28(a);
State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d
589, 593-94 (1975) ("[I]t is well recognized that assignments of
error not set out in an appellant's brief, and in support of which
no arguments are stated or authority cited, will be deemed
abandoned.").
However, even had defendant's assignment of error been
preserved for appeal, any error would have been harmless. Under
N.C. Gen. Stat. § 15A-1443 (1999), a prejudicial error is one for
which, but for its occurrence, there is a reasonable possibility
that a different result would have been reached at trial.
Defendant admitted to the actions underlying the crimes for which
he was convicted, then introduced evidence of his plea discussions
to support his contention that he did not consider himself guilty
of the crimes with which he was charged, presumably an effort to
indicate his lack of criminal intent. Had the trial court excluded
that testimony of plea discussions, defendant's likelihood of being
convicted would only have
increased.
As to defendant's habitual offender status, the trial court
had instructed the jury at the beginning of the trial to disregard
any question and any answer thereto to which an objection was
sustained; defendant was asked about his habitual offender status
only after he had already been questioned extensively about his
prior felonies; and defendant's objection was sustained. In light
of the overwhelming evidence presented to the trial court of
defendant's guilt, we see no reasonable possibility that anadditional curative instruction following defendant's objection
would have led the jury to a different result.
II.
[4]Defendant's other assignment of error is to the trial
court's refusal to instruct the jury on the defense of entrapment,
a claim by a defendant that, although he committed the acts
underlying a crime, the intent to commit the crime came not from
him but from a law enforcement agent.
See State v. Neville, 302
N.C. 623, 626, 276 S.E.2d 373, 375 (1981).
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. Davis, 126 N.C. App. 415, 417-18, 485 S.E.2d 329, 331
(1997) (citations omitted). However, a defendant must first
present credible evidence tending to support a defense of
entrapment before a trial court may submit the question to a jury.
See State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 749-50
(1978).
Our Court has held that a defendant introduced sufficient
evidence of inducement to justify a jury instruction on entrapment
where the defendant's testimony tended to show that the defendanthad sold drugs to an undercover officer: because the defendant was
in need of a job and believed that the officer had promised him one
in
State v. Blackwell, 67 N.C. App. 432, 313 S.E.2d 797 (1984);
only after the officer and his informant initiated the conversation
about drugs, the officer repeatedly urged the defendant to provide
the drugs, the informant located a person who would sell the drugs
and drove the officer and the defendant to the location, and the
officer then provided the defendant the money to buy the drugs in
State v. Jamerson, 64 N.C. App. 301, 307 S.E.2d 436 (1983); only
after the undercover officer had already provided the defendant
with gifts of beer, food, cigarettes, and money to fix her car and
leaky basement, first raised the subject of a drug purchase, drove
the defendant to each of the drug purchase locations, and provided
the defendant with money to buy the drugs in
State v. Grier, 51
N.C. App. 209, 275 S.E.2d 560 (1981).
We find no similar evidence of inducement by law enforcement
officers in defendant's testimony in the present case. Neither the
informant nor O'Neil provided gifts or made promises before asking
to purchase cocaine from defendant. Also, although defendant
testified that he had been reluctant to sell cocaine to the
informant and O'Neil, his own testimony showed defendant required
little urging before acquiescing to their requests. "That [the
undercover officer] gave defendant the money and asked him to
obtain the cocaine is not evidence of inducement, just an
opportunity to commit the offense."
State v. Martin, 77 N.C. App.
61, 67, 334 S.E.2d 459, 463 (1985),
cert. denied, 317 N.C. 711, 347S.E.2d 47 (1986). As we held in
Martin, selling drugs as
a favor
and taking no profit from the transaction does not entitle a
defendant to an instruction on entrapment.
See also State v.
Booker, 33 N.C. App. 223, 234 S.E.2d 417 (1977). Defendant failed
to introduce sufficient evidence of persuasion by either the
informant or O'Neil to suggest that the criminal design originated
with the law enforcement agents and not with defendant. The trial
court did not err in refusing to instruct the jury on entrapment.
No error.
Judges WALKER and HORTON concur.
*** Converted from WordPerfect ***