STATE OF NORTH CAROLINA
v.
GEORGE LEE BRANHAM, JR.,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, for the State.
Nixon & Associates, by Georgia S. Nixon and Bobby E.
McCroskey, for the defendant-appellant.
HUDSON, Judge.
Defendant appeals his convictions for possession of marijuana
with intent to sell or deliver, possession of LSD with intent to
sell or deliver, and trafficking in LSD (1000 or more dosage
units). The following is a summary of facts pertinent to
defendant's appeal.
At the time of his arrest, defendant was sixteen years old and
lived with his widowed mother. Although the testimony differed as
to who initiated the transactions, the evidence established that
police informant Jason Hunt discussed purchasing a large quantity
(1000 dosage units) of LSD from defendant, and they arranged the
purchase. On 2 February 2000, Hunt came to defendant's house to
purchase the LSD. Defendant gave him two tabs to sample, and Hunt
promised to return for the remaining LSD. Shortly thereafter,Detectives Woodall, Rankin, Westmoreland, and Cates from the
Davidson County Sheriff's department arrived at defendant's home.
The detectives told his mother that defendant had sold drugs to an
undercover police officer, and that they wanted to search her home.
The officers proceeded to search the house, where they found a
large quantity of LSD, as well as small quantities of LSD and
marijuana elsewhere in the house. Officers transported defendant
in handcuffs to the police station where they interrogated him.
After being advised of his juvenile rights, defendant indicated and
had the officers write on the form that he wanted his mother
present. Although she was in the building at the time of the
interrogation, the officers did not bring her to defendant, but
told him he could continue with his statement anyway. Defendant
wrote a statement on the form provided by the officers. The
officers were not satisfied with the statement defendant wrote, so
they destroyed it and instructed him to write another one. Once
the officers were satisfied that the statement was consistent with
what they believed, they had defendant sign it. Defendant was then
charged, indicted, and later tried. We will discuss the evidence
in additional detail as necessary to address the issues.
The jury convicted defendant of possession of marijuana with
intent to sell or deliver, possession of LSD with intent to sell or
deliver, and trafficking in LSD (1000 or more dosage units). The
defense of entrapment was submitted to, and rejected by, the jury.
The trial court sentenced him to a prison term of 6 months minimum
and 8 months maximum for the consolidated possession convictions,and 175 months minimum and 219 months maximum for the trafficking
conviction. Defendant appealed his convictions and noted seven
assignments of error. In his brief, defendant brings forward six
of these. See N.C. R. App. Proc. 28(a) (2001) (assignments of
error not discussed in appellant's brief are deemed abandoned). We
need only address assignments of error 1 and 4, as they are
dispositive.
In addition to the arguments in his brief, defendant has filed
a Motion for Appropriate Relief (“MAR”) in this Court. In his MAR,
defendant alleges that after his convictions in March 2001, a
federal grand jury indicted Detectives Woodall, Rankin, and
Westmoreland and others for conspiracy to distribute in excess of
5 kilograms of cocaine hydrochloride, in excess of 100 kilograms of
marijuana, and unspecified quantities of anabolic steroids and “3,
4 methylenedioxymethamphetimine.” Alleging that this new evidence
affects the credibility of the three investigating officers in his
case, defendant seeks a new trial. In its written response to the
motion, the State concedes that the defendant's allegations were
factual, but maintains that any criminal conduct by the officers
was “irrelevant” to the outcome of this case. Subsequently, the
defendant forwarded additional documents supporting his MAR,
incorporating a superseding indictment of the officers, an
affidavit from the FBI investigator, and further allegations,
including the following:
4. That after the filing of Defendant-
Appellant's Motion for Appropriate
Relief, Woodall pleaded guilty on March
7, 2002 to conspiracy to distributenarcotics, interference with interstate
commerce by threat or violence, and
committing a violent drug crime involving
a machine gun; Westmoreland pleaded
guilty on March 7, 2002 to conspiracy to
distribute narcotics and interference
with interstate commerce by threat or
violence; and Rankin pleaded guilty on
March 7, 2002 to conspiracy to distribute
narcotics and depriving an arrestee of
his civil rights.
5. That Woodall, Westmoreland and Rankin are
currently awaiting sentencing for the
above convictions.
6. That Woodall, Westmoreland and Rankin
have admitted that they had been engaged
in illegal drug activity and federal
civil rights violations, including the
fabrication of search warrants and
evidence, either during the time they
investigated and apprehended Defendant-
Appellant, or during Defendant-
Appellant's trial, or both.
At oral argument, the State did not dispute these assertions.
In his first argument, defendant contends that the trial court
erred in admitting his out-of-court statement to the officers,
because they obtained the statement in violation of his right to
have a parent present pursuant to N.C. Gen. Stat. § 7B-2101(d)
(2001). The provisions of N.C.G.S. § 7B-2101 are as follows:
(a) Any juvenile in custody must be advised
prior to questioning:
(1) That the juvenile has a right to
remain silent;
(2) That any statement the juvenile does
make can be and may be used against
the juvenile;
(3) That the juvenile has a right to
have a parent, guardian, or
custodian present during
questioning; and
(4) That the juvenile has a right to
consult with an attorney and thatone will be appointed for the
juvenile if the juvenile is not
represented and wants
representation.
. . . .
(c) If the juvenile indicates in any manner
and at any stage of questioning pursuant to
this section that the juvenile does not wish
to be questioned further, the officer shall
cease questioning.
(d) Before admitting into evidence any
statement resulting from custodial
interrogation, the court shall find that the
juvenile knowingly, willingly, and
understandingly waived the juvenile's rights.
A juvenile is defined as a “person who has not reached the person's
eighteenth birthday and is not married, emancipated, or a member of
the armed forces of the United States.” N.C. Gen. Stat. § 7B-
101(14) (2001). That defendant was a juvenile is not in dispute.
In State v. Smith, 317 N.C. 100, 106, 343 S.E.2d 518, 521
(1986), aff'd, 321 N.C. 290, 362 S.E.2d 159 (1987), the Court noted
that “[t]he statute makes no provision regarding a resumption of
interrogation once the officer has ceased questioning the juvenile
pursuant to the juvenile's exercise of his right to remain silent
or to consult with an attorney or to have a parent present during
questioning.” The Court applied the rule requiring all
interrogation to cease when an adult defendant requests an
attorney, to a juvenile who requests an attorney, parent, guardian,
or custodian. See id. Once a juvenile defendant has requested the
presence of a parent, or any one of the parties listed in the
statute, defendant may not be interrogated further “until [counsel,
parent, guardian, or custodian] has been made available to him,unless the accused himself initiates further communication,
exchanges, or conversations with the police.” Michigan v. Jackson,
475 U.S. 625, 626, 89 L. Ed. 2d 631, 636 (1986) (internal citations
and quotations omitted); see also State v. Hunt, 64 N.C. App. 81,
86, 306 S.E.2d 846, 850 (holding that juvenile defendant's Miranda
rights were violated when the police continued to interrogate him
after he requested his parents), disc. rev. denied, 309 N.C. 824,
310 S.E.2d 354 (1983).
To determine whether the interrogation has violated
defendant's rights, we review the findings and conclusions of the
trial court. First, the court found, and the evidence supports,
that defendant was handcuffed at his home, and remained handcuffed
while he was transported to the police station. Once the officers
walked defendant into the interrogation room, they shackled him to
the chair with shackles that were also bolted to the wall.
Clearly, he was in custody at the time he made his statement. See
State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 580-81 (1982)
(describing the test for determining whether someone is in police
custody as whether a “reasonable person in the suspect's position
would believe himself to be in custody or that his freedom of
action was deprived in some significant way”).
Among the courts findings and conclusions are the following:
5. That based on controlled substances found
in the residence on 2/2/00 defendant was
placed in custody at his residence and
transported by detectives to the Davidson
County Sheriff's Department for
questioning.
6. That defendant's mother was present atthe residence when the residence was
searched and when defendant was placed in
custody. She voluntarily went to the
Sheriff's Department in a vehicle
separate from defendant.
7. That defendant was taken into the
Sheriff's Department in handcuffs. His
mother was waiting outside when he was
taken into the building and observed
defendant go into the building.
Defendant knew she was present when he
went into the building.
. . . .
9. That defendant's mother was placed in a
room next door to the interview room
where defendant was located and was with
officer [sic] Woodall of the Davidson
County Sheriff's Department.
10. That defendant was read his Miranda
rights by Officer Rankin at approximately
10:15 P.M. The rights form was signed by
defendant and Officer Rankin. The form
did include advising the defendant of his
right to have a parent, guardian, or
custodian present during questioning as
defendant was under age 18 at the time of
questioning. This form was introduced
into evidence as State's Exhibit A.
11. That defendant asked that his mother be
present while he was questioned.
12. That Officer Rankin called Officer
Woodall on a cellular phone to tell him
that defendant wanted his mother to be
present.
13. That Officer Woodall informed defendant's
mother of this request. She told
officers she did not wish to be with her
son while he gave a statement because she
believed he would be “snitching” on
someone else. Officer Woodall wrote out
a statement documenting Ms. Branham's
decision, which was introduced into
evidence as State's Exhibit C.
14. That Officer Woodall informed OfficerRankin that defendant's mother refused to
be present during defendant's questioning
and Officer Rankin[] informed defendant
of this. Officer Rankin then told
defendant “he could still continue if he
chose to”.
15. That defendant then agreed to give a
written statement in the absence of his
mother.
. . . .
17. That defendant initially wrote one
statement, which was later destroyed
because of inaccuracies in the names
defendant gave as his suppliers.
Defendant then wrote a second statement,
which was introduced into evidence as
State's Exhibit B.
. . . .
1. The State has shown by a preponderance of
the evidence that the defendant
knowingly, willingly and understandingly
gave a statement to the Davidson County
Sheriff's Department on February 2, 2000
and that the statement meets the
requirements of [N.C.G.S. §] 7B-2101.
2. WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED, the written statement of the
defendant given to the Davidson County
Sheriff's Department on February 2, 2000
is admissible in evidence at the trial of
this matter. The Court notes the
objection of the defendant to this order
and her allegation of the right to
appeal.
The court made no specific conclusion of law regarding the
significance of defendant's invoking his right to have a parent
present.
Here, defendant was 16 years old at the time of his arrest. Officer Rankin informed defendant of his rights and presented him
with the “Davidson County Sheriff's Department Statement of Rights:
(For Juveniles up to Age 18).” In addition to the usual rights,
the form includes: “[y]ou have a right to have a parent, guardian,
or custodian present during questioning.” Defendant signed the
form next to “I understand these rights.” An additional clause
“(For Juveniles Age 14 to 18)” beneath his signature, states,
I have read the above statement of my rights
and have also had my rights explained to me by
a police officer. Knowing these rights, I do
not want a lawyer, parent, guardian or
custodian present at this time. I waive each
of these rights knowingly and willingly to
answer questions and/or make a statement.
At defendant's insistence, Officer Rankin wrote beside defendant's
signature, “[d]oes want a parent (mother).”
Defendant testified that he requested his mother's presence
during his statement and instructed the officers to write down that
he asked for his mother. The officers neither produced her nor
ceased the questioning. Instead, they told defendant that he could
continue with writing his statement. Both defendant and Officer
Rankin testified that after defendant wrote out his first
statement, Officer Rankin threw it away because it did not name the
supplier that the officers believed was involved. Defendant and
Officer Rankin testified that defendant then wrote out a second
statement, and, in accordance with Officer Rankin's instructions,
he changed the names of the others involved. Defendant said that
the officers told him “if any information [in my statement] didn't
comply with theirs, I would sit there all night,” so he “wrote whatthey wanted to hear because I wanted to get out of there. I was
scared.”
The trial court made findings, based on the testimony of
Officers Woodall and Rankin, that defendant's mother refused to see
him. These and the other findings do not support the conclusion
that the defendant's waiver and statement complied with N.C.G.S. §
7B-2101. Even if we assume that defendant's mother did not want to
be present during defendant's interrogation, she did not have the
ability to, in effect, waive his right to have her present during
interrogation. See In re Ewing, 83 N.C. App. 535, 537, 350 S.E.2d
887, 888 (1986). In Ewing, a decision under the prior juvenile
code, this Court specifically held that “a parent, guardian, or
custodian may not waive any right on behalf of the juvenile.” Id.
(emphasis by the Court). The current juvenile code, N.C.G.S. § 7B-
2101, contains the same language. Defendant testified that after
the officers told him she would not see him, he wrote a statement
because he was told to and did not think that he had a choice in
the matter. There is no evidence that it was defendant who
initiated further communication with the officers.
Because defendant invoked his right to have a parent present
during interrogation, all interrogation should have ceased. Since
it did not, the trial court erred by denying defendant's motion to
suppress his statement, which was elicited in violation of N.C.G.S.
§ 7B-2101. Defendant is entitled to a new trial, and on retrial
the statement must be suppressed.
In his third argument, defendant contends that the trial courterred by failing to dismiss the charges based on the affirmative
defense of entrapment. Defendant argues that but for the repeated
contacts and solicitation made by police agent Jason Hunt, he would
not have possessed so great a quantity of LSD for the purpose of
sale. We disagree.
“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.” State v. Worthington,
84 N.C. App. 150, 157, 352 S.E.2d 695, 700 (1987) (citing State v.
Walker, 295 N.C. 510, 246 S.E.2d 748 (1978)). “The defense is not
available to a defendant who was predisposed to commit the crime
charged absent the inducement of law enforcement officials.” State
v. Davis, 126 N.C. App. 415, 418, 485 S.E.2d 329, 331 (1997).
Defendant bears the burden of proving the affirmative defense of
entrapment. See State v. Braun, 31 N.C. App. 101, 103, 228 S.E.2d
466, 467, disc. rev. denied, 291 N.C. 449, 230 S.E.2d 766 (1976).
“Ordinarily, the issue of whether a defendant has been
entrapped is a question of fact which must be resolved by the jury.
It is only when the undisputed evidence discloses that an accused
was induced to engage in criminal conduct that he was not
predisposed to commit that we can hold as a matter of law that he
was entrapped.” State v. Hageman, 307 N.C. 1, 30, 296 S.E.2d 433,
450 (1982) (internal citations omitted). Entrapment is a complete
defense to the crime charged. If defendant's evidence creates anissue of fact as to entrapment, then the jury must be instructed on
the defense of entrapment. Defendant has the burden of
establishing its elements “to the satisfaction of the jury.” State
v. Goldman, 97 N.C. App. 589, 593, 389 S.E.2d 281, 283 (1990). If
the jury so finds, the trial court is bound to dismiss his charges.
When the evidence of entrapment is undisputed, the trial court may
find that defendant was entrapped as a matter of law.
Defendant contends that the evidence at trial proved
entrapment as a matter of law. The trial court denied defendant's
motion to dismiss based on the affirmative defense of entrapment,
but did instruct the jury on the defense of entrapment. In
reviewing the trial court's denial of the motion to dismiss, we
must first determine whether the evidence was undisputed that
agents of the State persuaded defendant to engage in trafficking
LSD or whether defendant was predisposed to commit the offense.
“Predisposition may be shown by a defendant's ready compliance,
acquiescence in, or willingness to cooperate in the criminal plan
where the police merely afford the defendant an opportunity to
commit the crime.” Hageman, 307 N.C. at 31, 296 S.E.2d at 450.
Second, we must determine whether the evidence supported the
inference that the crime originated with the police and their
agents, and not the defendant.
After careful analysis, we conclude that there was evidence
that Jason Hunt and the officers initiated the offense, but also
evidence from which the jury could have inferred that defendant was
predisposed to sell LSD. Defendant testified that two days beforehe was arrested, Jason Hunt, the older brother of a girl defendant
knew, came over to his house and asked if defendant “could get him
a kilo of Cocaine.” Defendant testified that he was shocked by the
request because, “I never dealt with Cocaine or messed with it at
all. I told him I had no idea where I could get it or anywhere
that anybody ever dealt with it.” Then, Hunt asked defendant if he
could obtain “ten sheets of LSD” for him. Defendant testified that
he had “never dealt with anything . . . bigger than ten hits. And
he just, he kept pushing and pushing and kept asking me and kept
asking me and I told him I didn't know where I could get it from.
I didn't know where I could get that amount.” Defendant testified
that on that occasion and the next day Hunt asked him repeatedly to
get ten sheets of LSD. Defendant stated, “I had no intention of
getting it. I told him that I didn't want to have anything to do
with it.” Hunt persisted until defendant agreed to locate the
quantity of LSD Hunt requested. Defendant offered to ride with
Hunt to the seller, so Hunt could purchase the LSD himself, but
when Hunt offered defendant an additional one-hundred dollars,
defendant finally agreed to make the purchase himself and bring it
to defendant's home. Defendant made the purchase, contacted Hunt
and told him to come pick it up, but Hunt only picked up two hits
of LSD. Minutes later, the police arrived and arrested defendant.
The State presented testimony from Officer Woodall to the
effect that during these events Jason Hunt was working for him as
a paid informant. Woodall did not know what Hunt and defendant
said to each other, but did not dispute that the drug deal at issuehere originated with a telephone call from Hunt. Woodall testified
that he had paid Hunt to act as an informant in drug cases for a
few years. He had worked with Hunt, both before and after Hunt
spent some time in prison. Woodall did not dispute that Hunt
called him to initiate the deal involving defendant, or that the
officers were to provide the money.
However, Hunt claimed that in a telephone call witnessed by
Officer Medlin, defendant offered to sell Hunt as much LSD as he
wanted. Hunt admitted that he called Officer Woodall and told him
that LSD was getting into his sister's hands, and that he (Hunt)
“would like to put a stop to it.”
Q. So you were upset that your sister,
your baby sister, as you put it, had some LSD;
is that correct?
A. Yes, ma'am.
Q. You decided you were going to set up
whoever it was that you perceived put it that
way; isn't that correct?
A. Yes, ma'am.
Woodall then asked Medlin to go with Hunt to make the undercover
buy. Medlin and Hunt gave widely divergent stories of what
occurred next, and Medlin did not corroborate Hunt's testimony
about the telephone call to defendant. Hunt's younger sister,
Summer, testified that she had nothing to do with her older brother
because he lied regularly and had stolen her belongings in the
past. She specifically denied ever purchasing drugs from defendant
or his friend, and stated that her brother lied during his
testimony.
Defendant's testimony that Hunt repeatedly pushed defendant to
obtain drugs for him, that he attempted to get Hunt to make thepurchase himself, and that he had never before been involved in any
drug sales of this quantity may have “been sufficient to raise the
issues of inducement, and lack of predisposition to commit the
offenses, but fell short of compelling a conclusion of entrapment
as a matter of law.” Davis, 126 N.C. App. at 418, 485 S.E.2d at
331. Thus, the issue of entrapment was properly submitted to the
jury. The trial court did not err in denying defendant's motion
for dismissal of the charges based on entrapment as a matter of
law.
Because we find that the officers violated N.C.G.S. § 7B-2101,
we remand for a new trial. And finally, we dismiss as moot
defendant's Motion for Appropriate Relief, without prejudice to his
right to refile in the trial court should he deem it necessary.
New trial.
Judges GREENE and BIGGS concur.
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