Appeal by defendant from judgments entered 7 December 2000 by
Judge Peter M. McHugh in Superior Court, Rockingham County. Heard
in the Court of Appeals 13 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Margaret Creasy Ciardella for defendant-appellant.
McGEE, Judge.
Allie Franklin Thomas, Jr. (defendant) was indicted on 3 April
2000 on two counts of solicitation to commit first degree murder of
his former wife, Alice Thomas (now Decker), in violation of N.C.
Gen. Stat. § 14-2.6.
Evidence for the State at trial tended to show that defendant
was upset when he learned in January 2000 that his former wife was
to be remarried. William Thompson (Thompson), a friend of
defendant, testified that defendant repeatedly told him that he
wanted to have his former wife murdered. Defendant suggested to
Thompson that Thompson call in a favor from acquaintances in
Florida "for the purpose of asking one of them to kill [defendant's
former wife]." Defendant provided Thompson with pictures of hisformer wife and her fiancé, their addresses, a description of and
directions to her residence, and three hundred dollars in cash.
Defendant gave Thompson a list of dates when defendant did not want
his former wife killed because he would not have an alibi on those
dates. Thompson testified that defendant gave him a picture of a
woman who resembled defendant's former wife and who had a similar
name to ensure this other woman was "not targeted by a hit man."
Defendant gave Thompson a description of his former wife's car and
the car's license tag number. Thompson testified that he never
suggested to defendant the idea that defendant's former wife be
murdered.
Tom Saunders (Saunders), a detective with the Reidsville
Police Department, testified that he had known Thompson since the
1980's. Thompson called Saunders at his office in February 2000
and said he wanted to talk to Saunders regarding someone who had
approached him about trying to find a hired killer to have a former
wife killed. Saunders met with Thompson on 19 February 2000 and
they talked about Thompson's desire to get defendant some help
since defendant was suicidal and taking medication for depression.
Thompson told Saunders that he had lived in an upstairs apartment
above defendant's residence for about six months. Saunders
testified Thompson told him that defendant had asked Thompson
several times if Thompson could find someone to kill defendant's
former wife, who was going to be remarried on 18 March 2000.
Saunders testified Thompson wore a body wire several times for
meetings with defendant. Saunders said Thompson turned over to hima packet of information that had been given to him by defendant on
24 February 2000. Included in the packet was a newspaper clipping
of an advertisement for a realty company with a picture of a woman
named Alene Thomas, who worked for the realty company. The
newspaper clipping was marked "no" with a handwritten notation in
red ink. Also in the packet was a list of dates from 26 February
to 18 March with the name of Alice R. Thomas and her address on the
reverse side, along with vehicle descriptions and tag numbers of
defendant's former wife's car and her fiancé's car. Defendant also
gave Thompson a photograph of his former wife, which Thompson gave
to Saunders. Thompson told Saunders that defendant wanted Thompson
to take the information packet and forward it to a hired hit man if
Thompson could locate one.
Saunders testified he assisted in the arrest of defendant on
2 March 2000, and that he, along with SBI agent Christopher
Battista (Battista), interviewed defendant at the Reidsville Police
Department. When Battista left the interview room, defendant told
Saunders that, "I did things like I just wanted to get caught."
When Battista returned, defendant said he had "just volunteered a
statement to [Saunders]. I'm caught. I'm glad it's over. I owe
you that much. When I was leaving today, I thought about going
back to that room and calling things off but I didn't."
SBI agents Michael Wilson (Wilson) and Battista testified
that Wilson posed as a member of a crime family from Florida who
was to be a hit man to murder defendant's former wife. Wilson
agreed to meet with defendant at a Ramada Inn in Reidsville on 2March 2000. Thompson entered the room first and told Wilson that
defendant was nervous and wanted him to check out what was
happening before defendant entered. Thompson told Wilson that
defendant had given him two hundred dollars for Wilson's expenses
and Wilson told Thompson to put the money on a table in plain view.
When defendant came into the room, Wilson asked Thompson to leave.
Wilson testified he took a photograph of defendant's former
wife from an envelope and asked defendant, "Is this what you want
done?" and defendant said, "Yes." Wilson testified that he asked
defendant if defendant wanted him "'to do,' meaning 'kill,'" the
boyfriend of his former wife. Defendant told Wilson, "Only if you
have to." Wilson asked defendant if he wanted anything special
done to his former wife or if defendant wanted Wilson to bring him
anything back and defendant answered "no." Defendant said he could
not get a current photograph of his former wife but he had a
picture of another woman with a similar name and similar appearance
to his former wife who worked at the same location as defendant's
former wife. Wilson told defendant that he had already received a
picture of the other woman. Wilson testified he asked defendant if
defendant wanted his former wife to disappear and defendant said,
"That would be fine."
Wilson testified that the meeting between him and defendant
was videotaped by a hidden camera and microphone placed in the
motel room. The videotape and a transcript of the videotaped
discussion between Wilson and defendant were admitted into evidence
and shown to the jury. Defendant moved to dismiss the charges against him at the
close of the State's evidence. The trial court reserved ruling on
defendant's motion.
Defendant presented the testimony of four witnesses who each
testified they had known Thompson for several years and that in
their opinion Thompson was not truthful. Defendant's family
members and friends testified that defendant had had mental health
problems for twenty years and that they were surprised that
defendant had been charged with solicitation to murder his former
wife.
At the close of all the evidence defendant again moved to
dismiss the charges against him, which the trial court denied. The
jury found defendant guilty of soliciting Wilson to commit murder
and guilty of soliciting Thompson to commit murder. On 7 December
2000, the trial court sentenced defendant to 84-110 months in
prison for each count with the sentences to run concurrently.
Defendant appeals.
In the record on appeal, defendant raises ten assignments of
error; however, in his brief to our Court, he argues only three
assignments of error. The assignments of error not argued in
defendant's brief are deemed abandoned. N.C.R. App. P. 28(a)
("Questions raised by assignments of error in appeals from trial
tribunals but not then presented and discussed in a party's brief,
are deemed abandoned.").
I.
Defendant first argues the trial court erred in itsinstructions to the jury on entrapment because the instructions
lessened the State's burden of proof.
We first note that defendant did not object to the jury
instructions at trial. We must review defendant's argument on this
issue for plain error. N.C.R. App. P. 10(c)(4) ("In criminal
cases, a question which was not preserved by objection noted at
trial and which is not deemed preserved by rule or law without any
such action, nevertheless may be made the basis of an assignment of
error where the judicial action questioned is specifically and
distinctly contended to amount to plain error."). Plain error is
error "so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached."
State v. Bagley, 321 N.C.
201, 213, 362 S.E.2d 244, 251 (1987),
cert. denied, 485 U.S. 1036,
99 L. Ed. 2d 912 (1988). Issues not properly preserved for appeal
may be reviewed on appeal for plain error "when . . . the issue
involves either errors in the trial judge's instructions to the
jury or rulings on the admissibility of evidence."
State v.
Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997)
(citations omitted),
cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873
(1998).
A defendant has the burden of proving the affirmative defense
of entrapment.
State v. Braun, 31 N.C. App. 101, 103, 228 S.E.2d
466, 467,
appeal dismissed and disc. review denied, 291 N.C. 449,
230 S.E.2d 766 (1976). Whether to submit the defense of entrapment
to the jury is to be determined based upon the facts andcircumstances of each case.
State v. Walker, 295 N.C. 510, 513,
246 S.E.2d 748, 749 (1978). However, "'[b]efore a Trial Court can
submit such a defense to the jury there must be some credible
evidence tending to support the defendant's contention that he was
a victim of entrapment, as that term is known to the law.'"
Id.
(quoting
State v. Burnette, 242 N.C. 164, 173, 87 S.E.2d 191, 197
(1955)).
The defense of entrapment consists of two
elements: (1) acts of persuasion, trickery or
fraud carried out by law enforcement officers
or their agents to induce a defendant to
commit a crime, (2) when the criminal design
originated in the minds of the government
officials, rather than with the innocent
defendant, such that the crime is the product
of the creative activity of the law
enforcement authorities.
Id. at 513, 246 S.E.2d at 749-50 (citing
Sherman v. United States,
356 U.S. 369, 2 L. Ed. 2d 848 (1958);
State v. Stanley, 288 N.C.
19, 215 S.E.2d 589 (1975);
State v. Burnette, 242 N.C. 164, 87
S.E.2d 191 (1955)).
North Carolina follows the majority rule of entrapment "which
precludes the assertion of the defense of entrapment when the
defendant denies one of the essential elements of the offense
charged."
State v. Neville, 302 N.C. 623, 625, 276 S.E.2d 373, 374
(1981). However, "[a] defendant can deny intent and still claim
entrapment because 'the defense of entrapment itself is an
assertion that it was the will of the government, and not of the
defendant, which spawned the commission of the offense.'"
State v.
Sanders, 95 N.C. App. 56, 61, 381 S.E.2d 827, 830 (1989) (quoting
Neville, 302 N.C. at 626, 276 S.E.2d at 375). Therefore, "adefendant who denies an essential element which deals with intent
but who admits committing the acts underlying the offense with
which he is charged may employ an entrapment defense."
Id.
In the case before us, defense counsel requested a jury
instruction on entrapment during the charge conference, which the
trial court allowed. The trial court noted that, although
defendant did not introduce evidence of entrapment at trial, the
trial court would allow an instruction on entrapment because
defense counsel had referred to the defense of entrapment during
opening statements and cross-examination of witnesses. The trial
court added that it would give "additional instructions in the
context of instructing the jury on what is and what is not
entrapment." Defendant did not object, nor did he object when the
trial court instructed the jury. The trial court instructed the
jury in part as follows:
Under our system of justice, when a
person who has been accused of a crime pleads
"not guilty," that person is not required to
prove that he is innocent. The accused is
presumed to be innocent. The State must prove
to you that the defendant is guilty. The
State must prove to you that the defendant is
guilty beyond a reasonable doubt.
. . .
In this case the defendant . . . contends
the defense of entrapment. . . . Entrapment
under our law is a complete defense to the
crime charged. . . .
For you to find that the defendant was
entrapped in these cases, you must be
satisfied of the following three things:
First, you must be satisfied that the
criminal intent to solicit the murder of[defendant's former wife] did not originate in
the mind of the defendant.
Second, the defendant must prove to you
that he was induced to commit the act of
solicitation to murder by another person.
Now, the law recognizes, . . . that
merely providing an opportunity to commit a
crime by a person would not be sufficient
inducement to constitute entrapment. In order
for there to be entrapment in any criminal
case it must appear that the person used
persuasion or trickery to cause the defendant
to commit this crime which he was not
otherwise willing to commit.
The third thing which the defendant must
prove to you to your satisfaction in order to
be entitled to the defense of entrapment is
that the other person acted on behalf of a
governmental agency.
. . .
Furthermore, North Carolina has set up as
the following rules with regard to the issue
of entrapment. The North Carolina Supreme
Court has stated that North Carolina follows
the majority rule which precludes the
assertion of the defense of entrapment when
the defendant denies one of the essential
elements of the offense charged.
The law in North Carolina further
recognizes that the rational[e] of this rule
is that the law will not constitute as a claim
that the defendant did not commit the offense
and a claim that he was entrapped into the
commission of the very offense which he denies
committing.
The law recognizes in North Carolina that it
is inconsistent for the defendant to assert on
the one hand that he did not do certain acts
and then to insist that the government induced
him to do the very acts which he disavows
doing.
Defendant argues that the jury instructions lessened the
State's burden of proof because the instructions "negateddefendant's pleas of not guilty and violate[d] [his] constitutional
right to the presumption of innocence." Defendant further argues
that the trial court's error was prejudicial because "for the jury
to even consider the entrapment defense as instructed . . . the
jury must believe defendant
admitted the charges of solicitation to
commit murder." According to defendant, because the jury
instruction lessened the State's burden of proving defendant
solicited Wilson, "it is reasonable to believe that the erroneous
instructions caused the jury to also believe that defendant
admitted the charge of soliciting . . . Thompson to commit murder."
We disagree. In this case, defendant presented virtually no
evidence of entrapment. The only persuasion, trickery or fraud
defendant has shown is that Wilson was in fact not a drug dealer
from Florida who was going to act as defendant's hit man.
Additionally, the evidence introduced at trial consistently
indicates that the idea to murder defendant's former wife
originated with defendant and it was defendant who came up with the
idea of using Thompson's acquaintance from Florida as the hit man.
To the extent that the jury instructions on entrapment were
required at all, the trial court properly summarized the law of
entrapment in North Carolina. Defendant has failed to show the
trial court erred in its instructions. Defendant's eighth
assignment of error is overruled.
II.
Defendant next contends the trial court erred in its
instructions to the jury as to whether defendant solicited Thompsonto commit murder because the jury instructions lessened the State's
burden of proving the offense beyond a reasonable doubt. Defendant
did not object to the trial court's instructions to the jury on
this issue; therefore, we review defendant's arguments for plain
error.
Solicitation of another to commit a felony is a crime in North
Carolina "even though the solicitation is of no effect and the
crime solicited is never committed."
State v. Furr, 292 N.C. 711,
720, 235 S.E.2d 193, 199,
cert. denied, 434 U.S. 924, 54 L. Ed. 2d
281 (1977). Solicitation is a specific intent crime and to prove
a defendant guilty of solicitation to commit murder, the State must
prove beyond a reasonable doubt (1) that the defendant
"counsel[ed], entic[ed], or induc[ed]" another person to murder the
victim and (2) that the defendant intended that the person he
solicited murder the victim.
State v. Davis, 110 N.C. App. 272,
275, 429 S.E.2d 403, 404-05,
disc. review denied, 334 N.C. 436, 433
S.E.2d 180 (1993).
See also Furr, 292 N.C. at 720, 235 S.E.2d at
199.
The trial court instructed the jury that defendant was accused
of soliciting Thompson for the murder of defendant's former wife
and in order to prove the offense,
the State must prove two things . . . beyond a
reasonable doubt:
The law recognizes in North Carolina that
it is inconsistent for the defendant to assert
on the one hand that he did not do certain
acts and then to insist that the government
induced him to do the very acts which he
disavows doing.
The second thing which the State must
prove to you beyond a reasonable doubt before
you can find the defendant guilty in this case
is that the defendant intended that the person
he solicited murdered the victim or that the
defendant intended that the person solicited
arranged with another for the murder of the
victim.
Under the law of North Carolina, . . . a
request by a defendant to one person whom I'll
refer to as person (A), that (A) find the
second person (B), to act as the so-called
"hit man" to murder a victim constitutes the
crime of solicitation to commit murder with
regard to person (A).
. . .
[I]n that action if you do find from the
evidence beyond a reasonable doubt that one or
about the dates alleged, . . . the defendant
solicited [] Thompson to murder [defendant's
former wife], or that the defendant solicited
[] Thompson to arrange the murder of the
victim by another, the defendant intending
that the murder be committed, then it would be
your duty to return a verdict of guilty as
charged of solicitation to commit murder [in
this action].
Defendant first argues the trial court's instructions to the
jury did not correspond with the evidence at trial because the
evidence shows that "at no time did defendant want [] Thompson to
kill" defendant's former wife. Our Supreme Court rejected this
argument in
State v. Furr where
the defendant argued on appeal that
the trial court failed to prove solicitation because the evidence
showed only that the defendant had requested that a man named
Huneycutt find someone to murder the intended victims, not that
defendant requested that Huneycutt himself commit the crime.
Furr,
292 N.C. at 720-21,
235 S.E.2d at 199. The Court found this to be
a distinction without a difference stating that "[w]hetherdefendant solicited Huneycutt to commit the murder himself or to
find another to perpetrate the crime is thus of no consequence;
either act is a crime in this state."
Id. at 721, 235 S.E.2d at
199. The
Furr court explained that
"'[i]n the usual solicitation case, it is the
solicitor's intention that the criminal result
be directly brought about by the person he has
solicited; that is, it is his intention that
the crime be committed and that the other
commit it as a principal in the first degree,
as where A asks B to kill C. However, it
would seem sufficient that A requested B to
get involved in the scheme to kill C in any
way which would establish B's complicity in
the killing of C were that to occur. Thus it
would be criminal for one person to solicit
another to in turn solicit a third party, to
solicit another to join a conspiracy, or to
solicit another to aid and abet the commission
of a crime.'"
Id. at 720-21, 235 S.E.2d at 199 (quoting W. LaFave and A. Scott,
Criminal Law, § 58 at 419 (1972)). In this case, the crime of
solicitation to commit murder occurred whether defendant solicited
Thompson to commit murder, or whether defendant solicited Thompson
to find another person to perpetrate the murder. The trial court
properly instructed the jury on this issue.
Defendant also argues that the trial court's instructions to
the jury were erroneous because they vary from the indictment which
stated that defendant "unlawfully, willfully and feloniously did
SOLICIT [] THOMPSON TO COMMIT THE FELONY OF FIRST DEGREE MURDER
. . . AGAINST ALICE THOMAS." However,
[n]ot every variance between the indictment
and the proof is a material variance. The
gist of this crime is the solicitation itself
and not the nature of the crime
solicited. . . . In this regard an indictmentfor soliciting to commit a felony is analogous
to one for conspiracy, in which it is
sufficient to allege generally the object of
the conspiracy. Thus an indictment alleging
defendant solicited another to murder is
sufficient to take a case to the jury upon
proof of solicitation to find someone else to
commit murder, at least where there is nothing
to indicate defendant insisted that someone
other than the solicitee commit the
substantive crime which is his object.
Id. at 721-22, 235 S.E.2d at 200 (internal citations omitted).
The evidence at trial showed that the object of the crime in
this case was the murder of defendant's former wife. The
indictment alleging that defendant solicited Thompson to murder
defendant's former wife was sufficient to take the case to the jury
because although the evidence at trial showed that defendant
solicited Thompson to hire a hit man to murder his former wife, the
indictment properly alleged the murder of defendant's former wife
as the object of the crime. The trial court did not err in its
instructions to the jury on this issue. Defendant's ninth
assignment of error is overruled.
III.
By his final argument, defendant contends the trial court
erred in denying his motion to dismiss the charges against him. In
ruling on a motion to dismiss for insufficiency of the evidence,
the trial court must determine "whether there is substantial
evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense."
State v.
Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial
evidence is evidence "which a reasonable juror would considersufficient to support the conclusion that each essential element of
the crime exists."
State v. Baldwin, 141 N.C. App. 596, 604, 540
S.E.2d 815, 821 (2000). The evidence is to be viewed in the light
most favorable to the State, and the State is entitled to all
reasonable inferences to be drawn therefrom.
State v. Duncan, 75
N.C. App. 38, 47, 330 S.E.2d 481, 488,
disc. review denied, 314
N.C. 544, 335 S.E.2d 317 (1985).
Defendant argues the evidence presented at trial was
insufficient to convict defendant on the charge that he solicited
Thompson to murder defendant's former wife because no evidence was
presented at trial that defendant wanted Thompson himself to commit
the murder. As noted above, whether defendant solicited Thompson
to commit the murder himself or to find another person to
perpetrate the crime is of no consequence; either act constitutes
the crime of solicitation.
See Furr, 292 N.C. at 721, 235 S.E.2d
at 199 (1977).
Substantial evidence was admitted at trial to support a
conclusion that defendant committed the crime of solicitation as to
Thompson. Thompson testified that defendant repeatedly told him
that defendant wanted to have his former wife murdered. All the
evidence shows that defendant himself formed the intent to have his
former wife murdered. Defendant suggested to Thompson that
Thompson call in a favor from acquaintances in Florida "for the
purpose of asking one of them to kill" defendant's former wife.
The evidence also shows that defendant provided Thompson with
pictures of his former wife and her fiancé, their addresses, adescription of and directions to her residence, as well as three
hundred dollars in cash. Defendant gave Thompson a list of dates
when defendant did not want his former wife killed because
defendant would not have an alibi on those dates. The evidence
further shows that defendant gave Thompson a picture of a woman who
resembled his former wife and who had a similar name to ensure this
other woman was "not targeted by a hit man." Additionally,
defendant gave Thompson a description of his former wife's car and
the car's license tag number. Thompson testified that he never
suggested to defendant the idea that defendant's former wife be
murdered. From this evidence, a reasonable juror could determine
that the essential elements of solicitation exist. The trial court
did not err in denying defendant's motion to dismiss on this issue.
Defendant also argues the evidence was insufficient to show
defendant willfully solicited Wilson to murder defendant's former
wife. Defendant contends that he "was entrapped to solicit []
Wilson to commit first-degree murder in that defendant did not
possess the requisite intent." We disagree. There was sufficient
evidence introduced at trial to show that defendant solicited
Wilson. As stated in section I, the only evidence of persuasion,
trickery or fraud carried out by law enforcement in this case was
that of Wilson pretending to be a drug dealer from Florida who was
going to act as a hit man. Further, as stated above, all the
evidence shows that defendant himself formed the intent to have his
former wife murdered. There is no evidence that Wilson ever
suggested to defendant that defendant should have his former wifemurdered. Sufficient evidence was presented at trial from which a
reasonable juror could find defendant solicited Wilson to commit
murder and that defendant himself formed the intent that the crime
be committed. The trial court did not err in denying defendant's
motion to dismiss. Defendant's seventh assignment of error is
overruled.
No error.
Chief Judge EAGLES and Judge TYSON concur.
Report per Rule 30(e).
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