State v. Bogle

• Decision Date: 02 March 1989
• Docket Number: No. 307A88,307A88
• Citation: 376 S.E.2d 745,324 N.C. 190
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Marcelle Antonio BOGLE.

Page 745

376 S.E.2d 745

324 N.C. 190

STATE of North Carolina v. Marcelle Antonio BOGLE.

No. 307A88.

Supreme Court of North Carolina.

March 2, 1989.

Lacy H. Thornburg, Atty. Gen. by Howard E. Hill, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

This case presents two questions of first impression to this Court. The first question is whether the trial court erred in giving a jury instruction on willful blindness. We hold that it did and order a new trial. The second question is whether the defendant was entitled to a jury instruction that the evidence of his character trait of being "law-abiding" could be considered as substantive evidence of his innocence. We hold that he was entitled to the instruction.

Since we award defendant a new trial, we relate only the facts necessary for an understanding of the issues on appeal.

On 7 April 1987 at 12:30 p.m. defendant Marcelle Antonio Bogle was driving a pickup truck from Florida to New York on I-95 North. At about 12:30 p.m. a North Carolina State Trooper stopped him for speeding near the Virginia line in Northampton County. Defendant consented to a search of the truck--a 1987 Toyota with a camper top. Packed behind several chairs and some other household goods in the back of the truck, the trooper found five cardboard boxes sealed with duct tape. The boxes contained large plastic garbage bags filled with marijuana, totaling 176 pounds.

Defendant was arrested and subsequently charged with two counts of violating N.C.G.S. § 90-95(h)(1)(b): trafficking in marijuana by possession and trafficking in marijuana by transporting 100 pounds or more but less than 2,000 pounds. At trial defendant entered a plea of not guilty.

To convict defendant of the charged offenses, the State was required to prove that defendant knowingly possessed and transported the marijuana found in the truck. See State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985).

The State's evidence tended to show that the defendant's possession was "knowing." Trooper Harbeson, who had stopped defendant for speeding, testified that after having been advised of his rights, defendant told him that "[t]hey told me to tell the police this was my uncle's truck." When Harbeson asked defendant if he knew what Harbeson had been searching for, defendant replied, "I knew what you were looking for." Defendant also testified, however, that he had not known the marijuana was in the truck. He had been hired by a fellow Jamaican he knew only as "Tony" to drive the truck to New York for $1,000 plus expenses. The truck was registered in the name of a third person. Defendant further testified that he had not known what was in the back of the truck until the trooper unpacked the back, opened the boxes, and discovered the marijuana inside them.

Defendant's uncle, Byrum Townsend, testified that defendant had a good reputation for law-abidingness, for truth and veracity, and for honesty.

At the charge conference, the prosecution requested that the trial court's charge to the jury contain willful blindness instructions based upon United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). ¹ Defendant objected to the proposed instructions on two grounds: (1) because "it does not comport with the law of North Carolina"; and (2) alternatively, because the evidence failed to support a willful blindness instruction.

The trial judge gave a willful blindness instruction on each charge. ² No other instructions were given with respect to the element of knowledge. Before the jury retired, defendant renewed his earlier objections.

I.

Defendant objected to the Jewell instruction, arguing that a willful blindness instruction was improper because the willful blindness doctrine "does not comport with the law of North Carolina." We agree. Such an instruction is error, regardless of the language used.

The willful blindness doctrine permits a jury to find that a defendant has knowledge of the material facts because he has deliberately chosen to remain ignorant of illegal activity that would have been disclosed by further investigation. United States v. Jewell, 532 F.2d 697, 704 (9th Cir.). Willful blindness is inferred when the jury finds (1) the defendant is aware of the high probability of the existence of a fact, (2) but acts with a conscious purpose to avoid the truth, (3) unless he actually believes the fact not to exist. Id. n. 21.

The willful blindness doctrine is primarily recognized by English authorities. Id. at 705 (Kennedy, J. (now a Justice of the United States Supreme Court), dissenting). "A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place.3 " Id. (n. 3: "See, e.g., Bosley v. Davies, [1875] L.R. 1 Q.B. 84"). It has been incorporated by some federal courts as a basis for the inference of "knowledge" when knowledge of the existence of a particular fact is an element of an offense. See, e.g., United States v. Krowen, 809 F.2d 144 (1st Cir.1987).

Our Court of Appeals concluded that the doctrine of willful blindness is consistent with the law of North Carolina. We disagree.

Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind. Jurors may infer knowledge from all the circumstances presented by the evidence. It "may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by [other] circumstantial evidence from which an inference of knowledge might reasonably be drawn." State v. Boone, 310 N.C. 284, 294-95, 311 S.E.2d 552, 559 (1984). Thus, our jury instruction as to circumstances from which knowledge may be inferred is far broader than the limited concept of willful blindness. A willful blindness instruction as given here fails to adequately instruct the jury on the concept of inferred "knowledge" when knowledge is an element of the offense.

A trial judge is required by N.C.G.S. § 15A-1231 and N.C.G.S. § 15A-1232 to instruct the jury on the law arising on the evidence. This includes instruction on the elements of the crime. Knowledge is a substantive feature of the crime charged here. Failure to instruct upon all substantive or material features of the crime charged is error. State v. Loftin, 322 N.C. 375, 368 S.E.2d 613 (1988) (error to fail to instruct on defense of accident); State v. Shaw, 322 N.C. 797, 370 S.E.2d 546 (1988) (no error to fail to instruct on identification where instructions as a whole made clear that the jury must find beyond a reasonable doubt defendant committed the burglary); State v. Fearing, 304 N.C. 471, 284 S.E.2d 487 (1981) (error to fail to instruct that defendant knew the object he hit was a person); State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210 (1980) (prejudicial error to fail to instruct on the lesser included offense of voluntary manslaughter and on the defense of self-defense); State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980) (prejudicial error to fail to instruct that defendant's act caused the death and on mens rea--defendant must intend his act of shooting victim); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969) (prejudicial error to fail to charge on the implications of unconsciousness); State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53 (1950) (prejudicial error to fail to charge on lesser degrees of assault with a deadly weapon with intent to kill).

These cases demonstrate that all substantive and material features of the crime with which a defendant is charged must be addressed in the trial court's instructions to the jury. The instruction given in this case erroneously informs the jury that the evidence showing deliberate avoidance of knowledge is, alone, a sufficient basis for a finding of knowledge. Because the "willful blindness" jury instructions given here failed to adequately address the material element of knowledge, there was error. We hold that the willful blindness instruction is inconsistent with North Carolina law, and thus the trial court erred in giving such an instruction to the jury. ³

Moreover, we are persuaded that there is a reasonable possibility that "but for" the instruction the jury would have reached a different result at trial. The only contested issue in the case was whether the defendant "knew" the marijuana was in the truck. The only instruction given on "knowledge" was the willful blindness instruction. Defendant acknowledged that the circumstances of the case raised an inference that he knew the marijuana was in the truck. However, that inference was contradicted by other evidence presented by defendant which appeared to carry some weight with the jury, as demonstrated by the circumstances of the jury's deliberations. The jury deliberated several hours; it twice asked the judge to be permitted to review defendant's testimony. The jury foreman passed a note to the judge in which he stated that some of the jurors could not come to a decision without this testimony. At the time of the jury's request, the judge polled the jury; the vote was eight to four. These facts raise the reasonable possibility that, had the judge not given the willful blindness instruction, the jury would not have found beyond a reasonable doubt that defendant knew that the marijuana was in the truck and would have reached a different result. N.C.G.S. § 15A-1443(a) (1988). Accordingly, we hold that the error in giving the willful blindness instruction entitles defendant to a new trial. Having decided this issue on this ground, it is unnecessary to consider other grounds argued by defendant on the first assignment of...