State v. Jamerson

• Decision Date: 04 October 1983
• Docket Number: No. 8224SC1267,8224SC1267
• Citation: 64 N.C.App. 301,307 S.E.2d 436
• Parties: STATE of North Carolina v. Marcus JAMERSON.
• Court: North Carolina Court of Appeals

Page 436

307 S.E.2d 436

64 N.C.App. 301

STATE of North Carolina v. Marcus JAMERSON.

No. 8224SC1267.

Court of Appeals of North Carolina.

Oct. 4, 1983.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Newton G. Pritchett, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant.

WELLS, Judge.

Defendant first argues that the trial court erred in failing to instruct the jury on the defense of entrapment. We agree. In order to establish the defense of entrapment, the defendant must prove "(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) ... 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." State v. Walker, 295 N.C. 510, 246 S.E.2d 748 (1978).

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. Walker, supra, State v. Burnette, 242 N.C. 164, 87 S.E.2d 191 (1955). The instruction should be given even where the state's evidence conflicts with defendant's. Id.

Viewed in the light most favorable to defendant, there was sufficient evidence in the case at bar to require a jury instruction on the entrapment defense. Defendant testified that Greer and Sheets initiated the conversation about drugs, that he made no attempts to find drugs for the men between 8:30 p.m. and 11:30 p.m. on May 4, 1981, and that he agreed to make the purchase only after considerable urging by Sheets, and only after Greer located a person who would sell drugs to defendant. Further, defendant's evidence tended to show that Greer drove defendant to the college campus to buy the drugs, and that Sheets supplied the money for the purchase.

Similar facts have been previously held sufficient to warrant entrapment instructions. See e.g., State v. Grier, 51 N.C.App. 209, 275 S.E.2d 560 (1981) (undercover agent supplied money for drug purchase and drove the defendant to home of supplier, after ingratiating himself with the defendant by making frequent visits and giving the defendant presents); State v. Hartman, 49 N.C.App. 83, 270 S.E.2d 609 (1980) (defendant promised a job if he would sell LSD that afternoon); State v. Braun, 31 N.C.App. 101, 228 S.E.2d 466, app. dismissed, 291 N.C. 449, 230 S.E.2d 766 (1976) (agent picked up the defendant who was hitch-hiking and when the defendant stated he was high, he was asked if he would sell drugs. The agent called the next day and drove the defendant to the home of a third person identified by the defendant, where marijuana was purchased). But see State v. Booker, 33 N.C.App. 223, 234 S.E.2d 417 (1977) (no jury instruction required where only evidence was that agent asked the defendant for drugs, defendant at first refused and then later agreed to obtain drugs when agent stated he was a junkie and needed drugs badly. Agent supplied money for the purchase and lent car to the defendant.)

Defendant next argues that the dual indictments, charging him with possession of cocaine with intent to sell or deliver and with actual sale or delivery of the same drugs, violated the constitutional bar against double jeopardy. This argument is controlled by State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973). In that case, our Supreme Court held that the former jeopardy rule does not bar convictions of a defendant for both possession of heroin and sale of the same contraband. Defendant argues, however, that Cameron and its progeny do not decide whether double jeopardy is violated where the only act of possession is that required to complete the act of selling the drug.

Defendant's argument ignores both the language of Cameron, and a number of later cases in which the defendants were convicted of possession and sale of the same drug under facts similar to the case at bar. The Cameron court addressed the argument that possession of a drug should not be a separate offense when it occurs only as part of the act of selling the same contraband as follows:

Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes .... The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either.

citing State v. Chavis...