State v. Luster, 23A82

• Decision Date: 05 October 1982
• Docket Number: No. 23A82,23A82
• Citation: 295 S.E.2d 421,306 N.C. 566
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Sherwin Rene LUSTER.

Page 421

295 S.E.2d 421

306 N.C. 566

STATE of North Carolina v. Sherwin Rene LUSTER.

No. 23A82.

Supreme Court of North Carolina.

Oct. 5, 1982.

Rufus L. Edmisten, Atty. Gen. by Sarah C. Young, Asst. Atty. Gen., Raleigh, for the State.

Charles H. Hobgood, Durham, for defendant-appellant.

MEYER, Justice.

Both of the cases before us involve the delivery and sale of the particular stolen automobile to a police-organized "sting" or undercover fencing operation. The issue before this Court in each case concerns the defense of entrapment--in Case No. 79 CRS 28603, whether the trial judge, though he gave an instruction on entrapment, erred in not instructing on entrapment by an agent, and in Case No. 79 CRS 22551, whether the trial judge erred in refusing to give an instruction on the general defense of entrapment. We find no error and affirm the decision of the Court of Appeals.

The main question presented by these two appeals is whether entrapment can be effected through an unwitting agent, or otherwise stated, whether the defense of entrapment is available to a defendant where an unwitting third party, presented with an opportunity to commit the offense by an undercover police officer, then induces defendant's participation in the offense without specific direction of the officer. We hold that under such circumstances the defense of entrapment is not available.

In the interest of clarity we will state the summary of the pertinent facts in each case separately. However, we will not repeat in the second summary those facts not necessary to an understanding of the difference in the issue presented in that case.

Case No. 79 CRS 28603

In Case No. 79 CRS 28603 the State presented evidence that officers of the Durham, North Carolina Public Safety Department, and agents of the State Bureau of Investigation, working under cover, operated a sting operation in a building located at 624 East Geer Street in the city of Durham under the name of Part Time Help Limited. The officers used this part-time employment agency as a front for the purpose of buying stolen property. The operation began in November 1978 and ran through August 1979. Part Time Help Limited was listed in the telephone book and ran one advertisement in the newspaper announcing that they would offer people part-time jobs. Approximately seventy people utilized "the services" of Part Time Help Limited, although not that many were actually arrested. There were some legitimate inquiries for part-time jobs. The obvious purpose of the operation was to combat theft and theft rings and the fencing of stolen goods in and around Durham County. The undercover officers let it be known that they would buy stolen property. As the sale and purchase of the property took place, the transactions between the sellers and the undercover agents were videotaped by a hidden camera. Officer D. L. Raney of the Durham Public Safety Department testified that he was one of the undercover agents involved and that on 22 May 1979 at approximately 3:29 p. m., the defendant Sherwin Rene Luster and another man Ricky Lamont Burnette came into the building. The defendant Luster handed him a set of keys and Officer Raney went outside to look at the car that defendant had brought. As Officer Raney went outside to look over the car, the defendant and Burnette remained inside the building with an undercover agent of the SBI, Bruce E. Black. Defendant was later charged with the possession of the car, a 1978 Dodge.

When Officer Raney returned to the building, the defendant stated that he could get new Mercedes-Benz and Cadillac automobiles. The defendant agreed to accept $400.00 for the Dodge. Officer Raney laid that amount of money on the counter and the defendant took it. The defendant did not tell the undercover officers specifically how he could get the Mercedes-Benz and Cadillac automobiles but said that he had someone working with him and he could get them.

The defendant did not say how he obtained the 1978 Dodge automobile nor was he asked by the officers.

Officer Raney testified that Burnette had been in quite a few times before and was considered a "regular." Burnette himself had previously brought cars to sell to the undercover officers. Raney testified that as part of the operation the officers encouraged people who came into the store to get other people to bring materials to them. He further testified that when they had recorded a person on tape enough times, they did not exactly discourage him from coming back with the same items, but they did not offer him as much money on succeeding purchases. The officers would continue to suggest to these people that they bring other people around. In effect, the officers told people that they wanted only quality merchandise but could not pay a great deal of money for it. They did not actually say that they would buy "stolen property."

Officer R. D. Simmons of the Durham Police Department was working as the video officer at the time the officers filmed the foregoing transaction with the defendant. In substance his testimony paralleled that of Officer Raney.

After proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape, it was admitted into evidence and shown to the jury over defendant's objection. Subsequently, defendant made a motion to view the videotape and have a court reporter transcribe the same. Upon proper order a court reporter, who was not present at the trial, viewed the videotape and prepared a transcript of the same which is set out in the record on appeal.

In addition to verifying Officer Raney's testimony, Officer Black testified that the defendant asked if the undercover agents could handle several new cars, indicating that he had access to new Dodges, Cordobas and Challengers, and that he had people working with him on the inside at the Dodge dealership. According to Officer Black, the defendant said that when he got a car, he didn't want to keep it too long and wanted to get it to Part Time as soon as he could.

Officer Black also testified on cross-examination that it was part of his work to get as many people involved in the fencing operation as possible. He told people who brought in property that if they knew others who had any merchandise for sale, to come in and the undercover agents would discuss purchasing the merchandise from them. Officer Black testified that he told this to Ricky Burnette.

Burnette testified that on several occasions he had sold various types of goods including five cars to the undercover agents. All of this had occurred before he met the defendant. He further testified that after a while the undercover officers discouraged him from doing further business and wanted him to bring someone else down with the cars. He made approximately fifteen to eighteen trips over a long period of time and brought five or six different people. Burnette further testified that on 22 May 1979 he went over to the defendant's house and told the defendant that he needed someone to drive a car from Coggin Pontiac, offering to give him a percentage of any money he received for the car. The defendant went to Coggin Pontiac with Burnette, who entered through the fence, got the car and drove it away. The defendant then drove the car to Part Time Help Limited. Burnette told the defendant that the people at Part Time Help Limited would not accept anything from him (Burnette) and asked the defendant to take the keys in and transact the deal for him. He further testified that he told the defendant how to talk to the people to get along with them.

The defendant testified that he had been convicted of misdemeanor breaking and entering when he was sixteen or seventeen but that he had not been in any trouble since then and he was now twenty-three years of age. He testified that he had been out of work some five or six weeks and that Burnette told him that he was working for Part Time Help Limited when he asked the defendant to help him. Defendant testified that he went to Coggin Pontiac with Burnette and saw Burnette go through the fence and get the car. He followed Burnette to Chapel Hill Boulevard where they switched cars. Defendant then drove the car to Part Time Help Limited. He denied knowing that the car was stolen.

At the trial of this Case No. 79 CRS 28603 the defendant requested and the trial judge instructed the jury on the defense of entrapment. However, in instructing the jury initially, and later in instructing the jury on entrapment after the jury had asked the trial judge to repeat the definition of entrapment, the court instructed that the inducement had to come from one or some of the two police officers and two SBI agents who testified. The trial judge did not instruct that the inducement could come through someone acting as an agent for the officers (here Burnette). This the defendant cites as prejudicial error.

The defendant's theory of entrapment here is that the police induced an unwitting third party, Ricky Burnette, into becoming their agent for the purpose of persuading others to bring them stolen property and that Burnette persuaded the defendant, who was not otherwise so inclined, into helping him steal property. The defendant contends that his evidence showed that he was not otherwise disposed to commit the crime; that he was induced by Burnette to become involved; that Burnette through the financial manipulation of the police, became and was acting, although perhaps unwittingly, as an agent of the police; and that this evidence called for an instruction on the defense of entrapment by an agent. The defendant does not contend that entrapment must be found as a matter of law, but merely that his evidence was sufficient to justify the entrapment by agent charge.

In determining whether a defendant is entitled to raise the defense of entrapment, this Court employs a two-step analysis:

'Whether the defendant was entitled to...