State v. Salame, 7318SC713

• Decision Date: 25 November 1974
• Docket Number: No. 7318SC713,7318SC713
• Citation: 24 N.C.App. 1,210 S.E.2d 77
• Parties: STATE of North Carolina v. Antonio SALAME.
• Court: North Carolina Court of Appeals

Page 77

210 S.E.2d 77

24 N.C.App. 1

STATE of North Carolina v. Antonio SALAME.

No. 7318SC713.

Court of Appeals of North Carolina.

Nov. 25, 1974.

Certiorari Denied and Appeal Dismissed by Supreme Court Feb. 4, 1975.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

Smith, Moore, Smith, Schell & Hunter by Jack W. Floyd, Greensboro, for defendant-appellant.

PARKER, Judge.

Prior to arraignment defendant moved to dismiss the charges against him on the grounds that the extent and degree of participation by agents for the State in the commission of the offenses charged resulted in a denial of due process. After conducting a voir dire examination at which Officer Mylan testified concerning the circumstances under which he purchased marijuana and cocaine from defendant and concerning the activities of the police informant, Kenny Lawson, the court denied defendant's motion to dismiss. In this ruling we find no error. We also find no error in the denial of defendant's renewed motion for nonsuit, made at the close of the evidence upon the same grounds of denial of due process.

It is, of course, elementary that the State has no business fostering crime and that it is no part of the duty of law enforcement officers to incite crime for the sole purpose of punishing it. But a 'clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception.' State v. Burnette, 242 N.C. 164, 169, 87 S.E.2d 191, 194 (1955). The determinant is the point of origin of the criminal intent. Entrapment is a defense and prosecution is barred only when it is established that the criminal intent started in the mind of the officer or agent of the State and by him was implanted in the innocent mind of the accused, luring him into commission of an offense which he would not otherwise have committed. In this State the burden is on the defendant to establish the defense of entrapment to the satisfaction of the jury. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Bland, 19 N.C.App. 560, 199 S.E.2d 497 (1973); State v. Williams, 14 N.C.App. 431, 188 S.E.2d 717 (1972).

The fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution, nor will the mere fact of deceit defeat a prosecution, 'for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.' United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366, 376 (1973). In Russell the United States Supreme Court reaffirmed its prior decisions which made defendant's predisposition to commit the crime the central inquiry when the defense of entrapment is raised and a majority of the Court expressly declined to make the defense turn on the type and degree of governmental conduct involved. In that connection the following observation made by Justice Rehnquist in the majority opinion of the Court is pertinent to the case now before us:

'While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (25 A.L.R.2d 1396) (1952), the instant case is distinctly not of that breed.' 411 U.S. 423, 431--432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373 (1973).

In our opinion the evidence in the case now before us furnishes no stronger basis than did the evidence in Russell for invoking due process principles to bar defendant's convictions. Indeed, many of the circumstances of the present case simply do not constitute illegal entrapment.

'Included in the list of circumstances which do not constitute illegal entrapment are: the making of 'buys,' from persons reasonably suspect, by law enforcement officials acting through informers, usually narcotic addicts; acts of enforcement officers posing as addicts in order to procure a purchase from persons who previous investigation indicated were engaged in illegal traffic in narcotics; solicitation by officers of sales in the ordinary way as between buyer and seller; procuring by officers of illegal prescriptions from physicians; purchases by officials solicited by narcotics peddlers; decoy letters, etc.' Annot., Entrapment--Narcotics Offense, 33 A.L.R.2d 883, 885.

Applying the foregoing principles to the present case, it is questionable whether the defense of entrapment arises at all upon the evidence insofar as the charge of illegal distribution of marijuana is concerned. Nothing in the State's evidence suggests that either Officer Mylan or his informer, Lawson, did anything other than inquiring of defendant if he had drugs for sale and thereafter arranging a meeting at which such a sale might be made. Defendant, who had the burden of proof, offered no evidence to the contrary, and his own admission to having made at least one prior illegal sale of marijuana, coupled with the uncontradicted evidence showing that he readily acquiesced in selling a substantial amount of marijuana to Mylan, furnishes strong basis for inferring that the intent to commit the offense was initially his.

Evidence of entrapment in the case of the sale of cocaine is scarcely stronger. The playacting engaged in by Hightower and Mylan did nothing more than to preserve Mylan's role as a person engaged in the drug traffic who was ready and able to purchase the cocaine which, on the previous day, defendant had already expressed a willingness to sell. Defendant's testimony that the cocaine which he sold to Mylan was supplied him by some man who he could not identify but whom he believed to be the same man he had seen in Mylan's car two nights previously, furnishes at most only weak support for the defense theory that some agent for the State sup...