State v. Stanley

• Citation: 215 S.E.2d 589,288 N.C. 19
• Decision Date: 26 June 1975
• Docket Number: No. 113,113
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Frederick STANLEY.

Page 589

215 S.E.2d 589

288 N.C. 19

STATE of North Carolina v. Frederick STANLEY.

No. 113.

Supreme Court of North Carolina.

June 26, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. William F. O'Connell and William Woodward Webb, Raleigh, for the State.

Harold P. Laing, Wilmington, for defendant-appellant.

BRANCH, Justice.

At the threshold of this appeal we are confronted with the question of whether any assignments of error are properly before us for review. Justice Lake clearly stated one of the rules which governs decision of this question in State v. Williams, 274 N.C. 328, 163 S.E.2d 353:

When this Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by G.S. § 7A--31, grants certiorari to review the decision of the Court of Appeals, only the decision of that Court is before us for review. We inquire into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Our inquiry is restricted to rulings of the Court of Appeals which are assigned as error in the petition for certiorari and which are preserved by arguments or the citation of authorities with reference thereto in the brief filed by the petitioner in this Court, except in those instances in which we elect to exercise our general power of supervision of courts inferior to this Court. Our review of a decision by the Court of Appeals upon an appeal from it to us as a matter of right, pursuant to G.S. § 7A--30, which means of review might have been pursued by the defendant in this action, is similarly limited.

Further, it is well recognized that assignments of error not set out in an appellant's brief, and in support of which no arguments are stated or authority cited, will be deemed abandoned. State v. Bumgarner,283 N.C. 388, 196 S.E.2d 210; State v. Felton, 283 N.C. 368, 196 S.E.2d 239; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Jenerett,281 N.C. 81, 187 S.E.2d 735; State v. Wilson, 280 N.C. 674, 187 S.E.2d 22; State v. Freeman, 280 N.C. 622, 187 S.E.2d 59; Branch v. State, 269 N.C. 642, 153 S.E.2d 343; State v. Spears, 268 N.C. 303, 150 S.E.2d 499. In the case Sub judice appellant did not raise the question of entrapment in the Court of Appeals.

By his petition for Certiorari, appellant sought review of the rulings of the Court of Appeals relating to the impropriety of the solicitor's cross-examination, to the validity and constitutionality of the narcotic statutes, and to the question of whether possession of a controlled substance is a lesser included offense of the crime of possession of a controlled substance with intent to distribute. Nevertheless, in his brief filed with this Court, appellant failed to argue, cite authority, or bring forward, even by reference, any of the matters upon which he based his petition for Certiorari. Thus, applying the above-stated rules, we conclude that nothing is properly before us for review unless we elect to exercise our general supervisory powers.

This Court will not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice. N.C.Const. Art. IV, § 12(1); Brice v. Salvage Co., 249 N.C. 74, 105 S.E.2d 439; Terrace, Inc. v. Indemnity Co., 243 N.C. 595, 91 S.E.2d 584. Under unusual and exceptional circumstances we will exercise this power to consider questions which are not properly presented according to our rules. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476. Because of the exceptionally unusual facts of this case relating to entrapment, we do not believe that defendant should be deprived of our consideration of this defense because of noncompliance with our rules. We therefore elect to consider the question of whether the evidence in this case discloses entrapment as a matter of law.

Entrapment is 'the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.' 21 Am.Jur.2d Criminal Law § 143; State v. Campbell, 110 N.H. 238, 265 A.2d 11. See R. Perkins, Criminal Law 1031 et seq. (2d ed.). See generally Annot., 62 A.L.R.3d 110; Annot., 22 A.L.R. Fed. 731. In the case before us, the trial judge submitted the question of entrapment to the jury; nevertheless, there remains the question of whether the trial judge erred in failing to allow defendant's motion to dismiss on the ground that the uncontradicted evidence disclosed entrapment as a matter of law.

We note that the question here presented is an evidentiary question, not one of constitutional dimensions. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Smith v. State, 258 Ind. 415, 281 N.E.2d 803.

Apparently, the first case in this State to consider a defense of entrapment, although not specifically calling the defense by that name, is State v. Smith, 152 N.C. 798, 67 S.E. 508. In that case a law enforcement officer furnished to a third person money with which to buy liquor and also paid the third person for his services. Under orders from the law enforcement officer, the police agent and a city policemen went to the defendant and purchased intoxicating liquor from him 'with the view of having him indicted and punished.' Upon his conviction, defendant appealed and presented the sole question of whether the conduct on the part of the law enforcement officer was a bar to his prosecution. In rejecting that contention, this Court stated: '. . . (A)s to prosecution for offenses, not against individuals, but against the public, like the present, it is no defense that the illegal sale was made to a party who bought not for his own use, but to aid in convicting the seller. It is not the motive of the buyer, but the conduct of the seller which is to be considered.' To similar effect, See State v. Hopkins, 154 N.C. 622, 70 S.E. 394.

The defense of entrapment was first recognized as such in State v. Love and State v. West, 229 N.C. 99, 47 S.E.2d 712. There the Court rejecting defendants' contentions that the evidence disclosed entrapment and that the trial judge should have granted motion as of nonsuit, held that in order for the defense of entrapment to exist, there must be more than trickery, fraud, or deception on the part of the law enforcement officers. There must be trickery, fraud, or deception 'practiced upon one who entertained no prior criminal intent.' (Emphasis supplied.) However, in a dictum statement, the Court noted its concern for overreaching police activities:

Considerations of the purity and fairness of the courts and the agencies created for the administration of justice gravely challenge the propriety of a procedure wherein the officers of the State envisage, plan and instigate the commission of a crime and proceed to punish it on the theory that a facile compliance with the officer's invitation confirms the accuracy of the suspicion of an unproved criminal practice,--for which the defendant is in reality punished.

In State v. Burnette, 242 N.C. 164, 87 S.E.2d 191, the State's evidence tended to show that after receiving from the defendant several telephone calls in which he obscenely stated that 'he wanted her,' the prosecuting witness reluctantly consented to the police officers' request that she allow one of them to conceal himself in her automobile and meet the defendant at a place designated by him. Upon going to this place, she unlocked the door of her automobile, and the defendant entered the car, lunged across the seat, grabbed her, and started to put his hands around her throat. The defendant was then taken into custody by the police officers and charged with assault with intent to commit rape. The evidence showed that there were several other abortive attempts to trap the defendant in the same manner before he was finally apprehended. At trial and upon appeal, the defendant contended that the case against him should have been nonsuited because the State's evidence revealed that he was a victim of entrapment. This Court rejected the defense of entrapment and speaking through Justice Parker (later Chief Justice), in part, stated:

It is the general rule that where the criminal intent and design originates in the mind of one other than the defendant, and the defendant is, by persuasion, trickery or fraud, incited and induced to commit the crime charged in order to prosecute him for it, when he would not have committed the crime, except for such incitements and inducements, these circumstances constitute entrapment and a valid defense. State v. Marquardt, 139 Conn. 1, 89 A.2d 219, 31 A.L.R.2d 1206 and Annotation at page 1212; Butts v. United States, 8th Cir., 273 F. 35, 18 A.L.R. 143 and Annotation at page 149; Robinson v. United States, 8th Cir., 32 F.2d 505, 66 A.L.R. 468 and Annotation at page 482; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249 and Annotation at page 265; People v. Finkelstin, 98 Cal.App.2d 545, 553, 220 P.2d 934; Falden v. Commonwealth, 167 Va. 549, 555, 189 S.E. 329; State v. Jarvis, 105 W.Va. 499, 500, 143 S.E. 235; 22 C.J.S. Criminal Law § 45, pp. 99--100; 15 Am.Jur., Criminal Law, Sec. 336. See also State v. Love; (State v. West), 229 N.C. 99, 47 S.E.2d 712; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617.

In the leading case of Butts v. United States, Supra, (273 F. 38), Sanborn, C.J., said for the Court: 'The first duties of the officers of the law are to prevent, not to punish, crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.'

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. Jarvis, Supra; State v. Mantis, 32 Idaho 724, 187 P. 268; 15 Am.Jur., Criminal Law, p. 24; 22 C.J.S. Criminal Law pp. 100--101.

Accord: State v. Coleman, 270...