Opinion
No. COA11–806.
2012-05-15
STATE of North Carolina v. Joey Parice GRAHAM, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Scott Stroud, for the State. Tin Fulton Walker & Owen, PLLC, by Noell P. Tin; and Law Office of Harold Cogdell, Jr., by Harold Cogdell, Jr., for defendant-appellant.
Appeal by defendant from judgment entered 9 December 2010 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Scott Stroud, for the State. Tin Fulton Walker & Owen, PLLC, by Noell P. Tin; and Law Office of Harold Cogdell, Jr., by Harold Cogdell, Jr., for defendant-appellant.
GEER, Judge.
Defendant Joey Parice Graham appeals from his convictions of conspiracy to traffic in cocaine and of resisting a public officer. Defendant primarily contends on appeal that the trial court erred under Rule 404(b) of the Rules of Evidence in admitting evidence of his 2001 conviction for cocaine trafficking. We find the prior conviction was properly admitted to rebut defendant's claim of entrapment and was not too remote temporally. Because we are also not persuaded by defendant's other arguments, we find no error.
Facts
The State's evidence at trial tended to show the following facts. On 23 August 2007, an undercover police officer with the Charlotte–Mecklenburg Police Department, Detective Mark Temple, received information that defendant and a friend were seeking to purchase one kilogram of cocaine. After receiving permission from his supervisor to conduct a drug sale, Detective Temple telephoned defendant who confirmed that he and a friend were seeking to purchase one kilogram of cocaine.
Detective Temple arranged with defendant to meet him at a certain location and time to consummate the cocaine sale. Defendant arrived at the agreed-upon location and identified himself as the middleman in the transaction. Defendant attempted to change the location of the sale but when Detective Temple refused, defendant walked away to consult with a friend. Defendant returned in a vehicle accompanied by a person identified as Lujuan Johnston, who retrieved a bag containing $24,000.00 in cash from the trunk of the vehicle.
Johnston entered Detective Temple's vehicle with the money, and Detective Temple called for another officer to bring the cocaine. The other officer handed the cocaine to Detective Temple, who in turn handed it to Johnston. Detective Temple gave the signal to other officers who were maintaining surveillance to come and arrest the individuals. Although defendant and Johnston unsuccessfully attempted to flee, they were apprehended and arrested. Detective Temple was wearing a listening device for the entire encounter, and the audio from that device was played to the jury.
Defendant was transported to police headquarters where he gave a statement admitting that he had tried unsuccessfully to arrange another drug deal three weeks earlier in Gastonia, North Carolina. The police asked defendant to arrange a drug buy for them in exchange for concessions on his charges. However, defendant was unsuccessful in attempting to arrange another delivery of cocaine that evening to provide the requested assistance.
Defendant was indicted for trafficking in cocaine, conspiracy to traffic in cocaine, and resisting a public officer. On 24 October 2008, defendant filed a Notice of Entrapment Defense. The State subsequently dismissed the charge of trafficking in cocaine on 1 December 2009.
At trial, defendant asserted the defense of entrapment. He testified in his own defense and presented evidence from his parents and his sister. During his testimony, defendant admitted having been convicted in 2001 of trafficking in cocaine.
The jury found defendant guilty of conspiracy to traffic in cocaine and of resisting a public officer. The trial court sentenced defendant to a single term of 175 to 219 months imprisonment and imposed a $250,000.00 fine. Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial court improperly allowed the State to present the testimony of an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives regarding defendant's arrest in 2000 for trafficking in cocaine. Defendant argues that this evidence should have been excluded under Rule 404(b).
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Id.Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990).
Defendant contends that the prior conviction was too temporally removed from the 2007 offense to be relevant, and, therefore, it was unfairly prejudicial as it “planted” a presumption of guilt in the minds of the jurors. However, “remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991). Thus, the fact that the prior offense occurred seven years before the events at issue in this case does not warrant exclusion of the testimony under Rule 404(b).
Nevertheless, “[e]ven if admissible under Rule 404(b), the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under Rule 403.” State v. Aldridge, 139 N.C.App. 706, 714, 534 S.E.2d 629, 635 (2000). However, “[w]hether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.” Coffey, 326 N.C. at 281, 389 S.E.2d at 56.
Here, defendant offered a defense of entrapment. The defense of entrapment requires evidence of: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers to induce a defendant to commit a crime; and (2) the origination of the criminal design in the minds of government officials rather than the innocent defendant. State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 749–50 (1978). “It is well settled that the defense of entrapment is not available to a defendant who has a predisposition to commit the crime independent of governmental inducement and influence.” State v. Hageman, 307 N.C. 1, 29, 296 S.E.2d 433, 449 (1982).
“As a general principle, predisposition may be demonstrated by defendant's ready compliance, acquiescence in, or willingness to cooperate in a criminal plan where the police simply provide the defendant with the opportunity to engage in such crime.” State v.. Goldman, 97 N.C.App. 589, 593, 389 S.E.2d 281, 283 (1990). When a defendant asserts the defense, the State may show that the defendant was not entrapped by presenting evidence that the defendant was predisposed to commit the crime with which he is charged. Id.
Here, the fact that defendant had previously been arrested for possession of an amount of cocaine in excess of one kilogram tends to show that defendant was predisposed to commit the crime with which he was charged. The testimony was, therefore, relevant to rebut defendant's defense of entrapment. We cannot conclude that the trial court abused its discretion in determining that the probative value of a prior trafficking offense outweighed any unfair prejudice to defendant. We note further that, in any event, defendant has failed to demonstrate prejudice in light of defendant's own testimony admitting that he had been convicted of trafficking in cocaine.
Defendant next contends that the trial court erred by not allowing defendant to testify regarding a conversation that he had with Derrick Simpson. Defendant argues that the conversation would have shown inducement to commit the crime and, therefore, supported his entrapment defense. These statements were excluded by the trial court as hearsay.
Defendant testified on voir dire that Simpson suggested that defendant sell drugs in order to earn money; that after defendant had this conversation with Simpson, defendant began receiving telephone calls from Simpson seeking to entice defendant into finding a buyer for a large amount of cocaine Simpson possessed; that during one call, Simpson told defendant to expect a telephone call from a person named “Mike”; and that defendant received calls from “Mike” asking defendant to identify persons who might be interested in purchasing a large quantity of cocaine. Defendant contends that this testimony was not offered to establish the truth of the matter asserted but simply to show inducement to commit a crime, as required for his entrapment defense.
We first note that there was no evidence offered at trial that Simpson was a government informant of any sort or otherwise an agent of the State. For entrapment, defendant must prove the “acts ... carried out by law enforcement officers or their agents ... induce[d] a defendant to commit a crime....” Walker, 295 N.C. at 513, 246 S.E.2d at 750. Without evidence that Simpson was an agent of law enforcement, the excluded testimony was not relevant to entrapment, and the trial court did not err in sustaining the State's objection.
No error. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).