Opinion
No. COA12–527.
2013-03-5
STATE of North Carolina v. Keith Jerome WHITAKER, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
Appeal by defendant from judgment entered 14 February 2011 by Judge Michael J. O'Foghludha in Wake County Superior Court. Heard in the Court of Appeals 11 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Parish & Cooke, by James R. Parish, for defendant-appellant.
GEER, Judge.
Defendant Keith Jerome Whitaker appeals from his conviction for conspiring to sell or deliver cocaine. Defendant primarily argues on appeal that the trial court erred in failing to instruct the jury on the defense of entrapment. We hold that, under State v. Neville, 302 N.C. 623, 276 S.E.2d 373 (1981), defendant was not entitled to an instruction on entrapment because his defense was that he did not participate in the conspiracy. Under Neville, defendant cannot both deny any involvement in the crime and claim that he was entrapped into committing the offense. Although defendant argues, in any event, that the State's evidence was sufficient to support an instruction on entrapment, no evidence showed that any criminal design originated with the government agents and not with defendant, as required by the defense. Because we find defendant's remaining arguments unpersuasive, we conclude that defendant received a trial free from prejudicial error.
Facts
The State's evidence tended to show the following facts. On 12 August 2010, Detective Stuart Little of the Raleigh Police Department was leading a “buy-bust” operation targeting a gas station located at the corner of New Hope Church and Brentwood Roads in Raleigh, North Carolina. Detective Little arranged for a paid informant, Tommy James, to attempt to buy illegal drugs from people at the gas station. Mr. James was equipped with a concealed microphone that allowed Detective Little to hear everything Mr. James said. Detective Little maintained visual surveillance on Mr. James and the gas station parking lot from his position in a covert vehicle parked in an adjacent parking lot.
A red Mercury Cougar drove into the gas station parking lot and parked. The driver left the car and entered the gas station. Defendant, a passenger in the red Mercury, got out of the car and stood beside it. Mr. James walked up and asked defendant whether defendant “knew where he could get some hard or trees,” meaning respectively cocaine and marijuana. Defendant answered by twice asking Mr. James whether he was “a cop.” Mr. James told defendant he was not, and defendant responded, “[M]y boy can't help you out with the trees but he can help you out with the hard.”
Defendant then nodded to Gregory McCoy, the only other passenger in the car. Mr. McCoy got out of the car and walked a short distance away with Mr. James and defendant following. Mr. McCoy then sold Mr. James .17 grams of crack cocaine for $20.00. After the transaction, Mr. McCoy and defendant walked away in the same direction and were picked up by the red Mercury. When the car had travelled approximately 30 or 40 yards, law enforcement agents pulled it over and arrested defendant and Mr. McCoy.
On 27 September 2010, defendant was indicted for conspiracy to sell or deliver cocaine. Defendant did not present any evidence at trial, and the jury found defendant guilty. The trial court sentenced defendant to a presumptive-range term of six to eight months imprisonment. The court then suspended the sentence and placed defendant on 24 months of supervised probation. Defendant timely appealed to this Court.
I
Defendant first argues that he received ineffective assistance of counsel (“IAC”) as a result of defense counsel's cross-examination of Detective Little. In order to prevail on an IAC claim,
“[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064 (1984)).
The United States Supreme Court has held that IAC claims should rarely be raised on direct appeal:
When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.... The evidence introduced at trial ... will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis. If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse .... The trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them.... Without additional factual development, moreover, an appellate court may not be able to ascertain whether the alleged error was prejudicial.
Massaro v. United States, 538 U.S. 500, 504–05, 155 L.Ed.2d 714, 720–21, 123 S.Ct. 1690, 1694 (2003).
Our Supreme Court has held that an IAC claim “brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v.. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). Nevertheless, “if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
On cross-examination of Detective Little, defense counsel asked a series of questions testing the detective's personal knowledge of Mr. James' history of providing reliable information to law enforcement officers. The detective stated that, although Mr. James had a history working with other officers, this was the detective's first case working with him, and the detective therefore could not say that Mr. James had previously been reliable for the detective, personally. Defense counsel then asked, “Can you name a time he's done anything for any law enforcement agency before that was reliable, in fact?” The detective began to answer based on statements made to the detective by another officer, and defense counsel attempted to withdraw the question. The trial court allowed the detective to answer the question, and the detective testified:
According to Detective Hines and other detectives, he is very good at what he does and he has very good information. He's been very—my understanding, he's been doing it for five or six years, and you have to be doing something right to be doing it for that long.
With respect to this aspect of the cross-examination, we need not decide whether counsel's performance was so deficient as to amount to IAC because defendant cannot show the necessary prejudice. The detective had already testified, on direct examination, to essentially the same information elicited by defense counsel's cross-examination question.
On direct examination, the detective explained that he knew Mr. James through other officers who had used the informant on several occasions, that the detective had not personally worked with Mr. James prior to this case, that the informant's information had “led to numerous arrests” in drug cases, and that the informant had been “very good with his information.” Because the cross-examination answer essentially repeated this already-admitted information, there was no prejudice and, therefore, no IAC.
Defendant next contends that his counsel was ineffective when he elicited testimony from the detective on cross-examination regarding an incriminating statement made by defendant to Mr. James about the ability of Mr. McCoy to sell Mr. James cocaine. Detective Little testified that during the buy-bust operation, he was monitoring everything Mr. James was saying through a concealed microphone Mr. James was wearing. The prosecutor asked the detective on direct examination, “[W]hat did you hear?” Defendant objected on hearsay grounds, and the trial court overruled the objection. The detective then testified that he heard Mr. James ask defendant if defendant knew where Mr. James “could get some hard or trees,” meaning crack cocaine or marijuana, and that defendant twice asked the informant if he was “a cop.”
When the prosecutor asked what defendant's response was to Mr. James' question about “hard or trees,” the detective testified that he did not remember defendant's response and was probably unable to hear defendant's response because of other noises in the background. The detective further testified on direct examination that after the operation was complete, he met with Mr. James, but he could not remember the exact words that Mr. James said to him at that time.
However, during cross-examination of the detective, the following exchange occurred:
Q. I'm going to ask again, I'm not sure I got—did Mr. James ever make statements to you about the course of events that evening?
A. Yes.
Q. What did he tell you?
A. He said that when the guy pulled up, he remembers the guy leaning against the car and then he initiated conversation with him, he asked him a couple of times if he was a cop and, of course, he said, no. So then at that point he looked back at the car, made a motion to his buddy. First he told him, he said, my boy can't help you out with the trees but he can help you out with the hard. So he looked back at the guy in the car and made a motion to him.
Q. Say that again?
A. My boy can't help you out with the trees but he can help you out with the hard.
Q. And Tommy James said that to you?
A. No, sir. That's the statement that Mr. James told me that Mr. Whitaker had said to him.
Q. Did you hear Mr. Whitaker say that?
A. I did not. You know, I didn't remember everything that was said. I did not remember hearing that particular communication between the two of them.
Q. So you never heard him say that?
A. No, sir, I did not. All I saw was when he looked back at the car and made a motion.
Q. You never heard him say anything about trees or hard?
A. Not from Mr. Whitaker.
Q. Who did you hear use the words “trees and hard”?
A. Mr. James.
Q. And you heard him say that?
A. Yes, sir.
Q. But you didn't hear Mr. Whitaker say anything about trees and hard?
A. No, sir.
Q. But Mr. James said he did?
A. Mr. James said Mr. Whitaker said, my boy can help you out with some hard.
Q. Huh. Now, how far after this thing happened did Mr. James tell you these things that took place but you didn't actually hear as they happened?
A. It was discussed that night. It was discussed again probably this morning.
Q. What else did he tell you, Mr. James, besides that Mr. Whitaker said something about trees and hard?
A. That—I think that's about as far of the details of the case.
(Emphasis added.)
Subsequently, when Mr. James was called to testify, the trial court did not allow him to testify to defendant's statement about his “boy” helping him due to a discovery violation. As a result, by the end of the trial, the detective's cross-examination testimony was the only evidence of defendant's saying that his friend could help Mr. James out with the “hard.”
Whether or not this questioning constituted IAC cannot be resolved on direct appeal because we cannot say, on this record, that defense counsel lacked a legitimate trial strategy when conducting this cross-examination. At the point in the trial when defense counsel cross-examined the detective, the State had not yet called Mr. James to testify, and the trial court had not yet precluded Mr. James from testifying regarding defendant's statement to Mr. James. If defense counsel believed that Mr. James would testify about defendant's statement, then he could have been attempting to undermine, in advance, the credibility of Mr. James' testimony as to that statement.
It is possible that counsel may have been attempting to suggest to the jury that Mr. James fabricated the statement by defendant regarding the “trees” and “the hard” because Mr. James had a financial interest in defendant's conviction. The cross-examination questions at issue may have, therefore, been part of a potentially reasonable trial strategy in the event Mr. James did in fact testify to defendant's statement. See State v. Gainey, 355 N.C. 73, 113, 558 S.E.2d 463, 488 (2002) (“Reviewing courts should avoid the temptation to second-guess the actions of trial counsel, and judicial review of counsel's performance must be highly deferential.”).
We cannot, however, determine whether this was in fact defense counsel's strategy in asking the questions, especially given that counsel ultimately sought to have Mr. James' testimony limited. Consequently, we dismiss this claim without prejudice to defendant's asserting it in a motion for appropriate relief. Fair, 354 N.C. at 167, 557 S.E.2d at 525 (“[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent MAR proceeding.”).
II
Defendant next argues that the trial court erred in denying his motion to dismiss the charge of conspiracy to sell or deliver cocaine. “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (emphasis added).
“ ‘A criminal conspiracy is an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means.’ “ State v. Clark, 137 N.C.App. 90, 95, 527 S.E.2d 319, 322 (2000) (quoting State v. Burmeister, 131 N.C.App. 190, 199, 506 S.E.2d 278, 283 (1998)). “ ‘Direct proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.’ “ Id. (quoting State v. Aleem, 49 N.C.App. 359, 363, 271 S.E.2d 575, 578 (1980)). “A conspiracy ‘may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.’ “ Id. (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
The evidence admitted at trial in this case, viewed in the light most favorable to the State—including defendant's offer that the alleged co-conspirator could sell Mr. James crack cocaine, the nod that got Mr. McCoy out of the car, and the two men seemingly working together—is sufficient evidence to permit a reasonable juror to find that defendant had an agreement with Mr. McCoy to sell cocaine to Mr. James. See, e.g., State v. Mobley, 206 N.C.App. 285, 292, 696 S.E.2d 862, 867 (2010) (holding motion to dismiss conspiracy to sell counterfeit substance charge properly denied where, during “buy-bust” operation, two undercover officers drove by defendant, defendant told officers where to park, defendant spoke to another man who entered nearby apartment and returned carrying plastic bag containing counterfeit substance, both defendant and other man approached officers, defendant brokered deal by asking officer what he wanted, and defendant assured other man who was hesitant about making deal that buyer-officers “ain't no police”), disc. review denied,365 N.C. 75, 706 S.E.2d 229 (2011). Accordingly, defendant's motion to dismiss was properly denied.
III
Defendant next argues that the trial court erred in denying defendant's request for an instruction on the defense of entrapment. “The defense of entrapment consists of two elements: (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) when 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, 513, 246 S.E.2d 748, 749–50 (1978). “Merely affording opportunities or facilities for the commission of a crime, however, does not amount to entrapment.” Id. at 515, 246 S.E.2d at 751.
Our Supreme Court has held that “North Carolina follows the majority rule which precludes the assertion of the defense of entrapment when the defendant denies one of the essential elements of the offense charged.” Neville, 302 N.C. at 625, 276 S.E.2d at 374. “[T]he rationale of that rule is that the law will not countenance a claim that defendant did not commit the offense and a claim that he was entrapped into the commission of the very offense which he denied committing.” Id. (internal quotation marks omitted).
In Neville, the State presented evidence that an informant and an undercover officer engaged in a conversation with the defendant about purchasing drugs, that the defendant rode to an apartment with the officer and informant to conduct the drug sale, and that the defendant then sold drugs to the officer. Id. at 624, 276 S.E.2d at 374. The defendant, however, testified that the informant approached the defendant and told the defendant that his drug dealing partner-referring to the undercover officer-had cheated the informant and the informant was going to “ ‘get even’ “ by cheating the officer. Id. He further testified the informant stated he would pay the defendant $20.00 to help the informant conduct a fake sale of drugs to the officer, the defendant agreed, and during the entire encounter the defendant never possessed any drugs and only pretended to exchange drugs for money with the informant. Id.
On appeal, the Supreme Court observed: “His defense is that he did not do the acts underlying the offenses charged; yet he seeks an instruction that he was induced and entrapped by the government to do those acts. In our opinion, it is inconsistent for defendant to assert on the one hand that he did not do certain acts and then to insist that the government induced him to do the very acts which he disavows doing.” Id. at 625, 276 S.E.2d at 375. The Court therefore held “that where, as here, the defendant denies the commission of the acts underlying the offense charged, he cannot raise the inconsistent defense of entrapment.” Id. at 626, 276 S.E.2d at 375.
Here, defendant did not testify. However, the State called Mr. McCoy as a witness and on cross-examination, defense counsel elicited from Mr. McCoy testimony that defendant was unaware that Mr. McCoy was in possession of cocaine on the date of the charged offense; that Mr. McCoy and defendant had never discussed selling cocaine; that Mr. McCoy did not remember defendant ever talking with Mr. James; and that Mr. McCoy, alone, sold cocaine to Mr. James. Further, in response to defense counsel's questions, Mr. McCoy testified that defendant, Mr. McCoy's nephew, cannot read or write and “isn't like us” in that defendant often does not “fully” know what is happening around him. Notably, Mr. McCoy also testified that defendant had subpoenaed Mr. McCoy to testify, implying that if the State had not called Mr. McCoy as a witness, defendant would have.
Defendant's defense was, therefore, that defendant had no involvement in any criminal activity, and Mr. McCoy sold cocaine to Mr. James without defendant's participation. Thus, under Neville, defendant could not raise the inconsistent defense of entrapment. Id.
Defendant attempts to distinguish Neville by citing this Court's opinion in that case. See State v. Neville, 49 N.C.App. 684, 272 S.E.2d 164 (1980), aff'd, 302 N.C. 623, 276 S.E.2d 373 (1981). However, the opinion of the Supreme Court addressed the issue raised by defendant and is, therefore, controlling. The Supreme Court recognized the possibility that “the State's own evidence [could] raise[ ] an inference of entrapment,” in which case, an instruction on entrapment would be proper. 302 N.C. at 626, 276 S.E.2d at 375. However, the Supreme Court held that because the State's evidence raised no inference of entrapment, the trial court did not err by failing to give the instruction. Id.
We also cannot conclude that the State's evidence raised an inference of entrapment. In State v. Thompson, 141 N.C.App. 698, 700, 543 S.E.2d 160, 162 (2001), the defendant testified that he was contacted by an informant, the informant came to the defendant's apartment requesting cocaine, the defendant told the informant he could not help him, but the informant told the defendant that the defendant had a neighbor who sold cocaine. The defendant then purchased cocaine from the neighbor for the informant. Id. Later, the informant again contacted the defendant and asked the defendant to buy cocaine. Id. The defendant refused, but the informant requested that the defendant make one more purchase. Id. The informant and an undercover officer came to the defendant's apartment and paid the defendant to purchase cocaine from his neighbor. Id. On a third occasion, the undercover officer contacted the defendant and asked to buy cocaine; the defendant again complied. Id. at 701, 543 S.E.2d at 162.
The Court in Thompson held that the defendant did not “introduce sufficient evidence of persuasion by either the informant or [the undercover officer] to suggest that the criminal design originated with the law enforcement agents and not with defendant.” Id. at 707, 543 S.E.2d at 166. In reaching its holding, the Court reasoned:
Neither the informant nor [the undercover officer] provided gifts or made promises before asking to purchase cocaine from defendant. Also, although defendant testified that he had been reluctant to sell cocaine to the informant and [the undercover officer], his own testimony showed defendant required little urging before acquiescing to their requests.
Id.
Here, the State's evidence is not materially different from the evidence relied upon in Thompson. The fact that Mr. James initiated contact with defendant seeking to buy drugs is insufficient to show that the criminal design originated with the government agents and not with defendant. Moreover, there is no evidence that Mr. James provided gifts or made promises to defendant, other than stating he was not a “cop,” before purchasing the cocaine. Given the State's evidence of defendant's ready participation in the charged offense, the trial court did not err in refusing to give an entrapment instruction.
Defendant cites State v. Wallace, 246 N.C. 445, 98 S.E.2d 473 (1957), as involving “similar” facts. The Court did not, however, address the question of the sufficiency of the evidence to support an instruction on the entrapment defense. Instead, in Wallace, the trial court had in fact instructed on entrapment; the Supreme Court reversed because that instruction was not a correct statement of the law regarding the defense. Id. at 447, 98 S.E.2d at 474.Wallace does not, therefore, require reversal in this case.
We hold that the trial court properly refused to instruct on the entrapment defense. While defendant claims that defense counsel committed IAC because he failed to provide the statutorily-required notice of the defense, that failure was not the basis for the trial court's refusal to instruct on the defense. The trial court heard defendant's entrapment arguments on the merits and denied defendant's request for an instruction on entrapment based on the merits. Thus, even assuming defense counsel erred in failing to provide notice to the State that defendant would request an instruction on entrapment, that error did not result in the prejudice necessary for defendant to prevail on his IAC claim. See Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
No error. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).