An opinion handed down today by the North Carolina Court of Appeals reversing a drug conviction sheds light on how courts must consider arguments for entrapment. Though the ruling springs from a Rowan County case, it could potentially be applied to a Durham drug case, currently up for appeal, in which a man argued he was entrapped by police.
In the Durham case, which we wrote about in June, 61-year-old Milton Morgan was caught on camera selling crack to confidential informant Jennifer Burrage. (The physical handoff was not captured on camera, but the jury assumed the transaction had occurred.) Morgan, who had no prior criminal record, insisted that he was not a drug dealer, and that the police induced him into making a sale he was not predisposed to make.
Morgan was not Burrage’s original target, and during a conversation captured on audio prior to the sale, Burrage told Durham police that “he’s not a dealer.” But the police instructed her to try to buy drugs from him anyway.
During trial, Morgan’s attorney argued that Judge Michael J. O’Foghludha should give the jury instruction on the defense of entrapment. O’Foghludha declined. The jury found Morgan guilty of sale, delivery, possession, and maintaining a dwelling for drugs.
There are parallels between the Durham and Rowan County cases. In 2011 Emily Eudy told the Rowan Sheriff’s Office that her friend Melissa Ott—the defendant in the case—had narcotics for sale. In order to reduce her own sentence for a pending drug charge, Eudy offered to introduce undercover detective Kevin Black to Ott to make a purchase. Eudy and Black met with Ott, who sold Black 49 hydrocodone pills.
During trial, Ott testified that she was not a dealer, but a user, and only sold the pills to Black as a favor to Eudy, alleging that Eudy devised the scheme in order to make money. Ott testified that hours before the transaction, Eudy had given Ott her own pills and coached her on what to say to Black later that day. Ott further testified Eudy feigned fear that she would get in trouble with her husband if she dealt directly with Black. (When Eudy took the witness stand she denied Ott’s version of events, alleging that Eudy was, in fact, a dealer, and that she had not given Ott the pills to sell.)
Over Ott’s objection, the judge declined to give the jury instruction on the defense of entrapment. Eudy was convicted for drug trafficking and possession of opium with the intent to sell or deliver.
In today’s unanimous opinion, however, the Court of Appeals reversed the verdict, ruling that the judge should have given the jury the instruction of entrapment, even though Eudy refuted Ott’s testimony.
The issue of whether a defendant was entrapped is generally a question of fact to be determined by a jury, through a judge’s instruction, based on evidence viewed in a light most favorable to the defendant. With that in mind, Judge Robert C. Hunter, writing on behalf of the Court of Appeals, agreed with Ott’s contention: “the evidence shows that the plan to sell the pills originated in the mind of Eudy, who was acting as an agent for law enforcement, and defendant was only convinced to do so through trickery and persuasion.”
After Morgan was convicted in the Durham case, he appealed. It would not be surprising if his appeal will be based on the grounds that Judge O’Foghludha should have allowed the jury to determine whether Morgan was entrapped.
In both the Durham and Rowan cases, there was evidence suggesting that the defendants were urged to sell drugs. Each defendant denied they were bona fide drug dealers. (In both examples, the argument appears stronger for Morgan than for Ott.)
“While the appellate attorney will ultimately decide what issues to bring forward, the lack of instruction on entrapment was a significant issue, as that was the major defense to the sale and delivery in the case,” said Daniel Meier, Morgan’s trial attorney.
However, there are differences of note between the cases. In the Ott case, there was evidence (albeit disputed) that the pills originated with Eudy; in the Morgan case, it appears he sold his own crack. In the Ott case, the disputed evidence suggested that Eudy coached Ott as to what to say; in the Morgan case, he received no such coaching. In the Ott case, the disputed evidence suggested that Ott received free pills for making the deal; Morgan received no such gift. Finally, Ott testified in her own defense, whereas Morgan declined to take the stand.