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State v. Redmon6/1/2004
Defendant (Scott Redmon) appeals from conviction and judgment of driving while impaired. He argues on appeal that the trial court committed reversible error by denying his request to instruct the jury on the defense of entrapment. We agree and reverse.
The trial testimony tended to show the following: During the early morning hours of 30 March 2002, Deputy Brian Styles of the Buncombe County Sheriff's Department was patrolling the southern part of Buncombe County. At around 4:15 a.m. he was dispatched to the Glenn Shelton apartments to investigate an anonymous report that a man was sleeping in a truck parked at the apartment complex. Upon arriving at the apartment parking lot, Styles identified the truck that had been described to him. The truck was parked and its engine was turned off. He ran a license plate check which showed that the truck was not stolen or otherwise implicated in criminal activity. Styles then knocked on the truck window and awakened the defendant, who was asleep in the truck's front seat. He ran a computer check of defendant's drivers license and determined that defendant had no outstanding warrants.
Styles testified at trial that when he woke up the defendant he "notice[d] that he had been drinking" and that the defendant smelled strongly of alcohol, appeared sleepy, and had red, glassy eyes. When questioned, the defendant told Styles he had been drinking alcoholic beverages that night, and explained that he was waiting for a friend who lived at the apartments to return home. Styles testified that he told defendant to see if his friend was home yet, so he would not have to drive in his condition. He denied telling the defendant to "move along" or otherwise suggesting that he drive.
Styles left the parking lot and briefly patrolled the immediate area, then returned to the intersection next to the apartment complex. Very shortly thereafter, Styles saw a truck leave the parking lot. He testified that he did not know it was defendant's truck, and that he stopped the truck because it was exceeding a safe speed. After administering a roadside Alcosensor test, Styles arrested defendant for exceeding a safe speed and suspicion of DWI, and called the North Carolina Highway Patrol to send a trooper with a license to operate an Intoxilyzer 5000 instrument.
On cross-examination, Styles acknowledged that defendant was doing nothing illegal in the parking lot and had cooperated with all of his requests. The officer agreed that he had no grounds to arrest defendant arising out of their interaction in the parking lot. He also conceded that there was "limited traffic if any" on the stretch of road where he was stopped when he saw defendant leave the parking lot, and that he arrested defendant no more than seven to ten minutes after arriving at the apartment parking lot. Styles denied parking out of sight and turning off his headlights to wait for defendant to leave the parking lot. He also denied recognizing defendant's truck before he pulled it over, or approaching defendant's truck with his Alcosensor instrument already in hand.
Trooper Denman of the North Carolina Highway Patrol testified that an Intoxilyzer 5000 test performed on defendant revealed a blood alcohol level of .10. In his opinion, defendant was clearly "unfit to drive" and his impairment was "obvious."
Defendant testified that he was 33 years old and a lifetime resident of Buncombe County, and that he had no criminal convictions. He owned an electrical, refrigeration, heating and air conditioning contracting business. On 30 March 2002 defendant went to his girlfriend's apartment after work, and they agreed to go out separately with friends, then meet later at her apartment. Accordingly,
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