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State v. Redmon6/1/2004
immediately observed obvious signs that defendant was impaired; (3) when questioned, defendant told Styles he had been drinking, and explained that he was just waiting for his girlfriend to get home; (4) defendant fully cooperated with Styles' requests; (5) Styles told defendant he could not wait in the parking lot and directed him to "move along"; (6) after Styles drove out of the parking lot, he stayed in the general area of the apartment complex; (7) a few minutes later, when defendant left the apartment parking lot, Styles's patrol vehicle was hiding out of sight with its lights off, at the intersection next to the apartments; and (8) as soon as defendant started driving, Styles pulled him over and approached defendant's truck carrying an Alcosensor device. We find this sufficient evidence of inducement to commit the offense of DWI to entitle defendant to an instruction on entrapment.
This evidence, if believed, would tend to show that defendant was not predisposed to drive while impaired; that Styles knew that defendant was impaired; that although defendant may not have been doing anything illegal, Styles directed defendant to leave the parking lot and "move along"; that at 4:30 a.m. in rainy weather Styles knew that driving was likely defendant's only realistic means of "moving along"; that Styles lingered in the area of the apartment complex after telling defendant to leave; that when defendant left the lot Styles was waiting in the dark with his vehicle lights turned off; and that as soon as defendant drove away Styles immediately arrested him for DWI. We conclude that on the facts presented in this case, defendant was entitled to an instruction on entrapment, and that the trial court erred by denying defendant's request for this jury instruction.
Under N.C.G.S. § 15A-1443 (a) (2003), a criminal defendant is prejudiced by non-constitutional errors "when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]" In the present case, defendant's evidence was substantial. Moreover, the jury's question for the trial court illustrates that even without an instruction on entrapment, the jury found that the defense might be an issue in the case. We conclude that the failure to instruct the jury on entrapment was prejudicial and requires a New Trial.
Judges McCULLOUGH and HUDSON concur.
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