State v. Brockenborough

WEBB, Judge. We hold the trial court committed prejudicial error in refusing to allow the defendant to testify as to the conversations with the paid informant McArthur. If allowed, he would have testified that McArthur made numerous personal and telephone contacts with him over a four-day period in September 1978; that she asked him to find her some heroin, that he refused and tried to talk her out of using it; and that she repeatedly told him she needed it and that “she was sick.” This was evidence from which the jury could have concluded the defendant was entrapped by the State. See State v. Stanley, 288 N.C. 19, 215 S.E. 2d 589 (1975). As these statements were not offered to prove the truth of the matters asserted (i.e., that McArthur was addicted to heroin and that “she was sick”) but instead were offered to show that the statements were made, and that through them, defendant was induced to commit an offense he would not otherwise have committed, these statements were not hearsay. See 1 Stansbury’s N.C. Evidence, § 141 (Brandis rev. 1973) and the cases cited therein for situations where declarations may be admitted for non-hearsay purposes. Defendant also assigns as error the trial court’s failure to require the State to make an affirmative effort to locate Vicki McArthur. We find this contention is without merit. Prior to arraignment and trial, the court declared McArthur a material witness and ordered the State to furnish defendant with the best information available to the district attorney and local law enforcement officers as to McArthur’s whereabouts. It was further ordered that if an address for McArthur was found, the State was to inform the court and defendant. We hold this was all the State was required to do. New trial. Judges Parker and Arnold concur.