State v. Foster, 235 N.C. App. 365 (Aug. 5, 2014)

In a delivery of cocaine case the trial court abused its discretion by denying the defendant’s request for an entrapment instruction as a sanction under G.S. 15A-910(a) for failure to provide "specific information as to the nature and extent of the defense" as required by G.S. 15A-905(c)(1)(b). The trial court made no findings of fact to justify the sanction and the State did not show prejudice from the lack of detail in the notice filed eight months prior to trial. The court held:

[I]n considering the totality of the circumstances prior to imposing sanctions on a defendant, relevant factors for the trial court to consider include without limitation: (1) the defendant's explanation for the discovery violation including whether the discovery violation constituted willful misconduct on the part of the defendant or whether the defendant sought to gain a tactical advantage by committing the discovery violation, (2) the State's role, if any, in bringing about the violation, (3) the prejudice to the State resulting from the defendant's discovery violation, (4) the prejudice to the defendant resulting from the sanction, including whether the sanction could interfere with any fundamental rights of the defendant, and (5) the possibility of imposing a less severe sanction on the defendant.

Slip op. at pp. 29-30. The court continued, holding that assuming that the defendant’s notice constituted a discovery violation, the trial court abused its discretion by refusing to instruct on entrapment as a sanction.