Bennett v. State

• Decision Date: 06 May 1981
• Docket Number: No. 480S116,480S116
• Citation: 423 N.E.2d 588
• Parties: Albert BENNETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 588

423 N.E.2d 588

Albert BENNETT, Appellant, v. STATE of Indiana, Appellee.

No. 480S116.

Supreme Court of Indiana.

May 6, 1981.

Terry C. Gray, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Albert Bennett was charged in Lake Superior Court with five counts of theft, class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.). After a jury trial, appellant was convicted on all five counts. Bennett presents three issues for our review, concerning: (1) whether the evidence was sufficient to overcome the defense of entrapment; (2) whether the trial court erred in overruling appellant's motion in limine and admitting certain videotapes into evidence; (3) whether the cumulative effect of these issues amounts to fundamental error.

The offenses of which Bennett was convicted each involved motor vehicles stolen in the Lake County area in the late summer and fall of 1978. In 1978, Indiana State Police officers and F.B.I. agents established a "dummy" corporation in Hammond, Indiana, under the name of International Auto Brokers. This type of police operation has come to be known as a "sting" operation. International Auto Brokers acted as a "fence," purchasing stolen vehicles for resale from persons in the area having such items. The goal of the "sting" was the detection and apprehension of persons who were stealing motor vehicles and in turn selling them in an undercover, illicit market. International Auto Brokers used a large warehouse, which contained an area in the back sufficient to house approximately thirty vehicles, and a front room, called the "buy room." This room was equipped with audio-visual equipment for the purpose of recording the illicit transactions.

State Police Officer Gerald Hole acted as president of International Auto Brokers under the name D. J. Ringo. Other State Police officers and F.B.I. agents also worked in the investigation, observing and videotaping the transactions, as well as taking photographs of the vehicles and persons involved. The operation also employed a confidential informant, George Morris, for the purpose of introducing suspects to the arrangement. Morris brought appellant Bennett to the "buy room," but made no deals with him concerning the purchase of any of the items Bennett had for sale. Sergeant Hole always conducted negotiations in the "buy room." Near the time of Bennett's arrest, informant Morris was removed from the jurisdiction to ensure his safety. Morris did not appear at the trial; however, though his whereabouts was not disclosed, the State indicated at all times that, if a subpoena were issued for George Morris, he would be produced. It does not appear that appellant ever attempted to subpoena or produce Morris as a witness at trial.

Appellant first came to the warehouse in the company of Morris on July 11, 1978. At that time, he offered to sell Sergeant Hole a black G.M.C. four-wheel drive vehicle. This vehicle had been stolen earlier that day from a restaurant parking lot, and was subsequently identified by its owner. Hole told Bennett that the operation was being curtailed and that he was not very much interested in buying a four-wheel drive truck. However, Hole ultimately agreed to purchase the vehicle for five hundred dollars, which was somewhat less than Bennett's original asking price.

Bennett also inquired at that time if Hole was interested in purchasing blank title certificates and federal door stickers. He stated that he had available blank title and registration certificates and "V.I.N. plates" and rivets. These plates were those placed on the vehicle door at the time the vehicle is manufactured, and bear the vehicle identification number. Bennett also informed Hole that he had access to vehicles out of a factory in Detroit, and stated he could furnish such a vehicle for twenty-three hundred dollars. Hole informed Bennett that this was too high a price.

Bennett returned to the warehouse on several occasions in the summer and fall of 1978, selling four more vehicles to Hole. Each of these vehicles had been stolen in the Lake County area, and each was ultimately identified by the respective owners and proved to have been stolen. On each occasion in the "buy room," Bennett indicated to Hole that he had access to other merchandise which was for sale to Hole and his associates. This merchandise included, at various times, three hundred kitchen cabinets, two hundred and fifty television sets, two hundred leather coats, a semi-trailer load of beef, a semi-trailer load of groceries, two hundred Black and Decker drills, and various other motor vehicles. Sergeant Hole and his associates knew nothing of any of the particular items they purchased from Bennett until he came to the "buy room" and presented the items for sale. At that time, Bennett informed Hole of the place and manner in which he had obtained the vehicle.

I.

Appellant first claims the State did not present sufficient evidence to overcome his entrapment defense. Bennett claims that, once he raised the defense of entrapment, the State was bound to show beyond a reasonable doubt that he was not entrapped into the commission of these crimes. Appellant bases his contention primarily on the fact of his initial contacts with informant Morris. Burnett asserts that, since Morris did not testify, there was no showing that Bennett was not induced by Morris, as an agent of the police, to take part in all of these transactions. Thus, he claims, the State did not prove that he was disposed to commit these crimes before he conducted the transaction with Hole in the "buy room."

Appellant is, of course, correct in his assertion that the burden is on the prosecution, when the issue is raised, to show that the defendant was not the victim of entrapment. This question is one of fact, and thus to be determined by the jury after weighing all the evidence presented to them. In this regard we do note that the informant, Morris, was available as a witness if he had been subpoenaed. It does not appear that Burnett attempted to secure the informant's presence at trial; likewise, he did not raise any question at trial concerning Morris' presence.

Our cases have adapted a "subjective approach" to the entrapment defense. In Hardin v. State, (1976) 265 Ind. 635, 639, 358 N.E.2d 134, 136, we explained:

"When the question of entrapment is raised, the court must make a two-part inquiry: (1) did police officers or their informants initiate and actively participate in the criminal activity; and (2) is there evidence that the accused was predisposed to commit the crime so that the proscribed activity was not solely the idea of the police officials? If the evidence shows police activity absent any showing of predisposition on the part of the accused, entrapment as a matter of law has been established."

In viewing the entrapment defense, then, the focus is properly directed to the accused's predisposition to commit the crime, rather than on the extent of government participation. Thus, if the accused had the predisposition to commit the crime and the police merely afforded him an opportunity to do so, then the defense of entrapment is not available. Ind.Code § 35-41-3-9 (Burns 1979 Repl.); Drollinger v. State, (1980) Ind., 409 N.E.2d 1084, 1086; Williams v. State, (1980) Ind., 409 N.E.2d 571, 573-74; Stewart v. State, (1979) Ind., 390 N.E.2d 1018, 1021; Cyrus v. State, (1978) 269 Ind. 461, 463-64, 381 N.E.2d 472, 473-74; Hutcherson v. State, (1978) 269 Ind. 331, 335, 380 N.E.2d 1219, 1221; Hardin v. State, supra.

The facts recited above clearly show ample evidence from which the jury could find beyond a reasonable doubt that appellant had a predisposition to commit the crimes with which he was charged. It is clear that Bennett had stolen the vehicles prior to the time he discussed the sale of them to the police officers. In fact, Bennett worked to persuade the police to buy the vehicles after they indicated they wished to scale down their operation. From the outset of his dealings with Sergeant Hole, Bennett indicated he had access to great quantities of other items which were available for sale to Hole. Because there were ample facts to support the jury's rejection of appellant's entrapment defense, and because we will not reweigh the evidence, we have no grounds to disturb the jury's finding on this question. Williams v. State, supra; Hutcherson v. State, supra.

II.

Prior to the beginning of testimony, appellant filed a motion in limine directed at preventing the admission of the videotapes which police officers made of the transactions involving Bennett. The trial court denied the motion on the ground that Bennett did not show at that...