Crocker v. State
| Decision Date | 03 December 1990 |
| Docket Number | No. 09A02-9004-CR-215,09A02-9004-CR-215 |
| Citation | 563 N.E.2d 617 |
| Parties | William CROCKER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Eugene C. Hollander, Indianapolis, Ind., for appellant.
Linley E. Pearson, Atty. Gen., Ian A.T. McLean, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant William Crocker appeals his conviction of dealing in marijuana, a Class C felony.
The facts relevant to this appeal disclose that on July 27, 1988, Carl Overstreet, a paid confidential informant, told Sergeant Michael Wheeler that he had talked to a Rick Arion regarding purchasing marijuana. Arion told Overstreet to meet him at the home of appellant William Crocker.
Appellant's house was located at 723 Fifteenth Street in Logansport, Indiana. His house was diagonally across the street from the Tipton Elementary School. When Overstreet arrived at appellant's house, he spoke with Arion. The two men agreed to meet later at appellant's house again to exchange money for the marijuana. However, Arion told Overstreet that if he was not there when Overstreet returned, Overstreet should give the money to appellant who would give him the marijuana. Before Overstreet left he saw Arion give a package of marijuana to appellant, who put it on the kitchen table.
Overstreet then left appellant's house and called Sergeant Wheeler. The two men met and Wheeler searched Overstreet and his vehicle. Wheeler then gave Overstreet $50.00 and put a one-way transmitter on Overstreet.
When Overstreet returned to appellant's house, Arion was not present. Appellant expressed his uncertainty as to the price Arion was charging for the drug, but a friend of appellant's informed him that Arion wanted $45.00 for the quarter-ounce of marijuana.
Overstreet gave appellant $45.00 and appellant gave Overstreet the package of marijuana on the kitchen table. The police lab showed that the package contained a quarter-ounce of marijuana.
Appellant then asked Overstreet for a marijuana cigarette. After Overstreet had given him the cigarette, appellant asked Overstreet to forward him another cigarette on credit until the following Monday.
Appellant was found guilty of dealing in marijuana, a Class C felony.
The following issues have been raised by appellant:
(1) whether the trial court erred in granting the State's motion for continuance;
(2) whether there is sufficient evidence;
(3) whether the trial court impermissibly curtailed defendant's cross-examination;
(4) whether the trial court erred in refusing to allow the jury to consider the tape recording of the transaction; and
(5) whether defendant received ineffective assistance of counsel.
Appellant claims that the trial court erred in granting the State's request for a continuance. On the trial date, October 30, 1989, the parties appeared for trial. However, Carl Overstreet, a witness for the State, did not appear. The State asked for a continuance which was granted.
(1) containing the requirements of subsections (b)(1) and (b)(2) of section 1 of this chapter;
(2) showing that the absence of the witness has not been procured by the act of the prosecuting attorney;
(3) stating the facts to which he believes the witness will testify, and include a statement that he believes these facts to be true; and
(4) stating that the prosecuting attorney is unable to prove the facts specified in accordance with subdivision (3) through the use of any other witness whose testimony can be as readily procured.
Upon request of the defendant the court shall order that the prosecuting attorney's motion and official statement be made in writing.
(b) The trial may not be postponed if:
(1) after a motion by the prosecuting attorney because of the absence of a witness, the defendant admits that the absent witness would testify to the facts as alleged by the prosecuting attorney in his official statement in accordance with subsection (a)(3); or
(2) after a motion by the prosecuting attorney to postpone because of the absence of written or documentary evidence, the defendant admits that the written or documentary evidence exists."
Subsections (b)(1) and (b)(2) of section 1 require the prosecutor to show the name and address of the witness, if known, and indicate the probability of procuring the witness's testimony within a reasonable time. IND.CODE Sec. 35-36-7-1 (1988 Ed.).
The prosecutor stated that Carl Overstreet, a witness whose name is endorsed on the information, was not there. The prosecutor told the court that Overstreet would testify to the same effect as his deposition testimony and then elaborated on this testimony. He also told the court that he believed Overstreet's evidence would be true. The prosecutor sufficiently demonstrated that he would be unable to prove the facts to which the witness would testify through the use of any other witness. The defendant refused to stipulate that the witness would testify to the facts as alleged by the prosecuting attorney.
The State failed to show the address of the witness, if known. The prosecutor told the court that it was "uncharacteristic of Mr. Overstreet" to not appear; he personally notified him; and he paid him the required witness fee ahead of time. Although these statements prove that the absence of the witness had not been procured by the act of the prosecuting attorney, the appellant argues that it is not a sufficient indication that Mr. Overstreet could be procured to testify within a reasonable time.
IND.CODE Sec. 35-36-7-2 does not restrict the trial court's discretionary powers. Bates v. State (1988), Ind.App., 520 N.E.2d 129, 131. Id.
Thus, it was within the trial court's discretion to grant the continuance although the State failed to produce Overstreet's address, if known, and although the prosecutor's statements may not have been sufficient to show that Overstreet could be procured within a reasonable time. There was no abuse of discretion here. The defendant made no showing that he was in any way prejudiced by the granting of the continuance.
The appellant contends that there is insufficient evidence to sustain the conviction. Specifically, he is claiming that the State did not present sufficient evidence to rebut entrapment and that the State failed to prove that the sale occurred within 1,000 feet of a school.
Adamov v. State (1989), Ind., 536 N.E.2d 281, 283.
The appellant alleges that he was only a middle man in the transaction; he had no prior contacts with Overstreet; Overstreet was planning to deal with Arion; he had no predisposition to deal in drugs; he did not even know the price of the drug; and he only possessed 5.1 grams of marijuana, enough for personal use. The State, in turn, must introduce evidence which tends to show the level of police activity did not persuasively affect the free will of the accused and the accused was predisposed to commit the offense. Collins v. State (1988), Ind., 520 N.E.2d 1258, 1260.
The evidence presented at trial shows that Overstreet and Arion made arrangements for the deal at appellant's house. Arion then told Overstreet that if he was not at appellant's house when Overstreet returned, Overstreet should give the money to appellant and appellant would give Overstreet the marijuana. Overstreet witnessed Arion give the marijuana to appellant. When Overstreet returned to appellant's house, Arion was not present. Appellant told Overstreet that he did not know how much Arion was charging for the marijuana. After the price was established, appellant gave the marijuana to Overstreet in return for the money. Furthermore, appellant knew enough about dealing to know it was common for a buyer to give cash or a little bit of drugs to the person helping with the deal since appellant asked Overstreet for a marijuana cigarette. In fact, appellant asked Overstreet to give him another marijuana cigarette on credit. This evidence negates the possibility that Overstreet persuaded appellant to participate in the deal.
The appellant was convicted of dealing in marijuana, a Class C felony.
"(a) A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
marijuana, hash oil, or hashish, pure or adulterated;
* * * * * *
commits dealing in marijuana, hash oil, or hashish,...
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