Crull v. State, 48S00-8802-CR-220

• Decision Date: 07 July 1989
• Docket Number: No. 48S00-8802-CR-220,48S00-8802-CR-220
• Court: Indiana Supreme Court
• Parties: Dwayne CRULL, Appellant (Defendant Below) v. STATE of Indiana.

Page 1195

540 N.E.2d 1195

Dwayne CRULL, Appellant (Defendant Below) v. STATE of Indiana.

No. 48S00-8802-CR-220.

Supreme Court of Indiana.

July 7, 1989.

Marianne Woolbert, Al S. Woolbert, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Dwayne Crull was convicted following a jury trial in the Madison County Superior Court Division I of two counts of Dealing in a Narcotic Drug, Cocaine, Three Grams or More, for which he received terms of thirty (30) years on each count, with five (5) years suspended (Crull was placed on probation for those five years). He was further sentenced to two (2) years for Maintaining a Common Nuisance. All sentences were ordered to run concurrently.

The only issue presented for review in this direct appeal is whether the trial court erred in denying Crull the right to cross-examine the key witness, a civilian informant, as to his current residence, employment, and other personal matters, that would allow the jury to judge the credibility of his testimony in light of his environment. This informant was the only person to verify that Crull committed the alleged crime, and his testimony would determine Crull's fate.

The facts tend to show that this cause of action originated on June 26, 1986, after an investigation was conducted by the Madison and Grant County Sheriff's Departments of alleged drug trafficking in these counties. This investigation began in late 1985 and continued until a drug raid was conducted on the night of June 26, 1986.

During the course of the investigation, both Sheriff's Departments worked together and, through civilian informers, made controlled buys from individuals suspected of drug trafficking. The two informants used in the case at bar were drug abusers who had turned State's evidence in the past to work off charges pending against them for illegal drug activity. According to the two informants, each had made a controlled buy of three grams or more of cocaine from Crull on four separate occasions. Witness Edward Dale Moore, one of the civilian informers, testified about the two purchases of cocaine he made from Crull in January, 1986. Crull was acquitted of these two charges. The question here involves the second civilian informer, Marc Forman. His testimony was that he had purchased three grams or more of cocaine from Crull on June 4 and 5, 1986. Forman testified he went to Crull's apartment on each of those days and made a controlled buy of three grams or more of cocaine from Crull. The evidence showed the police furnished him with marked money and he was searched to determine that he had no cocaine in his possession when he went into the apartment. The Sheriff's Departments did not use any form of electronic surveillance to verify Crull's presence inside the apartment where the alleged drug transaction took place. Neither did they send an undercover agent in with Forman to verify Crull's participation in the alleged transaction. No video was made of the alleged "buy." The testimony was that Crull was not seen at the alleged transaction site by any police officer. The only person testifying to Crull's presence at the site and the two sales of cocaine was witness Forman.

At the probable cause hearing, investigative officers of both counties presented evidence that Crull lived in the small town of Summitville, Indiana, and worked at various jobs around the State as a laborer with Laborers International Union of North America, Local 112, out of Muncie, Indiana. The investigative officers also presented evidence that Crull was the largest cocaine dealer in the two county area, selling approximately sixty thousand dollars ($60,000) to one-hundred thousand dollars ($100,000) worth of cocaine a week. The officers further alleged Crull, who had family in Georgia which he visited from time to time, had quick access to large sums of money and was transient, disappearing from the Summitville area for days at a time.

An arrest warrant was issued for Crull and on the night of June 26, 1986, the Madison and Grant County Sheriff's Departments conducted a drug raid in both counties, arresting several individuals, including Crull. The officers arrested Crull, impounded two cars owned by him, and a safe. The safe was believed to be where the money from the lucrative cocaine sales were kept, as well as large amounts of cocaine Crull was purported to have. Upon opening the safe the officers found personal papers, scales, seeds, and less than twenty dollars ($20) in loose change. No cocaine was found in the safe, in the cars, in Crull's home or on his person. The marked money sent in with Forman was not found in any of those places.

Witness Forman testified he became an informant for the police prior to this incident as the result of his arrest for a drug violation. He agreed to act as an informant for the police in exchange for the dismissal of his criminal charge. He claimed he did undercover work for the police that paid his debt to them and was no longer obliged to do undercover work but continued to do so as he felt it was his patriotic duty. That was the nature of his involvement in the instant case.

During cross-examination, defense counsel asked Forman where he lived and where he was employed. Apparently the witness had been living out of the State of Indiana for a period of about a year and was working for a company in another state for approximately three months. He refused to give any testimony about his place of residence other than to state it was not in Indiana, and limited his testimony about employment to the fact that he sold gold products. He would not identify his employer because that would reveal the state of his residence. He stated this information would allow him to be located and that such information was "not anybody's business here." The State objected to defense counsel's questioning the informant as to his exact address or location, claiming the informant was frightened and that was why he did not wish to disclose an exact address. The court excused the jury for recess and heard counsel's arguments regarding questions of this witness of a personal nature, such as address, place of employment, family, and other background information.

With the court's permission, the State examined Forman at which time he stated he was not living in Indiana and requested he not be required to answer questions about his whereabouts because threats had been communicated to him by "some fellow in Summitville" that Crull's father and friends would do him harm. He claimed he could not even answer general questions on cross-examination about what type of work he did without jeopardizing his safety. The only information he gave was that the company was not located in Indiana, had been in business for approximately one year, and that he had not known about the company prior to leaving Indiana.

Defense counsel questioned the witness about his prior deposition testimony in which he gave his place of residence and employment at that time and stated he was not afraid of Crull. He stated at this hearing that he was not afraid of Crull directly but was afraid of possible connections that Crull and his family might have. The court sustained the State's objection based on relevancy. The court stated it was difficult to imagine that this information would have any possible relevance to either credibility or substantive charges and went on to state that this type of information was so tangential and attenuated there was no reason to permit defense counsel to ask these questions.

The court further noted it did not have the slightest idea whether the key witness informant was in any danger but was relying solely on the informant's testimony that he was frightened. The court then instructed defense counsel to refrain from asking any questions of this witness about his present employment, current location, family situation, or any matters along those lines. Defense counsel offered to conduct a hearing to determine if there was an actual threat made to the key witness informant or if he was relying on mere conjecture in stating he was afraid. The court denied defense counsel's offer, stating there would be no purpose served by such inquiry and reiterating it was not concerned where the informant currently lived and worked since it was of no relevance to the alleged crime that occurred a year before. Defense counsel was allowed to cross-examine the witness in these areas only within the time frame of these charges, June 4 and 5, 1986.

The United States Supreme Court decided this issue nearly sixty years ago in the case of Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. Alford was charged with using the mails with intent to defraud. A witness for the government was a former employee of Alford. On direct examination he gave damaging testimony with respect to various transactions of the accused, including conversations with the witness when others were...