Dockery v. State
| Decision Date | 19 December 1994 |
| Docket Number | No. 18S02-9412-CR-1229,18S02-9412-CR-1229 |
| Parties | Carl R. DOCKERY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Rebecca S. McClure, Chairman, Lebanon, Stephen J. Johnson, Indianapolis, for amicus curiae Indiana Pros. Attys. Council.
ON PETITION TO TRANSFER
This case comes to us on the State's Petition to Transfer the decision of the Court of Appeals in Dockery v. State (1993), Ind.App., 622 N.E.2d 1346, reh'g denied. In that decision the Court of Appeals reversed Carl Dockery's conviction for Dealing in Cocaine because it concluded that the trial court improperly admitted evidence of prior bad acts offered by the State to rebut Dockery's entrapment defense. We agree with the Court of Appeals that Dockery's conviction must be reversed; we disagree, however, about the reasons why.
On October 13, 1992, a Delaware County jury convicted Carl Dockery of Dealing in Cocaine, a Class B felony. 1 Dockery was sentenced to six years in prison.
The facts in the record most favorable to sustaining the verdict are that on April 13, 1992, an informant introduced Officer Craig of the Delaware County Drug Task Force to William Jackson. Officer Craig told Jackson that he wanted to purchase an "eight-ball" 2 of cocaine. Jackson said that he could take care of him.
Jackson got into the car with Officer Craig and the informant and directed them to a house where Dockery's girlfriend lived. Once at the house, Jackson got out of the car, returned from the house a few minutes later, and asked Officer Craig for two hundred and fifty dollars. Officer Craig refused to hand over any money until he had the cocaine, so Jackson went back into the house.
When Jackson came back out to the car again, he told Officer Craig to drive around for a while to give his man time to weigh the cocaine. After driving around the neighborhood for about ten minutes, Officer Craig drove the car back to the same house, where Jackson again got out of the car and went inside the house. A few minutes later Jackson returned to the car accompanied by Dockery.
Both Dockery and Jackson walked up to the passenger side of the car and "they ... requested the money." Officer Craig said that he wanted to see the cocaine first. Jackson then asked Officer Craig if he in fact had any money, at which time Officer Craig gave two hundred and fifty dollars to the informant, who was sitting in the passenger's seat. Officer Craig turned on the car's dome light and the informant counted the money in front of Dockery and Jackson.
When the money had been counted, Dockery reached in the passenger-side window and handed Officer Craig a small plastic bag that contained eleven white rocks of cocaine that together weighed 2.89 grams. The informant then handed the money out the window to Jackson, who gave it to Dockery, and both Jackson and Dockery walked away.
Officer Craig testified that in preparation for Dockery's trial he had listened to audiotapes of the entire transaction and that the only words spoken by Dockery were "Thanks, cuz."
In May of 1992, Dockery was charged with Dealing in Cocaine. In June, Dockery filed a motion in limine to exclude, inter alia, any evidence of his previous arrest or detention that did not result in a conviction, and any evidence of other offenses in which he was allegedly involved but for which he had been neither charged nor arrested. The trial court granted that motion.
Shortly before trial in October of 1992, in response to the State's request for discovery, Dockery indicated his intention to raise the defense of entrapment. During the State's cross-examination of Dockery at trial, the trial court lifted its order on Dockery's motion in limine and permitted the State to cross-examine Dockery with respect to certain previous events. 3
Over repeated objections of defense counsel, Dockery testified on cross-examination that in 1989 he was in a motel when the police broke into the room and seized an ounce of marijuana. He also testified that he gave police permission to search his car, where they found a pistol-grip shotgun in the trunk. By way of explanation, Dockery said that he had been in the process of moving, did not have anywhere else to keep the shotgun, and did not know that a pistol-grip shotgun was legally classified as a pistol and not as a shotgun.
To further rebut Dockery's entrapment defense, the State called as a witness Officer Robert Pyle, also of the Delaware County Drug Task Force. Officer Pyle had been involved in the 1989 seizure of marijuana in Dockery's motel room and of the pistol-grip shotgun from Dockery's car. Over repeated objections of defense counsel, Officer Pyle testified about those events and said additionally that the case had not been pursued both because the prosecutor was not interested in the case and because his partner had been killed and thus would not have been available to testify.
Officer Pyle also testified over objection about a second incident, this time in June of 1990, when Dockery allegedly sold rock cocaine to a confidential informant. He said that that case against Dockery had not been pursued because the confidential informant was "kidnapped by some other dopers." On cross-examination by defense counsel Officer Pyle said that he was the cover officer for this particular operation and so, although he had been nearby, he had not actually been present at this alleged transaction between Dockery and the informant.
The decision of the Court of Appeals relied in part on Federal Rule of Evidence 404(b), which we adopted in Lannan v. State (1992), Ind., 600 N.E.2d 1334. Lannan was explicit, however, that the adoption of Federal Rule of Evidence 404(b) was not to be given retroactive effect. Lannan, 600 N.E.2d at 1339. Dockery's trial ended on October 13, 1992, and Lannan was not decided until October 16, 1992. Lannan, 600 N.E.2d at 1334. Moreover, in Pirnat v. State (1992), 600 N.E.2d 1342, reh'g denied (1993), 607 N.E.2d 973 (per curiam), after remand (1993), Ind.App., 612 N.E.2d 153, reh'g denied, decided the same day as Lannan, we said:
We have today in Lannan v. State, 600 N.E.2d 1334 (1992), revisited the depraved sexual instinct exception and announced a new rule concerning the admissibility of prior bad acts in sex offense cases. Inasmuch as Pirnat's direct appeal is currently pending as this rule is announced, the rule of Lannan should be applied to his case.
Id. at 1342 (citations omitted) (emphasis added). Accord, Wickizer v. State (1993), Ind., 626 N.E.2d 795, 796. Although coming to us as part of the direct appeal process, Dockery's case does not involve a sex offense. Lannan and Federal Rule of Evidence 404(b) do not apply. 4 Therefore, the law of evidence applicable to Dockery's case is that in effect prior to Lannan 's adoption of Federal Rule of Evidence 404(b). 5 The issue we must decide, then, is whether under the pre-Lannan law of evidence, the trial court committed reversible error when it admitted evidence of prior bad acts offered by the State to rebut Dockery's defense of entrapment.
In Indiana, entrapment is a defense provided for by statute. Indiana Code § 35-41-3-9 (1993) provides:
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
Once a defendant has both indicated his intent to rely on the defense of entrapment and has established police inducement, the burden shifts to the State to show the defendant's predisposition to commit the crime. Smith v. State (1991), Ind., 565 N.E.2d 1059, 1063; Wallace v. State (1986), Ind., 498 N.E.2d 961, 964; Ryan v. State (1982), Ind., 431 N.E.2d 115, 117; Townsend v. State (1981), Ind.App., 418 N.E.2d 554, 558, trans. denied, cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982). Whether a defendant was predisposed to commit the crime charged is a question for the trier of fact. Gilley v. State (1989), Ind., 535 N.E.2d 130, 132; Gossmeyer v. State (1985), Ind., 482 N.E.2d 239, 241; Marts v. State (1982), Ind., 432 N.E.2d 18, 22. The standard by which the State must prove the defendant's predisposition is beyond a reasonable doubt. Gray v. State (1991), Ind., 579 N.E.2d 605, 609, reh'g denied; Mack v. State (1983), Ind., 457 N.E.2d 200, 202; Ryan, 431 N.E.2d at 117. The State must prove the defendant's predisposition with evidence subject to the normal rules of admissibility. Stewart v. State (1979), 271 Ind. 169, 173, 390 N.E.2d 1018, 1022; Koke v. State, (1986), Ind.App., 498 N.E.2d 1326, 1330 n. 3, reh'g denied, trans. denied; Medvid v. State (1977), 172 Ind.App. 27, 30, 359 N.E.2d 274, 276, reh'g denied, trans. denied. If the defendant shows police inducement and the State fails to show predisposition on the part of the defendant to commit the crime charged, entrapment is established as a matter of law. Hardin v. State (1976), 265 Ind. 635, 639, 358 N.E.2d 134, 136; Gray v. State (1967), 249 Ind. 629, 633-34, 231 N.E.2d 793, 796; Fearrin v. State (1990), Ind.App., 551 N.E.2d 472, 474, trans. denied. In Gray we also said that when the evidence establishes no more than a sale or delivery of contraband in response to solicitation by the police or their agents, there is a failure of proof on the issue of predisposition. Gray, 249 Ind. at 633-34, 231 N.E.2d at 796. See also Voirol v. State (1980), Ind.App., 412 N.E.2d 861, 864, trans. denied; Medvid, 172 Ind.App. at 29, 359 N.E.2d at 275.
We review a claim of entrapment using the same standard that applies to other...
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