Dockery v. State, 18A02-9302-CR-78
| Citation | 622 N.E.2d 1346 |
| Decision Date | 22 November 1993 |
| Docket Number | No. 18A02-9302-CR-78,18A02-9302-CR-78 |
| Parties | Carl R. DOCKERY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Geoffrey A. Rivers, Muncie, for appellant-defendant.
Pamela Carter, Atty. Gen., Deana M. McIntire, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Carl Dockery appeals from his conviction for dealing in cocaine as a class B felony. 1 We reverse and remand for a new trial.
Dockery raises four issues for our review, but we need address only the dispositive issue of whether an unfair trial resulted from allowing into evidence testimony that Dockery had committed crimes for which he had not been charged.
The facts most favorable to the judgment reveal the following. On the evening of April 13, 1992, Officer Craig of the Muncie City-Delaware County Drug Task Force and a confidential informant were working undercover when the informant introduced Officer Craig to a man named William Jackson. Officer Craig told Jackson that he wanted to purchase an "eight-ball" of cocaine 2 and Jackson told Officer Craig that he could take care of him. Jackson got into the vehicle with Officer Craig and the informant and directed Officer When the three arrived at the house, which turned out to be Dockery's girlfriend's residence, Jackson got out of the car, walked up to the house, returned a few minutes later and asked Officer Craig for $250.00. When Officer Craig declined to hand over the money until he had the cocaine, Jackson returned to the house. A few minutes later, Jackson came back to the car and instructed Officer Craig to drive around for a few minutes while his man weighed the cocaine. The three men rode around for about ten minutes and then returned to the same house. Jackson got out of the car, walked up to the house and returned a few minutes later with Dockery.
Craig to a house just east of the intersection of Kirby and Ebright in Muncie.
Jackson and Dockery approached the passenger's side of the car and "they" asked Officer Craig for the purchase money. Record at 246. Officer Craig responded by asking to see the cocaine first. When either Jackson or Dockery asked Officer Craig if he in fact had any money, Officer Craig gave $250.00 to the informant, who was sitting in the passenger's seat. Officer Craig turned on the dome light and the informant counted out $250.00 in front of Jackson and Dockery. Dockery then reached in through the passenger window and handed Officer Craig a small plastic bag containing eleven small white cocaine rocks weighing 2.89 grams. The informant in turn held the $250.00 out the window. Jackson took the money, gave it to Dockery and the two walked away. When Jackson returned to the car, Officer Craig took him back to where he had originally picked him up and left him.
Officer Craig wore a transmitter on his person during the drug transaction involving Dockery. Tape recordings of that transaction were subsequently made and Officer Craig listened to the tape twice prior to trial. According to Officer Craig, the only words spoken by Dockery during the entire sale were "thank you, cuz, or thanks cuz, or something to that effect." Record at 253. 3
On May 22, 1992, Dockery was charged with dealing in cocaine. On June 5, 1992, Dockery filed a motion in limine to exclude from evidence and prohibit any reference at trial to, among other things, any previous arrest or detention of him which did not result in a conviction, or any other alleged offenses purportedly involving him in which he was neither arrested nor charged. Record at 16. On June 8, the trial court granted Dockery's motion in limine. On October 2, 1992, in response to the state's request for discovery, Dockery indicated his intention to plead the defense of entrapment. On October 13, 1992, following a jury trial, Dockery was found guilty as charged.
Dockery claims he received an unfair trial because the trial court allowed into evidence testimony regarding other crimes he had allegedly committed but the state had not pursued. We agree.
The entrapment statute 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."
The defense of entrapment becomes available to a defendant when the prohibited conduct was the result of a law enforcement officer or his agent persuading the defendant to engage in the conduct and the defendant was not predisposed to In our case, the state chose to negate Dockery's defense of entrapment by proving that Dockery was predisposed to commit the crime of dealing in cocaine. To establish Dockery's predisposition, the state may have used both evidence of events at the time of the drug transaction as well as circumstantial evidence. Johnston v. State (1988), Ind., 530 N.E.2d 1179. Relevant factors which would have indicated Dockery's predisposition might have included his "knowledge of prices and sources, possession of large quantities of the narcotic, ability to obtain access to narcotics in a short time, willingness to engage in future transactions, eagerness in the transaction in question and knowledge of slang...." Id. at 1181.
commit the offense. Gilley v. State (1989), Ind., 535 N.E.2d 130, 131. Once the defendant raises the defense of entrapment, the state must prove either that the accused's prohibited conduct was not the product of the efforts of the law enforcement official involved or that the accused was predisposed, or "ready, willing and able," to engage in such conduct anyway. Gray v. State (1991), Ind., 579 N.E.2d 605, 609; Mack v. State (1983), Ind., 457 N.E.2d 200. The question of entrapment is a factual one for the jury to determine, and on review, we will neither reweigh the evidence nor rejudge the credibility of the witnesses. Gilley, supra
During Dockery's cross examination of Officer Craig and during his own direct examination, Dockery attempted to establish the defense of entrapment. First, Officer Craig testified during cross examination that he had paid Jackson $20.00 after the drug transaction took place. Second, Dockery testified that he had been harassed into selling cocaine to Officer Craig by his old friend Jackson.
The state attempted to negate Dockery's defense of entrapment by establishing Dockery's predisposition to deal in cocaine. To do so, the state introduced evidence of other crimes that Dockery had allegedly committed but which the state had not pursued for a variety of reasons. The record reveals that, at trial, the state was permitted, over objection, to cross-examine Dockery as follows:
Q. Mr. Dockery, this isn't the first time you've been involved in a drug transaction, is it?
A. Have I been involved in a drug transaction?
Q. Yes. You've been involved in drug transactions before, haven't you?
A. Yes, once before.
Q. When was that?
A. It was '89.
Q. Where was it? ... Where were you when this drug transaction took place?
[DEFENSE COUNSEL]: Your Honor--
A. I wasn't in no drug transaction.
Q. Let me help you out[.] Weren't you in Room 112 of the Days Inn on North Broadway?
A. Oh, okay. I know what you're talking about now. No, I wasn't in no drug transaction.
Q. You weren't there?
A. I was at the motel, yes.
Q. What were you doing there?
A. I was in the process of moving.
* * * * * *
Q. Didn't the police break in and take some marijuana away from you?
A. Yeah, a gram of marijuana, yes.
* * * * * *
Q. And at that time did you also give the police permission to search [your] car, [an] Audi?
A. Yes, sir.
Q. And what did they find?
* * * * * *
Q. Pistol grip shotgun?
A. Yeah.
Q. Why were you carrying a pistol grip shotgun at that time?
A. That's what I said. I was in the process of moving and I had nowhere to leave it. I put it in my trunk. At the time I didn't know that a pistol grip shotgun was considered a pistol instead of a shotgun. I didn't know until then. Or I wouldn't never of had it if I knew that.
* * * * * *
Q. Have you ever been convicted of any felonies?
A. No, sir.
Q. Have you ever been convicted of any drug dealings whatsoever?
A. No, sir.
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Dockery v. State
...SULLIVAN, Justice. 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 c......