Drollinger v. State

• Decision Date: 05 September 1980
• Docket Number: No. 1178S262,1178S262
• Parties: Roger C. DROLLINGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1084

409 N.E.2d 1084

274 Ind. 99

Roger C. DROLLINGER, Appellant, v. STATE of Indiana, Appellee.

No. 1178S262.

Supreme Court of Indiana.

Sept. 5, 1980.

Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Roger C. Drollinger was charged in Montgomery Circuit Court in two informations with the following six counts: two counts of delivery of marijuana, Ind.Code § 35-24.1-4.1-10 (Burns 1975); one count of delivery of methamphetamine, a Schedule II substance, § 35-24.1-4.1-2; two counts of delivery of phendimetrazine, a Schedule III substance, § 35-24.1-4.1-2; and one count of delivery of phentermine, a Schedule IV substance, § 35-24.1-4.1-3. These deliveries were made in March and July of 1976, to two undercover State Police officers, Dale Conrad and Reginald Shireman. The two informations were consolidated for trial. Drollinger was tried to a jury in February, 1977, and found guilty on all counts. As a result of these convictions, Drollinger was sentenced to two one-hundred-eighty-day terms, one twelve-year term, two fifteen-year terms, and one six-year term. The trial court ordered these terms to be served concurrently. Appellant Drollinger was also fined in the aggregate amount of three thousand dollars.

Drollinger raises five issues on this appeal, concerning: (1) whether the trial court erred in admitting two exhibits into evidence; (2) whether the trial court erred in refusing to allow certain testimony from witness William Norris; (3) whether the trial court erred in allowing the prosecutor to cross-examine Drollinger concerning previous charges which had been filed against him; (4) whether the trial court erred in allowing witness James McGivney to testify as to a conversation he had with Drollinger; and (5) whether the trial court erred in refusing to give one of the defendant's tendered instructions.

I.

Appellant Drollinger first argues that State's Exhibits numbers one and two should not have been admitted into evidence. These items consisted of the phentermine tablets and some of the marijuana which an undercover police officer purchased from Drollinger in March, 1976. Appellant claims the State did not prove a sufficient chain of custody of these articles to permit their introduction into evidence.

State Police Officer Dale Conrad testified that he purchased the marijuana on March 17, 1976. After receiving the bag from Drollinger, he placed it in his pocket. He later transferred the bag of marijuana to an evidence bag, upon which he placed his initials. Conrad then placed the bag in his briefcase, and placed the briefcase in the trunk of his automobile. Both the briefcase and the trunk were locked. He transferred the marijuana to a State Police Chemist, George Smith, on March 19, 1976. The automobile remained in his possession during the time the briefcase was kept in the trunk. Officer Conrad purchased the phentermine on March 24, 1976. He followed the same procedure with the phentermine, locking the drugs in his briefcase and locking his briefcase in the trunk of his car. Conrad turned over this evidence to George Smith at the State Police laboratory on March 30, 1976. Smith tested the substances given to him and found them to contain marijuana and phentermine, respectively. Conrad testified that these exhibits were the same items which he had purchased from Drollinger, and Smith testified that they were the same items which Conrad gave to him and which he tested and returned to Conrad prior to trial.

We believe the testimony of these witnesses "strongly suggests the exact whereabouts of the evidence at all times," and provided the necessary assurance that the evidence "passed through the various hands in an undisturbed condition." Lewandowski v. State, (1979) Ind., 389 N.E.2d 706, 710, quoted in Holt v. State, (1980) Ind., 400 N.E.2d 130, 131. See Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d 652. The trial court did not err in admitting these exhibits into evidence.

II.

Appellant next contends the trial court improperly refused to allow testimony from defense witness William Norris. Drollinger's defense in this case was a modified version of the entrapment defense. He claimed that a Crawfordsville police officer, Louis Swenke, forced Drollinger, under threat of imprisonment and harm to his family, to sell drugs for Swenke. Drollinger claimed that this "negative inducement" amounted to entrapment. William Norris was offered as a defense witness in support of this theory. Under preliminary questioning by the prosecutor, Norris admitted that he did not know Drollinger, that he had not had any contact with Swenke in several years, and that he had no knowledge of the facts of this case. The trial court then sustained the prosecutor's objection to Norris' proposed testimony. According to defense counsel's offer to prove, Norris would have testified that Swenke was involved in drug traffic and had, at one time, pressured him and other persons to participate in the drug traffic.

We think the trial court properly rejected this evidence. Even assuming that competent evidence to support appellant's theory would constitute a valid entrapment defense, the trial court properly concluded that this witness could have provided no such competent evidence in this case. An entrapment occurs where a government agent or someone working for him, such an an informant, induces or persuades the defendant to commit the charged crime. The defendant must not have had any predisposition to commit the crime. Merely affording the accused the opportunity to commit the crime does not constitute entrapment. Stewart v. State, (1979) Ind., 390 N.E. 1018, 1021; Cyrus v. State, (1978) Ind., 381 N.E.2d 472, 473-74; Hutcherson v. State, (1978) Ind., 380 N.E.2d 1219, 1221. See Hall v. State, (1980) Ind., 403 N.E.2d 1382. Appellant argues that Norris' testimony would have shown a common scheme or plan on Swenke's part. Such a showing might be relevant if Swenke were on trial, but not in this case. Appellant asserts that evidence that Swenke somehow forced persons to sell drugs in the past would be probative on the question of whether he acted in a similar fashion on this occasion, and therefore, relevant to show that Drollinger was entrapped here. A showing of previous similar behavior not related to these transactions would have had no more of a valid purpose than if the prosecution had offered evidence of Drollinger's unrelated drug dealings to prove guilt of the charged crimes. Whether Drollinger was entrapped by Swenke in this case depends, in part, on Swenke's behavior with respect to Drollinger and these particular drug transactions, and does not depend on Swenke's alleged actions with respect to other persons several years earlier. The jury must decide whether a defendant was the victim of entrapment by examining the facts of the case before it, not by speculation. See Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509. Norris, by his own admission, could provide no evidence of what occurred in this case. For these reasons, the trial court did not abuse its discretion in refusing to allow Norris to testify.

III.

Appellant Drollinger argues the prosecutor should not have been allowed to cross-examine him concerning prior convictions and pending charges. Drollinger testified in his own defense and explained how he concluded that Officer Swenke and other police officers had harassed him and were "out to get" him. On direct examination, Drollinger acknowledged that the probable cause affidavits in the present case had been signed by Officer Conrad and Officer Shireman. However, he testified that Officer Swenke had signed every other probable cause affidavit that had been filed against him. He specifically mentioned, among others, a forgery charge of which he was apparently acquitted. On cross-examination, the prosecutor again asked Drollinger if Swenke had signed all of the probable cause affidavits filed against him and Drollinger again said he had. The prosecutor then singled out specific charges which, at one time or another, had been filed against Drollinger, and asked him if Swenke signed the probable cause affidavit in each of those cases. Appellant objected to the admission of any evidence concerning unrelated charges, citing Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210.

The trial court properly admitted this evidence. Drollinger's defense was based upon his claim that Swenke had, by duress, coercion and harassment, entrapped him into dealing in drugs. Swenke's involvement with and relation to Drollinger was brought up during Drollinger's testimony to support this theory. His testimony that Swenke had signed all the probable cause affidavits against him was calculated to persuade the jury that, as Drollinger claimed, Swenke had been harassing him for several years. The prosecution was merely refuting this theory on cross-examination by challenging Drollinger's assertion. A defendant may not open an issue and have it closed at his convenience. Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239, 1241; Fortson v. State, (1978) Ind., 379 N.E.2d 147, 153. See Porter v. State, (1979) Ind., 391 N.E.2d 801, 806. The trial court did not abuse its discretion in allowing this cross-examination. See Ashbaugh v. State, (1980) Ind., 400 N.E.2d 767, 772; Gutierrez v. State, (1979) Ind., 395 N.E.2d 218, 223.

IV.

Drollinger next claims the trial court erroneously admitted certain testimony from rebuttal witness James...