Fassoth v. State

• Decision Date: 07 July 1988
• Docket Number: No. 64S00-8612-CR-1068,64S00-8612-CR-1068
• Citation: 525 N.E.2d 318
• Parties: Monica FASSOTH, Roy Watson, Dennis Watson, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 318

525 N.E.2d 318

Monica FASSOTH, Roy Watson, Dennis Watson, Appellants, v. STATE of Indiana, Appellee.

No. 64S00-8612-CR-1068.

Supreme Court of Indiana.

July 7, 1988.

Joseph N. DiNatale, Oak Park, for Monica Fassoth and Roy Watson.

Charles R. Deets III, Thomas J. O'Brien, Heide Sandy Deets & Kennedy, Lafayette, for Dennis Watson.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Michael Gene Worden, Deputy Attys. Gen., Indianapolis, for State.

GIVAN, Justice.

A jury trial resulted in appellants' convictions as follows:

Monica Fassoth was convicted of Dealing in Cocaine, a Class A felony, for which she received a sentence of twenty (20) years.

Roy Watson was convicted of Delivery of Cocaine, a Class A felony, for which he received a sentence of forty (40) years, Possession of Cocaine with the Intent to Deliver, a Class A felony, for which he received a sentence of forty (40) years, and Possession of Marijuana with the Intent to Deliver, a Class C felony, for which he received a sentence of eight (8) years, the sentences to run concurrently.

Dennis Watson was convicted of Aiding in the Delivery of Cocaine, a Class A felony, for which he received a sentence of twenty (20) years.

The facts are: In October of 1985, Officer Mike Krawczyk was employed as an investigator for the Porter County Narcotics Unit. He called William Fassoth on October 2, 1985 to inquire about obtaining drugs. Fassoth told Krawczyk that he would have to talk to his source, whom he later called "Roy" on several occasions, to determine the availability and cost of the drugs. Later, they arranged to meet in a White Castle parking lot to consummate the transaction.

When Krawczyk met Fassoth, he was wearing a hidden transmitter and tape recorder, and Officer O'Kelly, also at the White Castle, was equipped with a receiving unit which allowed her to hear the conversation between Fassoth and Krawczyk. Upon Fassoth's suggestion, they drove two cars to the Smokey Joe's Restaurant parking lot in Portage, Indiana. Krawczyk gave Fassoth $580 and Fassoth told him to wait there for his return in a few minutes.

Upon Fassoth's return Krawczyk got into Fassoth's car. Fassoth gave Krawczyk a clear plastic bag of white powder and offered him a good deal on an ounce of cocaine.

On October 3, 1985, Fassoth delivered one ounce of cocaine to Krawczyk for which he was paid $2,160. Krawczyk purchased $1,800 worth of cocaine from Fassoth and his wife Angela on October 18, 1985 and they discussed the possibility of purchasing a large quantity of cocaine.

On November 11, 1985, Fassoth sold Krawczyk one quarter-pound of cocaine for $6,800. After this transaction, police arrested Fassoth and his wife. At this time, Fassoth and his wife agreed to cooperate with police in their effort to arrest the source, appellant Roy Watson. Fassoth agreed to wear a hidden listening device and continue the transaction for the sale of $52,000 worth of cocaine.

Fassoth received use immunity and testified that during October and November of 1985 his sister, appellant Monica Fassoth, was living with appellant Roy Watson. He stated that the supplier of cocaine for each of his drug deals with Krawczyk was appellant Roy Watson, who received the money for the sales.

In addition to corroborating Krawczyk's testimony about the drug sales, Fassoth gave a detailed description about the transaction which occurred on November 11, 1985 for which he was to receive $1,000 for his efforts.

On that date, appellant Roy Watson told William Fassoth to meet Krawczyk and find out whether he had the money before he brought "the stuff." At their meeting, Krawczyk produced $6,800 and Fassoth returned to appellant Roy Watson's home with the money. Watson then announced that the plans previously made to conduct the drug sale were to be changed. Watson gave Fassoth four ounces of cocaine which he delivered to Krawczyk. It was at that time William Fassoth and his wife were arrested, and they decided to aid police.

William Fassoth then spoke to Roy Watson on the phone and was directed to meet his sister, Monica Fassoth, at the County Market. When Fassoth met his sister, he was wearing a hidden transmitter and recording device. They drove to Watson's mother's apartment, and Roy and Dennis Watson were waiting for them in the parking lot. They all entered the apartment, ate, and exited for the Holiday Inn. Outside the apartment building, Dennis Watson told William Fassoth to "[b]e careful". At that time, Fassoth noticed a blue Samsonite suitcase in the back seat of the Cadillac which his sister was driving. Inside a hotel room, they decided that William Fassoth was to obtain one-half of the money from Krawczyk then give him one-half of the cocaine.

William and Monica Fassoth then met Krawczyk in the County Market parking lot. William told Krawczyk that he was to pay $26,000, or one-half of the amount negotiated, Monica would give him one-half of the cocaine, and they would further negotiate as to performing the balance of their contract. When William was talking with Krawczyk, Dennis Watson drove his car alongside the Cadillac and scanned the parking lot. At that point, police arrested Monica Fassoth and Dennis Watson and simulated arresting William and Angela Fassoth. The Samsonite suitcase contained 498.2 grams of 88.6 percent cocaine powder.

Roy Watson was arrested in the hotel room. Cocaine spoons, roach clips, a cocaine diluting agent, and other paraphernalia were found in a leather case located in the hotel room.

Pursuant to a search warrant, police searched the residence of appellants Monica Fassoth and Roy Watson. They found a triple beam scale, cocaine and marijuana.

Appellants Monica Fassoth and Roy Watson argue that they were deprived of a fair trial due to the improper restriction of their cross-examination of William Fassoth. The basis of their argument is twofold. They contend they were unduly limited in questioning Fassoth about plea negotiations or potential sentences for offenses which Fassoth and his wife had been charged, and that the trial court erroneously prohibited them from questioning Fassoth about his past criminal conduct.

Prior to trial, the court granted the State's motion in limine which precluded appellants from inquiring about evidence of any specifics of offers or counteroffers concerning plea agreements. However, the court stated it would not preclude cross-examination about whether plea negotiations had occurred or about the witness's motivation for testifying. Appellants assert that the limitation of the right to cross-examine William Fassoth violated their Sixth Amendment right of confrontation.

The trial judge has discretion to determine the scope of cross-examination, and only a clear abuse of that discretion warrants a reversal. Carter v. State (1987), Ind., 505 N.E.2d 798.

We held in Jarrett v. State (1986), Ind., 498 N.E.2d 967 (Givan and Pivarnik, JJ., dissenting) that significant harm results when the jury is prevented from learning the extent of benefit received by witnesses who accept a plea bargain in exchange for their testimony, and the exposure of a witness's motivation in testifying is an important function of the constitutionally protected right of cross-examination.

In appellant's case, Fassoth received no plea bargain in exchange for his testimony. The jury heard evidence that when Fassoth was arrested police told him that although they could not make any promises, they would make a recommendation to the prosecutor if Fassoth would finish the drug sale. Fassoth stated he was testifying pursuant to a court order under a grant of use immunity. Also he testified that he twice spoke to police about the plea bargain offered to his wife, and when asked what he expected to get from his testimony, he said he did not know.

We find that the jury was fully apprised of the circumstances surrounding Fassoth's testimony. The court did not err in disallowing questioning regarding a nonexistent plea agreement. Hatchett v. State (1987), Ind., 503 N.E.2d 398.

During cross-examination, appellants asked Fassoth whether he was convicted of a crime in 1974, and the State objected. Away from the jury, the trial court stated that Fassoth's criminal history included his convictions of theft of goods under $100, fleeing the police, carrying a gun without a permit, and possession of stolen property, all arising out of one arrest in 1974. Determining that all offenses were misdemeanors except for possession of stolen property, the trial court sustained the State's objection to all prior offenses except the possession of stolen property conviction. When cross-examination resumed, appellants asked Fassoth whether he was convicted of possession of stolen property, and he said, "yes". Appellants believe that their Sixth Amendment rights were violated when the trial court partially sustained the State's objection.

A witness may be cross-examined for impeachment purposes about prior criminal conviction of infamous crimes or crimes of dishonesty. Brown v. State (1984), Ind., 459 N.E.2d 376; Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210.

Theft is available for use in impeachment as a crime involving dishonesty or false statement. Hunt v. State (1983), Ind., 455 N.E.2d 307. However, only a total denial of cross-examination on an area concerning a witness's credibility will amount to a constitutional denial of the right to cross-examination. Any less than a total denial of cross-examination is viewed as within the discretion of the trial court to regulate the scope of cross-examination. Rinard v. State (1979), 271 Ind. 588, 394 N.E.2d 160.

In appellant's case, the jury did not hear evidence of the lesser offenses above set out. However, they did hear evidence that at the time of his testimony, Fassoth was charged with three counts of dealing in cocaine in two counties, had received use immunity, and had been ordered by the judge to testify. They...