Gilley v. State

• Decision Date: 15 March 1989
• Docket Number: No. 14S00-8802-CR-246,14S00-8802-CR-246
• Citation: 535 N.E.2d 130
• Court: Indiana Supreme Court
• Parties: William Merrell GILLEY, Jr., Appellant, v. STATE of Indiana, Appellee.

Page 130

535 N.E.2d 130

William Merrell GILLEY, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 14S00-8802-CR-246.

Supreme Court of Indiana.

March 15, 1989.

Blake Chambers, Fitzpatrick, Chambers, Waller, Leonard & Hanson, Washington, for appellant.

Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

A jury trial resulted in appellant's conviction of three counts of Dealing in a Schedule II Controlled Substance, a Class B felony, for which he received three fifteen (15) year sentences, his sentences to run concurrently. This Court sua sponte notes the trial court improperly demarcated appellant's habitual offender status as a separate Count IV and enhanced all his sentences collectively by twenty (20) years. The habitual offender status requires the trial court to enhance one or more of the sentences under Count I, II, or III by a term allowed by statute. Starks v. State (1988), Ind., 523 N.E.2d 735.

The facts are: Officer Paul Andry is an undercover agent for the Indiana State Police. He testified that prior to August of 1986 he visited the home of Jama Pate for the purpose of purchasing L.S.D., at which time he met appellant. Pate was not there but appellant told Andry he knew of a source of crank, or methamphetamine, and Andry should check back later if he wanted some.

On August 25, 1986, Andry visited the home of Debbie Pilk for the purpose of purchasing drugs and coincidentally encountered appellant again. Pilk did not know of a drug source, but appellant advised Andry of a possible source of some crank. Appellant told Andry the price for a quarter ounce of crank would be approximately $625. Andry placed an order for a quarter ounce of crank, and appellant said he would check and meet him in a city park at 9:00 p.m.

At 9:00 p.m., Andry and a confidential informant met with appellant in the park. Appellant said his source would not "front" him, or part with the drugs until he had the money. He proposed that Andry give him the money and sit at a certain spot in the park to watch the transaction so that he was assured his money would not be "ripped off." Because appellant's source had only four grams of crank to sell, Andry gave appellant $425 and watched from a distance as the source supplied the drugs to appellant.

Appellant reconvened with Andry and told him that due to the fact that a police officer drove by the park, they would conclude the transaction at a friend's residence. There, appellant produced four glass vials containing a white powder. He took a sample from each vial, placed it in a spoon, mixed it with water and injected it in his arm with a syringe. Appellant then advised Andry that it was good dope, but if Andry were dissatisfied with its quality, he would rectify the situation. He gave Andry the vials in a sack and they left. The powder in the vials was determined to be approximately 3.5 grams of methamphetamine.

On August 29, 1986, Andry and the confidential informant visited appellant's home for the purpose of purchasing drugs, and he told them his source could not obtain any crank for them at that time. He did say, however, that he had one-half of a gram for sale if they wanted it, and they bought it for $40. Appellant tore off a piece of a magazine page, placed the powder inside, and folded it up before giving it to Andry. The powder was determined to be .0899 grams of methamphetamine.

On September 3, 1986, Andry and the confidential informant visited appellant's home for the purpose of buying more crank. Appellant offered them an eighth of an ounce for $350. They all drove to a restaurant where Andry gave appellant $350, and appellant told them to meet him in the park. When appellant met them in the park, he suggested that they go back to the restaurant because the park was too heavily populated. In the parking lot, appellant got into Andry's vehicle and handed him what was determined to be 2.09 grams of methamphetamine.

Appellant first argues the State failed to produce evidence to contradict his defense of entrapment. The defense of entrapment is available when the prohibited conduct was the product of a law enforcement officer or his agent persuading the defendant to engage in the conduct and the defendant was not predisposed to commit the offense. Ind.Code Sec. 35-41-3-9.

Appellant argues that precedent interpreting the term "predisposed" has improperly considered factors such as the defendant's knowledge of drug sources, prices and slang, possession of contraband, and willingness to conduct further transactions. He asserts that the proper interpretation of the term "predisposed" entails analysis of past deeds relating to drug activity. He believes the liberal interpretation of "predisposition" used in past opinions prevents mere drug users, who are charged with dealing, from utilizing the defense of entrapment. He further asserts that because he had no ready supply of drugs immediately on hand, and because the State failed to prove any past transactions, the evidence was insufficient to establish his predisposition to deal drugs.

The question of entrapment is one of fact to be determined by the jury, and on review, we will not reweigh the evidence or judge the credibility of the witnesses. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239.

A showing of predisposition negates the defense of entrapment. Relevant factors which indicate predisposition are knowledge of drug prices and sources, use...