Grant v. State

• Decision Date: 16 November 1993
• Docket Number: No. 34A02-9203-CR-105,34A02-9203-CR-105
• Citation: 623 N.E.2d 1090
• Parties: Farrell Donald GRANT, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1090

623 N.E.2d 1090

Farrell Donald GRANT, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 34A02-9203-CR-105.

Court of Appeals of Indiana,

Second District.

Nov. 16, 1993.

Rehearing Denied Jan. 10, 1994.

Caroline B. Briggs, Flora, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

On November 12, 1991, a jury found Farrell Donald Grant guilty of Conspiracy to Commit Dealing in Cocaine or a Narcotic Drug, a Class A felony. ¹ Grant presents several issues upon appeal which are restated as follows:

I. Whether the amended information sufficiently sets forth the elements of the offense charged;

II. whether the trial court erred in denying Grant's discovery requests;

III. whether the trial court erred in permitting the State to present the concept of "all reasonable doubt" during voir dire;

IV. whether the trial court erred in refusing Grant's tendered instructions and in giving the State's instruction upon the inference of conspiracy;

V. whether the trial court's ex parte communication with the jury was harmless error; and

VI. whether the evidence of Grant's predisposition was sufficient to negate Grant's entrapment defense?

We affirm.

The evidence most favorable to the conviction reveals that Grant agreed to participate in an illegal cocaine transaction. The trio involved in the plan included Grant, Gary Brian Hudson, a narcotics officer with the Bureau of Narcotic Enforcement of the California Department of Justice, and Larry Eugene Mote, an undercover officer with the Indiana State Police. During the course of on-going California investigations, Hudson learned that Grant had sold cocaine supplied by Becky Smith. Becky, who worked with Hudson as an informant subsequent to her 1988 drug-related arrest, "fronted" ² cocaine to Grant from 1987 through June 1989. Grant generated a substantial debt to Becky under this arrangement.

In the spring of 1990, Becky contacted Grant, demanded repayment of the debt, and instructed him to call Hudson. Grant believed Hudson was Becky's main supplier. During a series of eleven telephone conversations, Hudson learned that Grant could sell one to two kilos of cocaine per week and that Grant would introduce him to additional buyers in Texas. After turning the case over to the Indiana State Police, Hudson assisted Officer Mote in setting-up a controlled buy.

Officer Mote, posing as Hudson's "runner," engineered the buy. Mote met Grant on May 24, 1990, to discuss potential cocaine purchases. Grant indicated that he needed to gather funds to further the transaction. Between May 24 and June 12, Grant contacted Hudson and Mote at least a dozen times, eventually informing them that he had collected the funds and wished to purchase a kilo of cocaine. Mote and Grant finalized the deal in Kokomo on June 12, 1990. Grant was arrested after exchanging a $4050.00 downpayment for a package allegedly containing cocaine.

I. Amended Information

Grant alleges the amended information was vague and failed to set forth the elements of the charge with specificity. Grant contends the deficiency deprived him of due process and prevented adequate preparation of his defense. An information alleging a conspiracy must describe the intended felony with the certainty and particularity required for an indictment for commission of the intended felony. Green v. State (1991) 3d Dist.Ind.App., 575 N.E.2d 296, 299, trans. denied. An information that enables "the accused, the court and the jury to determine the crime for which conviction is sought" satisfies due process. Id.

Here, the State's information, amended subsequent to Grant's Motion for a More Definite Statement, adequately sets forth the required elements. First, the amended information alleged that Grant knowingly or intentionally intended to deal cocaine or a narcotic drug and that Grant agreed with Mote to commit dealing. Second, the amended information set forth acts in furtherance of the conspiracy which included: (1) that Grant traveled to Kokomo and told Mote he wanted to purchase cocaine in excess of three grams; (2) that Grant agreed to pay Mote a $5,000 downpayment for a kilo of cocaine; (3) that Grant telephoned Mote and agreed to conduct the purchase of the cocaine on June 2, 1990 and; (4) that Grant and Mote completed an exchange of U.S. currency for the purchase of one kilo of a substance purported to be cocaine on June 12, 1990.

The acts set forth above substantially comply with the elements of conspiracy to deal cocaine or a narcotic drug pursuant to I.C. 35-41-5-2 and I.C. 35-48-4-1(a)(2). At trial, Grant presented testimony to refute the alleged conspiratorial nature of his actions. Further, Grant presented evidence relative to the alleged cocaine transaction. Grant was able to prepare and present a competent defense based upon the wording of the information. I.C. 35-34-1-2 (Burns Code Ed.1985) (charge must substantially comply with and track the words or meaning of the statute). The amended information sufficiently conveyed the charges for which Grant's conviction was sought.

II. Discovery

Grant contends that the trial court's refusal to compel discovery of exculpatory evidence ³ and other information regarding Becky Smith was error. Citing Jorgensen, supra and Burst v. State (1986) 4th Dist.Ind.App., 499 N.E.2d 1140, trans. denied, Grant argues that his preparation and presentation of an entrapment defense was prejudicially hampered by the trial court's refusal to compel Becky's deposition or to subpoena her telephone records. The State counters, on a somewhat-related theme, that nondisclosure of a confidential informant's identity is favored unless disclosure is relevant or helpful to the defense or is essential to a fair trial. ⁴ See Burst, supra.

At trial, Grant testified that Becky, acting as a special agent of the State, coerced him to participate in the drug transaction. According to Grant, Becky not only initiated the contact between Grant and Hudson, but induced Grant's cooperation through repeated telephone threats directed towards Grant and his daughter. Grant insists that evidence of Becky's telephone toll calls would corroborate his testimony that she coerced him to agree to deal drugs for Hudson and would have cast doubt upon the credibility of Hudson who allegedly testified ⁵ that Becky did not contact Grant after the initial communication.

We disagree with this synopsis of Hudson's testimony. Hudson testified that he did not know and did not investigate whether Becky contacted Grant after Hudson initiated the call to Grant. Neither had Hudson given Becky any instructions concerning how she was to communicate with Grant. Thus, the jury was not forced to referee a credibility contest between a law enforcement officer and a criminal defendant as Grant complains. Moreover, even if Grant obtained and introduced Becky's telephone records into evidence, the substance of the conversations, i.e., the alleged threats, would be unknown.

The crux of the matter is whether Grant should have been permitted to subpoena Becky to appear for a deposition. We need not address the contention that Becky was a confidential informant because Grant obviously had sufficient information to secure a subpoena. ⁶ Upon notification of the proposed deposition, the State argued that it was unduly burdensome, oppressive, and unreasonable to seek to depose a non-witness ⁷ two days before the scheduled trial. The trial court quashed the subpoena.

The trial court's authority to direct the discovery process is clear, but is tempered by a requirement for the appropriate exercise of discretion. Norris v. State (1987) Ind., 516 N.E.2d 1068 (trial court empowered to guide and control proceedings). We will reverse only upon a showing of an abuse thereof.

Throughout the trial, the court appropriately resolved a multitude of discovery-related conflicts. The record further reflects that both parties were provided with a sufficient amount of time for discovery. Grant requested and received continuances in order to fully and fairly prepare his defense.

Presumably, Grant sought Becky's admission that she coerced him to buy the cocaine by repeatedly threatening him. This information was known by and available to Grant from the inception of the entire episode. In Perry v. State (1989) Ind., 541 N.E.2d 913, the defendant believed that two men, who were present in defendant's home during an illegal drug sale, would corroborate his story. The court there properly denied a request for additional preparation time to locate the potential witnesses because the defendant knew of their existence and had ample time to gather the information.

Grant had the opportunity to investigate and to develop the alleged exculpatory material. Procuring Becky's statement or listing her as a trial witness was within Grant's control. Grant did not provide a rationale for his eleventh-hour request for Becky's deposition nor can we envision one. The trial court did not err in quashing the subpoena.

III. Voir Dire

Grant argues that the trial court erred in permitting the State to ask, "[D]o you see a distinction between a reasonable doubt and all reasonable doubt?" Supplemental Record at 24. Grant objected upon the grounds that the State incorrectly stated the law. The State counters that if the jury believed a guilty verdict required proof beyond "all" reasonable doubt, then the State would be held to a more stringent burden of proof. ⁸

The substance and form of voir dire is entrusted to the trial court's discretion. Hall v. State (1986) Ind., 497 N.E.2d 916, 918. The trial court's decisions will only be reversed upon a showing of manifest abuse and the denial of a fair trial. Grant failed to make such a showing.

The trial court properly conveyed the concept of reasonable doubt to the jury throughout the proceedings. Further, the...