Hardin v. State, s. 82S01-9303-CR-391

Docket Nº82A01-9204-CR-100
Citation611 N.E.2d 123
Case DateMarch 29, 1993
CourtSupreme Court of Indiana

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611 N.E.2d 123
Derrick HARDIN, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
Nos. 82S01-9303-CR-391, 82A01-9204-CR-100.
Supreme Court of Indiana.
March 29, 1993.

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Jeffery L. Lantz, Jon Aarstad, Evansville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.


DeBRULER, Justice.

Appellant Derrick Hardin was convicted in a trial by jury of the offense of dealing in cocaine, Ind.Code Sec. 35-48-4-1, a class B felony. The trial court sentenced Hardin to ten years in prison. The Court of Appeals, First District, affirmed the conviction. Hardin v. State (1992), Ind.App., 600 N.E.2d 947. Hardin petitions our Court for transfer, alleging trial court and appellate error. We grant transfer.


During the spring and summer of 1990, Indiana State Police Trooper Myron Wilkerson worked as an undercover investigator for the state police Narcotics Division. Wilkerson's assignment was to identify drug dealers in the city of Evansville and secure illegal drug transactions with them, in order to arrest those dealers at a later time. In late March 1990, Wilkerson met Diahann "Cookie" Watson through Renee Barksdale, Wilkerson's confidential informant. Watson was a drug user. At that time, Wilkerson did not reveal that he was an undercover police officer to Watson. Wilkerson intended to use Watson to make contact with drug dealers.

On the afternoon of April 3, 1990, Wilkerson indicated to Watson that he was in the market to purchase some cocaine. Watson advised Wilkerson that later that day, she was going to meet Derrick "Little D" Hardin, the appellant-defendant, in order to purchase some cocaine for herself. Wilkerson asked if he could make a purchase

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from Hardin, because Wilkerson was attempting to locate a source. Watson told Wilkerson that she would take him along.

That evening, when Trooper Wilkerson picked up Watson, Watson told him that they had to go to the Oakdale Housing Projects to meet Hardin. When the pair arrived at the projects, they discovered that Hardin was not there. The testimony conflicts as to how the duo located Hardin; however, both Wilkerson and Watson agree that they were directed to go to Tinker's Lounge, a bar in Evansville. Wilkerson and Watson drove to Tinker's Lounge, where they eventually located Hardin. Hardin was in the bar's parking lot, seated in a 1981 burgundy Oldsmobile. After exiting Wilkerson's vehicle, Watson approached the Oldsmobile, spoke with Hardin for about a minute, then returned to Wilkerson. Watson told Wilkerson that Hardin was afraid someone was following him that night, and that he wanted to return to the projects. Wilkerson and Watson were to follow Hardin.

Wilkerson and Watson arrived at the projects a short time after Hardin. Wilkerson observed Hardin and another person walking along the southwest corner of the housing projects. Hardin motioned for Wilkerson to move his car to a parking lot adjacent to the projects. After Wilkerson parked his car, Watson once again disembarked, approaching Hardin and the other individual (whom Watson could only identify as "Al"). Watson got into another car with Al, then returned to Wilkerson a short time later with an "eight-ball" of cocaine. An "eight-ball" is a one-eighth ounce of cocaine, or approximately 3.5 grams.

Watson attempted to complete the sale to Wilkerson, but Wilkerson refused to accept the cocaine, complaining that Watson had "cut" the cocaine. Wilkerson's complaint was that Watson had taken the cocaine, subtracted a small amount of cocaine for her own use, and mixed another substance with the remaining portion, in order to bring the remaining cocaine to its original weight. Wilkerson and Watson argued loudly, then Wilkerson kicked Watson out of the car. Wilkerson's refusal was a ruse to attempt to lure the alleged cocaine dealers into a direct transaction. Apparently, the ruse worked.

The commotion of Wilkerson's refusal attracted Hardin to Wilkerson's vehicle. When Wilkerson kicked Watson out of the car, Hardin got inside and asked what was wrong. Wilkerson complained to Hardin that Watson was cutting the cocaine, and that Wilkerson would rather deal directly with Hardin. Hardin agreed to this arrangement. While in the car, Hardin sold Wilkerson a quantity of cocaine. Wilkerson asked Hardin for an eight-ball. Hardin produced seven small bags of white powder, representing that each bag contained one-half gram. Hardin handed Wilkerson the seven bags, receiving $260.00 in the transaction. Subsequent laboratory analysis confirmed that each bag contained cocaine.

On September 4, 1990, the Vanderburgh County Prosecutor's Office filed an Information charging Hardin with Dealing in Cocaine. Specifically, the information charged that on or about April 4, 1990, Derrick Hardin a/k/a "Little D" did knowingly deliver Cocaine to Myron Wilkerson.


On appeal, Hardin raises a number of issues. He contends that the trial court erred when it admitted evidence of instances of uncharged misconduct. He also argues that the trial court's jury instructions regarding the instances of uncharged misconduct improperly focused the jury's attention on the inadmissible evidence. In this appeal, we reach these issues and the question of harmless error.

Hardin's central claim in this appeal is the one challenging the propriety of the evidence of his uncharged misconduct. Specifically, that conduct concerned Hardin's alleged drug dealings and transactions. Trooper Wilkerson testified that on May 17, 1990, one month after the date of the charged offense, Hardin had arranged for Wilkerson to purchase one-half ounce of cocaine from a third individual, Toshio Roach, but that the transaction never transpired. Over Hardin's objection, the trial

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court admitted this testimony to prove the defendant's identity, and to prove a common scheme or plan. Record at 195-96. The second instance of past uncharged conduct that the trial court admitted involved unspecified transactions with Diahann Watson. Watson testified that she had bought cocaine from Hardin a number of times prior to the date of the charged offense. Over Hardin's objection, the trial court allowed the testimony of Hardin's previous dealings to prove Hardin's identity, because Hardin did not appear for trial and was tried in absentia. Id. at 286.

Hardin also alleges that three of the trial court's final instructions to the jury improperly affected the verdict. Hardin objected to these instructions at trial, linking his objections to the instructions with his objections to the evidence of his past uncharged misconduct.

Jury instruction seven reads, in part:

Evidence has been received that the defendant may have been involved in delivery of controlled substances other than that charged in the information. This evidencne [sic] has been received solely on the issue of motive to obtain money and predisposition to commit the offense charged. This evidence is to be considered by you only for the limited purpose for which it was received.

Id. at 419. At trial, Hardin objected to instruction seven, because the court instructed the jury to use the questionable evidence for an improper purpose. On appeal, Hardin contends that the word "predisposition" means "propensity," and that evidence of a defendant's propensity to act in conformity with proven character traits is generally inadmissible.

Jury instruction fourteen reads:

Evidence of other crimes or criminal acts other than those charged is generally inadmissible as proof of the guilt of the defendant, such evidence may properly be introduced for the purpose of showing intent, motive, purpose, identity, or common scheme or plan. This evidence is to be considered by you only for the limited purpose for which it was received.

Id. at 427. Hardin objected to instruction fourteen, because it directed the jury to consider the potentially inadmissible evidence of Hardin's past uncharged misconduct.

Jury instruction fifteen reads:

Evidence has been introduced that the defendant may have been involved in a crime other than that charged in the information. This evidence, if proved, has been received solely on the issue of the defendant's credibility.

Id. at 428. Hardin objected to instruction fifteen, because it charged the jury to consider the evidence of past uncharged misconduct for the purpose of judging Hardin's credibility. Hardin contends that because he had not testified at trial, his credibility was not at issue, so any evidence presented to impeach his credibility was improperly admitted.

I. Evidence of Uncharged Misconduct

Clearly, relevancy is central to admissibility. Evidence is relevant if it tends to prove or disprove a material fact or sheds any light on guilt or innocence of the accused. Davidson v. State (1990), Ind., 558 N.E.2d 1077, 1088. However, sometimes a trial court may exclude even relevant evidence at trial, due to possible prejudicial effect that outweighs the probative value of the evidence. See Lannan v. State (1992), Ind., 600 N.E.2d 1334.

For many years, Indiana held that evidence of a defendant's prior acts of uncharged misconduct was inadmissible to prove the defendant's guilt. Barger v. State (1992), Ind., 587 N.E.2d 1304, 1309. This Court has held:

The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged ("uncharged misconduct") will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses the danger that the jury will convict the defendant solely on this inference.

Penley v. State (1987), Ind., 506 N.E.2d 806, 808. The rationale for this rule is

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predicated upon our fundamental precept that every defendant...

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