Hardin v. State

• Citation: 265 Ind. 635,358 N.E.2d 134
• Decision Date: 30 December 1976
• Docket Number: No. 875S187,875S187
• Parties: Fred HARDIN and Carl Taylor, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 134

358 N.E.2d 134

265 Ind. 635

Fred HARDIN and Carl Taylor, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 875S187.

Supreme Court of Indiana.

Dec. 30, 1976.

Palmer K. Ward, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Appellants Hardin and Taylor were charged by information with conspiracy to deliver a controlled substance and unlawful delivery of a controlled substance. In a trial by the court they were found guilty of both charges and were sentenced to two-fourteen years for conspiracy and ten years-one day for unlawful delivery of a controlled substance.

The facts of this case show that one Jesse Boss, a convicted felon, a drug user for five years, while under a pending robbery charge, made an agreement with the prosecutor and police to make a controlled narcotic buy from appellants, from whom he had bought drugs in previous dealings. As consideration for a successful venture, officials agreed to provide him with a 'break' on his pending charge. Boss, stripsearched, wired for sound and carrying $300 in marked bills, entered appellant Fred Hardin's shop. Appellant Hardin declared, 'I thought I told you to call.' Boss replied, 'Well, I lost my billfold and your number.' Then Hardin told Boss to come into the office. Hardin then asked, 'How many do you want, fifty?' Boss then gave him $300. Appellant Taylor came in and was told something by Hardin. Taylor then left. On instruction and in the company of two others, Boss left the shop and drove to a Burger Chef restaurant parking lot. About ten minutes later Taylor approached from the direction of a nearby White Castle restaurant and delivered a small brown paper bag to Boss and the other two men which contained 150 packets of heroin. The three divided the packets evenly and left. Boss then delivered his 50 packets to the police controlling the covert operation.

The sole issue presented for our review concerns the alleged entrapment of appellants. Appellants argue that there existed no probable cause to initiate the transaction and that there was insufficient evidence to show their predisposition to commit the offense.

Beginning with Walker v. State, (1970) 255 Ind. 65, 262 N.E.2d 641, when entrapment becomes an issue, the prosecution has been required to prove that enforcement officials had probable cause of suspecting that the accused was engaged in illegal conduct and was already predisposed to commit the crime. See: Smith v. State, (1972) 258 Ind. 415, 281 N.E.2d 803.

Today we re-examine our position taken in Walker. Justice Prentice, writing in Smith v. State, expressed the dilemma with which we are still faced:

'We recognize the absolute necessity, under certain circumstances, of permitting police officers to use this method of detecting crimes and apprehending criminal suspects. The illicit drug traffic running rampant through our society today, the havoc that it is wreaking and its secretive nature and the difficulty of its detection are compelling reasons for permitting this method of criminal detection and apprehension. In view of the magnitude of this problem, it may well be in order to consider means of allowing a greater latitude of investigative procedures in such cases, provided, it can be done without endangering substantial individual rights. It is, nevertheless, a repugnant practice, distasteful at its best and intolerable at its worst.'

Smith v. State, supra, 258 Ind. at 418, 281 N.E.2d at 805.

Although still recognizing the onerous aspects of entrapment, we believe the probable cause to suspect requirement has proven more difficult in its application than originally believed and no longer should be an additional burden upon law enforcement officials as they combat the trafficking in drugs. ¹ Therefore we overrule Walker v. State, supra, and its progeny to the extent that it requires the state to prove probable cause to suspect when entrapment has been properly raised.

The second portion of our entrapment rule comes from the position embraced by the majority in the Supreme Court in Sorrells v. United States, (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; and recently reaffirmed n Russell v. United States, (1973) 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. This approach centers upon the predilection of the accused to commit the charged crime.

The minority stance in each of these opinions has been that an objective standard that looks only to the police conduct be adopted. This position has been urged upon us by many legal commentators ² and adopted in several jurisdictions. ³ The rationale for this approach is that courts should not countenance conduct which falls below accepted standards of police conduct. In addition, the focus upon the subjective intent of a defendant necessarily opens the gates to the introduction into evidence of often variable hearsay and suspicious evidence.

The decision as to which course of the two to follow is no longer without legislative guidance. The new Indiana Penal Code which becomes effective July, 1977, adopts the majority position in Sorrells. In the comments to the proposed Penal Code, the drafters state the following:

'However, the phrase 'a person not predisposed to commit the offense' was added to that section to insure that Indiana would follow the subjective approach to this defense. Under this section the defendant will raise the issue through some evidence showing his conduct was induced by a public officer or employee and that inducement was of such nature that normal law-abiding citizens would have been persuaded to commit the offense.'

(Proposed Final Draft, 1974)

The language recommended in the proposed draft is identical to that which becomes effective July 1, 1977. ⁴

Even while requiring proof of probable cause to suspect, the courts in Indiana have directed the second portion of thieir inquiry to the accused's predisposition to commit the crime with which he is charged. This, coupled with the evidence of the legislative choice of the subjective approach, leads us to adopt the view of the majority in Sorrells, supra, and Sherman, supra.

When the question of entrapment is raised, the court must make a two-part inquiry: (1) Did police officers or their informants initiate and actively participate in the criminal activity; and (2) is there evidence that the accused was predisposed to commit the crime so that the poscribed activity was not solely the idea of the police officials? Gray v. State, (1967) 249 Ind. 629, 231 N.E.2d 793. If the evidence shows police activity absent any showing of predisposition on the part of the accused, entrapment as a matter of law has been established. Id.

In the case before us, the officers involved had information that the appellants were selling drugs. When the informant entered appellants' premises, appellant Hardin inquired as to the amount of drugs the informant desired. In addition, an elaborate scheme was developed for the delivery of the drugs to the informant and in a short period of time a large amount of drugs, fifty packets of heroin, was given to the informant. This evidence would clearly establish that appellants were ready and willing participants in the illegal transaction. Therefore, we find the evidence sufficient to establish appellants' predisposition and that they were, therefore, not entrapped.

For all of the foregoing reasons, we find that the judgment of the trial court should be affirmed.

Judgment affirmed.

GIVAN, C.J., and ARTERBURN, J., concur.

DE BRULER, J., concurs in result...