Henry v. State

• Decision Date: 21 July 1978
• Docket Number: No. 177S7,177S7
• Citation: 379 N.E.2d 132,269 Ind. 1
• Parties: Arthur L. HENRY and Larry G. Davis, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 132

379 N.E.2d 132

269 Ind. 1

Arthur L. HENRY and Larry G. Davis, Appellants, v. STATE of Indiana, Appellee.

No. 177S7.

Supreme Court of Indiana.

July 21, 1978.

Sheldon H. Cohan, Gary, for appellants.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellants appeal convictions of unlawful dealing in a controlled narcotic substance, Ind. Code § 35-24.1-4.1-1 (Burns 1975) repealed October 1, 1977, arising from their attempt to sell three grams of heroin to an undercover policeman in a rural Lake County restaurant parking lot. They raise the following issues:

(1) Whether the State was improperly allowed to amend the information at the commencement of trial;

(2) Whether the trial court improperly refused to implement a plea bargain arrangement arrived at on the first day of trial;

(3) Whether the police lacked probable cause to set in motion a plan to entrap appellants;

(4) Whether a packet of heroin was illegally seized from appellants' automobile;

(5) Whether Davis was entitled to a separate trial;

(6) Whether two exhibits consisting of bagged heroin were inadmissible because of the lack of a proper chain-of-custody foundation and because one was immaterial;

(7) Whether the trial court properly instructed the jury upon accessory status and liability;

(8) Whether the trial court erred in allowing the jury to assess appellants' sentences, and whether the verdicts were tainted by juror misconduct; and

(9) Whether the evidence was sufficient:

(a) to establish Davis' guilt;

(b) to negate the statutory exceptions and exemptions, and

(c) to negate the defense of entrapment.

Appellants were arrested in a restaurant parking lot in Hammond after a heroin sale to an undercover Lake County police officer. The sale came about as follows. Officer Lopez, the undercover agent, was told by Kenneth Wilder, a narcotics informant who died prior to trial, that appellant Henry dealt in heroin. Lopez had Wilder telephone Henry to arrange a sale of heroin to Lopez. During the conversation Henry agreed to sell a "spoon" of heroin for four hundred dollars, and to meet Wilder and Lopez in the restaurant parking lot.

Appellants, Henry and Davis, appeared at the lot in a car driven by Davis. Wilder and Lopez approached the car; Wilder introduced Lopez to Henry and vouched for Lopez. Henry asked Lopez if he was a policeman. Lopez denied that he was, and Henry said, "Good, we can do business." He told Lopez that if Lopez was satisfied with his heroin they might arrange a weekly sale.

Lopez and Wilder returned to their own car, parked next to Henry's. Henry came to Lopez's car and handed him a clear plastic bag containing brown powder. Lopez told Davis that he believed that the bag had been "hit", that it was not full spoon. Davis told him that the bag constituted a full spoon of heroin. Lopez took the bag and told Henry and Davis that he would get the money from his trunk. The opening of his trunk signaled the assembled law enforcement personnel to arrest appellants. Davis put his car in reverse and backed up, forcing Lopez to get out of his way. He was stopped after moving a few feet by an officer who blocked his path with another car. After appellants were placed in custody their car was searched; a cigarette package containing two small plastic bags of heroin were found in the car and seized.

The substance in the bag given by Henry to Lopez proved under analysis to be heroin diluted in some other substance, of an aggregate weight of 3.158 grams. The substance in the bags hidden in the cigarette package was also heroin; the record does not indicate in what amount.

I.

Appellants in the original information were charged with selling "0.315g." of heroin and after the jury was selected the State was permitted to amend the information to show "3.15g." over objection. A statute, Ind. Code § 35-3.1-1-5, (Burns 1977 Supp.) governs such amendments and in subsection (c) thereof provides:

"(c) Upon motion of the prosecutor the court at any time before, during or after the trial permit an amendment to the indictment or information in respect to any defect, imperfection or omission in form which does not prejudice the substantial rights of the defendant."

The amendment permitted was one of form only. The amendment was not essential to the charging of a crime, and after the amendment all of the same defenses remained available as before. Owens v. State (1975) 263 Ind. 487, 333 N.E.2d 745; Souerdike v. State (1951) 230 Ind. 192, 102 N.E.2d 367. Here the amount of the drug was not an element, but the statute under which appellants were charged distinguishes for sentencing purposes between more than and less than ten grams. Here the change from "0.315" to "3.15" grams did not expose appellants to a greater penalty as both measures are less than ten grams.

Subsection (e) of the same governing statute provides:

"(e) Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the crime charged; nor may an indictment or information be amended after arraignment for the purpose of curing a failure to charge or state a crime or legal insufficiency of the factual allegations."

This amendment did not contravene this provision as it did not change the theory of the prosecution, the identity of the crime, or cure any legal insufficiency of factual allegations.

Appellants contend that the amendment was prejudicial in that they knew that a "spoon" of heroin weighed considerably more than 0.315 grams and that they intended to rely on this discrepancy to help substantiate their defense. It would have been apparent at trial that the discrepancy was nothing more than the product of a typographical error on the part of the State in preparing the pleading. The decimal point had simply been put in the wrong place. We do not believe that the loss of the opportunity to show this type of error was prejudicial to the substantial rights of appellants.

II.

On the morning of the first day of trial, counsel approached the trial judge and told him that they had arrived at an agreement which would result in a sentence of four years for appellant Henry and dismissal of charges against Davis. The trial judge was not receptive to this proposal, referring counsel to the court's rule that plea agreements are required to be submitted two weeks ahead of trial. The only record of this encounter exists in an affidavit of defense counsel attached to the motion to correct errors. The trial judge affirmed the accuracy of this affidavit in ruling on such motion. Affiant therein states that the court "refused to accept said plea agreement" and appellants in their brief state that the court "refused to permit" the agreement. Irrespective of counsel's characterizations of the court's actions on the occasion, we do not regard such actions as an appealable ruling. There was no request for the court to rule on any matter, but only to express his general attitude toward and opinion of counsel's agreement.

III.

Appellants submitted a pre-trial motion challenging the existence of probable cause to set in motion a plan to entrap them. The trial court conducted a hearing and denied the motion. In Hardin v. State (1976) Ind.,358 N.E.2d 134, this Court relieved the State of the burden of this probable cause showing. That case was decided after the motion to correct errors was denied by the trial court in this case. We are, therefore, faced with the question of whether Hardin should be applied retroactively in this case. We conclude that this issue should be decided on a case by case basis and that where as here the existence of entrapment probable cause was a main and direct issue in the trial court litigation and was relied upon by the defense in attempting to establish a bar to the prosecution, it would be fundamentally unfair to hold Hardin retroactive, and to resolve this issue against appellant on that basis. Safarik v. Udall (1962) 113 U.S.App.D.C. 68, 304 F.2d 944; Commonwealth v. Barnes (1976) Mass., 340 N.E.2d 863; State v. Hunt (1973)283 N.C. 617, 197 S.E.2d 513; State v. Saylor (1966) 6 Ohio St.2d 139, 216 N.E.2d 622.

We turn then to determine if there was evidence to support the existence of probable cause to set in motion the entrapment scheme. Narcotics agent Lopez who executed the planned buy from appellants was guided by information provided him by the informant Wilder that Henry was a heroin dealer and that Wilder bought drugs from Henry. If Lopez had personal knowledge of these facts they would have been sufficient to show probable cause; however, he had no such personal knowledge but was relying upon facts provided him by Wilder. The issue before us then becomes whether there were objective reasons for Lopez to believe that Wilder was credible.

According to the evidence Lopez met Wilder for the first time on the day the telephone call was made to Henry setting up the buy. Lopez however knew Wilder by reputation as a dealer and had been introduced to him by another narcotics agent. Prior to making the call to Henry, Wilder took Lopez to a house to make a buy. They were admitted into the house, but the buy did not materialize because the person in the house recognized Lopez as a police officer and ordered them out. However Lopez had independent confirmation that this person was dealing in drugs. At the time Wilder telephoned Henry, Lopez heard Wilder set up the buy and heard the party on the other end of the line agree to meet and evidence a willingness to sell. Based upon the events of the day, including the fact that Wilder gave reliable information regarding the unsuccessful buy, Lopez had reasonable ground to believe that Wilder was a reliable source. Consequently the requisite probable cause was shown by the evidence...