Horn v. State

• Decision Date: 29 November 1978
• Docket Number: No. 3-1177A295,3-1177A295
• Citation: 382 N.E.2d 1012,178 Ind.App. 415
• Parties: George Robert HORN, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1012

382 N.E.2d 1012

178 Ind.App. 415

George Robert HORN, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 3-1177A295.

Court of Appeals of Indiana, Third District.

Nov. 29, 1978.

Robert S. Bechert, Tremper & Bechert, Ft. Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., David M. Wallman, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

George Robert Horn, Jr., was charged with knowingly delivering marijuana, in violation of IC 1971, 35-24.1-4.1-10(a)(1), Ind.Ann.Stat. § 10-3561r(a)(1) (Burns Code Ed.). ¹ At trial before the court, he attempted to show that he was entrapped by a police officer. Following his conviction, he brings this appeal. Finding no error, we affirm.

Horn raises two issues for our review:

I. That Horn was denied procedural due process when the trial court retroactively applied the rule in Hardin v. State (1976) Ind., 358 N.E.2d 134.

II. That the State failed to produce evidence of Horn's predisposition to commit the offense.

The facts relevant to this appeal are as follows: Darrell Hoffman and his stepson, Tom Stetler, sought out Kenneth Bearman, a police officer in the vice and narcotics bureau. Mr. Hoffman claimed that Horn was holding his runaway stepdaughter, Dawn Stetler, against her will. Tom Stetler claimed that Horn was selling drugs from Horn's home and that he, Tom, had previously purchased some of those drugs. Bearman had never met either informant previously. Nonetheless, he failed to ask for any specific information concerning the alleged drug buys, nor did he check further into the credibility or reliability of either Hoffman or Tom.

Bearman and Tom proceeded to Horn's home. They determined that Tom would attempt to buy a controlled substance from Horn. They entered Horn's home and were invited to sit down. Horn and Dawn (Tom's sister) were present. Tom initiated a discussion concerning a possible purchase of "tea" (Bearman testified that the term "tea" refers to amphetamines or phencyclidine). Horn said he was out of "tea" at the moment, but that he would be picking some up in the near future. The discussion turned to a possible buy of marijuana. Horn indicated he had some marijuana left. Upon request, he brought some into the room and advised Bearman and Tom to try some in a pipe. Afterwards, Horn asked for $60.00 for the three bags of marijuana. The group then smoked a joint together. Bearman produced the money and Horn advised him to give it to Dawn. Shortly thereafter, Bearman and Tom left Horn's home.

Prior to trial, on December 3, 1976, Horn filed a motion to dismiss, claiming that Officer Bearman lacked probable cause to believe that Horn was engaged in illegal conduct prior to initiating his scheme of entrapment. After a hearing on the motion to dismiss, the trial court indicated that it would advise Horn of its decision the following week. Finally, on February 8, 1977, the trial court denied the motion to dismiss. On June 10, 1977, Horn renewed his motion to dismiss before the bench; it was likewise denied.

I. Retroactive Application of Hardin

At the time Horn was charged with this crime, Indiana law imposed upon the State the requirement of proving that, prior to its investigation, it had probable cause to suspect Horn was engaged in illegal conduct. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641. The rule allowed probable cause to be based upon reliable hearsay evidence. After reviewing the evidence presented at the hearing on Horn's motion to dismiss, we feel that the State failed to prove that, prior to the attempted buy, Officer Bearman had probable cause to suspect Horn of delivering a controlled substance. However, such a determination does not dispose of the issue in this case. On December 30, 1976, the Supreme Court of Indiana eliminated the requirement that the State prove probable cause to suspect when entrapment is raised as a defense. Hardin v. State (1976), Ind., 358 N.E.2d 134. The Court of Appeals applied the rule in Hardin retroactively, in Davila v. State (1977), Ind.App., 360 N.E.2d 283.

In the present case, on June 10, 1977, Horn renewed his motion to dismiss. The trial court denied the motion pursuant to Hardin. In his brief, Horn argues he was denied procedural due process when the court retroactively applied the rule in Hardin. Horn claims that the defense he raised at the hearing on his motion to dismiss was based upon the rule in Walker. Further, his strategy at trial was based upon his belief that the court had erroneously applied Hardin retroactively.

The Supreme Court of Indiana considered a similar argument in Henry v. State (1978), Ind., 379 N.E.2d 132. Under the facts in the Henry case, Hardin was decided after the motion to correct errors had been denied by the trial court. The Supreme Court concluded that the question of whether Hardin should be applied retroactively:

"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." Id. at 136.

In the present case, Horn's position is somewhat different. Undoubtedly, Horn relied on the Walker rule requiring the State to show probable cause to suspect when he sought a bar to prosecution by presenting appropriate evidence at the hearing on his motion to dismiss. Following the hearing, but Before his trial, Hardin overruled Walker. At that point in time, Horn could no longer rely on the rule in Walker for his defense. At trial, he should have presented evidence...