Hutcherson v. State

• Citation: 269 Ind. 331,380 N.E.2d 1219
• Decision Date: 04 October 1978
• Docket Number: No. 777S532,777S532
• Parties: Marvin HUTCHERSON, Appellant (Defendant below), v. STATE, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 1219

380 N.E.2d 1219

269 Ind. 331

Marvin HUTCHERSON, Appellant (Defendant below), v. STATE, Appellee (Plaintiff below).

No. 777S532.

Supreme Court of Indiana.

Oct. 4, 1978.

David F. McNamar, Michael R. Franceschini, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Marvin Hutcherson, was charged with five counts of the unlawful delivery of heroin, Ind.Code § 35-24.1-4.1-1 (Burns 1975), and was convicted by a jury on four counts. He was sentenced to five years' imprisonment on Counts II, III, and IV each, and to twenty-two years' imprisonment on Count V. This direct appeal raises the following issues:

1. Whether there was sufficient evidence to support the jury verdicts and overcome the defense of entrapment;

2. Whether the doctrine of collateral estoppel applies as to Counts II, III, and IV since the jury reached a verdict of not guilty on Count 1;

3. Whether the court committed reversible error in admitting certain exhibits into evidence;

4. Whether the court committed reversible error by orally giving the prospective jurors a definition of reasonable doubt during voir dire; and

5. Whether the court committed reversible error in sentencing defendant on both Counts IV and V and in allowing the sentences to run consecutively to a prior eight year term.

The record reveals the following facts favorable to the state. An informant, James Buford, working with a police narcotics agent, Roy Waddell, made four purchases of heroin from the defendant in August and September, 1976. The first purchase was set up when Buford and Waddell went to Marvin's Record Shop and Buford asked defendant if he could buy some heroin. Although defendant at first responded that he was not selling drugs, he soon changed that position and told Buford to meet him in fifteen minutes at a certain street corner. Buford and Waddell drove to this location and defendant drove up behind them. Buford went to the defendant and gave him the money for the heroin. Defendant told Buford he could pick up the heroin in a white envelope beside the curb about fifteen feet behind them. Buford did as directed and gave the envelope to Officer Waddell who performed a field test and received a positive reaction for the presence of an opiate. A police chemist later determined that the envelope did contain heroin.

Buford and Officer Waddell made three more trips to the record shop on three different days. Each time Buford was given directions as to where to meet defendant to get the heroin. One time Buford was given the bag containing the heroin by a young woman who was sitting in defendant's car. The other two times defendant, himself, handed over the bag of heroin. On one of these occasions Buford was wired with an electronic device, and Officer Waddell was able to hear the deal being completed. On two of the occasions Officer Waddell was actually present during the transactions.

At the time of the third deal, the defendant said he had a considerably larger amount of heroin than Buford had asked for. Buford discussed this with Officer Waddell and was given more money to purchase the larger amount. Following each of these transactions the bag which Buford received from the defendant was taken to the police laboratories. The contents in each case were determined to be heroin. Officer Waddell took the usual precautions each time of searching Buford carefully both before and after the buy. Defendant was charged with four counts of unlawful delivery of a controlled substance based on these four transactions. The Information was later amended by adding Count V, which charged defendant with unlawful delivery of heroin when he had a prior conviction under that law.

I.

The defendant first contends there was insufficient evidence to overcome the defense of entrapment on the theory that the state failed to prove that he had sufficient propensity to commit the alleged crime absent governmental involvement.

We first take notice that in determining whether the conviction was supported by sufficient evidence, this Court neither weighs the evidence nor resolves questions of witness credibility. We consider only that evidence most favorable to the state, together with all reasonable and logical inferences to be drawn therefrom. When there is substantial evidence of probative value to support the jury's verdict, the conviction will not be set aside. Poindexter v. State (1978), Ind., 374 N.E.2d 509; Grigsby v. State (1978), Ind., 371 N.E.2d 384; Henderson v. State (1976), 264 Ind. 334, 343 N.E.2d 776.

Entrapment, as a defense, exists when the defendant has been induced or hired by a governmental agency to commit a crime he had no predisposition to commit. Mendez v. State (1977), Ind., 367 N.E.2d 1081; Johnson v. State (1971), 255 Ind. 589, 266 N.E.2d 57. If the criminal design springs from the mind of the defendant, there is no entrapment. Hardin v. State (1976), 265 Ind. 635, 358 N.E.2d 134; Mendez, supra. Presentment, by a police agent, of the mere opportunity to commit a crime does not constitute entrapment. Mendez, supra; Johnson, supra.

In the instant case, there was ample evidence from which the jury could find that there was a predisposition to commit the crime. The police had been given reliable information that defendant, who had a previous conviction for selling drugs, was again involved in the drug business. The defendant was able to supply the heroin within a few minutes; he had several, different delivery schemes set up; and on one occasion he had a much larger quantity available to sell than had been asked for. These were sufficient facts from which a reasonable man could infer that the defendant had a previous intention to commit the crime.

Defendant further contends that the jury must have found that entrapment existed on the first sale because they found him not guilty on that count. This argument is not supported by the record. There could have been many other reasons for the jury's verdict since the circumstances in each of the transactions were slightly different. In the first sale, the defendant did not hand over the heroin, but merely directed Buford to its location. Furthermore, Officer Waddell was not close enough to hear defendant's remarks during this transaction. In the subsequent transactions Officer Waddell was either present or was listening by means of an electronic device and the heroin was handed over to Buford directly from the defendant or a companion in his car. Since there were different circumstances in each transaction, the verdict of not guilty on Count I has not been shown to be necessarily based on the theory of entrapment.

The defendant also argues that there must have been entrapment because he stated he was not selling any drugs when Buford first approached him. However, the record further shows that the defendant was just being cautious, possibly of police involvement, when Buford first approached him because he did not know Buford very well and had noticed Officer Waddell, whom he did not know at all, standing a little distance away. When Buford had allayed defendant's suspicions, the defendant was very willing to sell him the drugs. Ordinary caution taken by one who is preparing to engage in an illegal transaction cannot later be labeled entrapment. Also, the fact that the quantities sold on three occasions were small is of no significance since the law prohibits Any Unlawful sale of this drug.

Since we have found sufficient evidence of probative value that supports the jury's verdicts on all counts, the verdicts will not be disturbed. Chadwick v. State (1977), Ind., 362 N.E.2d 483.

II.

The defendant further contends that the judgments on Counts II, III, and IV are invalid since the jury had first found him not guilty on Count I. He argues that the evidence produced on each of the transactions was the same except for the date and that therefore collateral estoppel should apply. As we have pointed out above, there were different circumstances and facts surrounding each transaction and the jury did not necessarily rely on entrapment to reach the not guilty verdict on Count I. The doctrine of collateral estoppel only applies if an issue of ultimate fact has once been determined and there are no other issues present...