Hutcherson v. State, No. 777S532

Docket NºNo. 777S532
Citation269 Ind. 331, 380 N.E.2d 1219
Case DateOctober 04, 1978
CourtSupreme 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.

[269 Ind. 333]

Page 1220

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 [269 Ind. 334] 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

Page 1221

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 [269 Ind. 335] 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...

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31 practice notes
  • Russelll v. State, 49a02-9803-cr-224
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1999
    ...not be twice punished for a single offense arising from one set of operative circumstances." Id. at 971 (citing Hutcherson v. State, 269 Ind. 331, 380 N.E.2d 1219 (1978); Bean, 267 Ind. 528, 371 N.E.2d 713, and Thompson, 259 Ind. 587, 290 N.E.2d 724). The Haggard court recognized the B......
  • Haggard v. State, No. 782S259
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1983
    ...that a person may not be twice punished for a single offense arising from one set of operative circumstances. Hutcherson v. State, (1978) 269 Ind. 331, 380 N.E.2d 1219; Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713; Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d Page 972 It is true......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...the entrapment defense, not raising it. See, e. g., Stewart v. State (1979), Ind., 390 N.E.2d 1018; Hutcherson v. State (1978), Ind., 380 N.E.2d 1219; Couch v. State (1980), Ind.App., 402 N.E.2d So Indiana case law neither proscribes the language of the instruction nor supports the view tha......
  • Williams v. State, No. 779S202
    • United States
    • Indiana Supreme Court of Indiana
    • September 5, 1980
    ...not solely the government's idea. Cyrus v. State, (1978) [274 Ind. 97] Ind., 381 N.E.2d 472, 473-74; Hutcherson v. State, (1978) Ind., 380 N.E.2d 1219, 1221; Hardin v. State, (1976) 265 Ind. 635, 639, 358 N.E.2d 134, 136. When the Page 574 accused raises this defense, the prosecution must p......
  • Request a trial to view additional results
31 cases
  • Russelll v. State, 49a02-9803-cr-224
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1999
    ...may not be twice punished for a single offense arising from one set of operative circumstances." Id. at 971 (citing Hutcherson v. State, 269 Ind. 331, 380 N.E.2d 1219 (1978); Bean, 267 Ind. 528, 371 N.E.2d 713, and Thompson, 259 Ind. 587, 290 N.E.2d 724). The Haggard court recognized the Bl......
  • Haggard v. State, No. 782S259
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1983
    ...that a person may not be twice punished for a single offense arising from one set of operative circumstances. Hutcherson v. State, (1978) 269 Ind. 331, 380 N.E.2d 1219; Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713; Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d Page 972 It is true......
  • Harrington v. State, No. 2-878A284
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1980
    ...the entrapment defense, not raising it. See, e. g., Stewart v. State (1979), Ind., 390 N.E.2d 1018; Hutcherson v. State (1978), Ind., 380 N.E.2d 1219; Couch v. State (1980), Ind.App., 402 N.E.2d So Indiana case law neither proscribes the language of the instruction nor supports the view tha......
  • Williams v. State, No. 779S202
    • United States
    • Indiana Supreme Court of Indiana
    • September 5, 1980
    ...not solely the government's idea. Cyrus v. State, (1978) [274 Ind. 97] Ind., 381 N.E.2d 472, 473-74; Hutcherson v. State, (1978) Ind., 380 N.E.2d 1219, 1221; Hardin v. State, (1976) 265 Ind. 635, 639, 358 N.E.2d 134, 136. When the Page 574 accused raises this defense, the prosecution must p......
  • Request a trial to view additional results

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