Johnston v. State, 29S00-8706-CR-602

• Decision Date: 30 November 1988
• Docket Number: No. 29S00-8706-CR-602,29S00-8706-CR-602
• Parties: Paris Gay JOHNSTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1179

530 N.E.2d 1179

Paris Gay JOHNSTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 29S00-8706-CR-602.

Supreme Court of Indiana.

Nov. 30, 1988.

Raymond M. Adler, Scott Allen Benkie, Adler & Benkie, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On September 3, 1986, Paris Gay Johnston was found guilty by a jury of Dealing in Cocaine or a Narcotic Drug, a class A felony. On October 3, 1986, he was sentenced to fifty (50) years. He directly appeals raising the following issues:

1. whether the trial court erred in denying Johnston's motion to dismiss even though the State did not produce informant Becky Woodbury for a deposition;

2. whether the trial court erred in admitting testimony of conversations between police and informant Becky Woodbury over Johnston's hearsay objections;

3. whether the trial court erred in refusing a jury instruction on the defense of entrapment; and

4. whether the trial court erred in refusing to grant Johnston's motion to suppress evidence allegedly obtained outside the scope of police authority.

The facts most favorable to the verdict below show that during the Spring of 1980, United States Drug Enforcement Administration Special Agent Tony King and Becky Woodbury, a paid informant, began investigating drug trafficking activity conducted by Appellant Johnston. On June 9, 1980, King arranged with Woodbury and Detective Barbara Schneider of the Indianapolis Police Department to purchase cocaine from Johnston. The next day, King, Woodbury, and Schneider, met to arrange the drug transaction. Woodbury telephoned Johnston at home, asked if the one half ounce was still on for that day and when Johnston said yes, she told him she would be there in one hour. Schneider monitored the telephone conversation and taped it. Then Officer Schneider equipped herself with a body transmitter concealed beneath her clothing, and Special Agent King gave her $1,000.

Schneider and Woodbury went to Johnston's residence with King and his partner following them in another car. When they reached the residence, Schneider and Woodbury went inside while King and his partner waited in the car nearby, monitoring the conversation. Schneider testified at trial that Johnston took a set of keys from a built-in bookshelf in his living room, went to the garage and returned with a plastic bag containing a white powder. Then Johnston went to his bedroom and came back with a smaller bag of white powder rolled up in the shape of a tube. He gave it to Schneider in exchange for $1,000. Robert Krefft, a forensic chemist with the Federal Drug Administration, testified that after performing a series of tests on the powder, he found 5.28 grams of pure cocaine in the sample.

I

Johnston claims his motion to dismiss should have been granted when the State failed to produce its informant for deposition. However, Woodbury's unavailability for deposition and trial was caused by Johnston when he fled the jurisdiction, failed to appear for trial on another charge, and remained a fugitive for four years. Police lost contact with Woodbury sometime during the years Johnston remained at large. Once Johnston was apprehended, police contacted the phone numbers and addresses of her relatives which they had retained, but were unable to find Woodbury. See Johnston v. State (1988), Ind., 517 N.E.2d 397. However, several months before the original trial was scheduled to occur in 1981, Johnston did take Woodbury's deposition. Woodbury's 1981 deposition was available to Johnston to present as evidence. Additionally, Woodbury's testimony was not essential to Johnston's conviction. Johnston was convicted on the testimony of Special Agent King and Officer Schneider giving specific details of the drug transaction. Thus, as Johnston's four-year absence caused Woodbury's unavailability for trial, Woodbury's 1981 deposition was available to Johnston for use at trial, and there was ample evidence from two other witnesses of Johnston's guilt, the trial court did not abuse its discretion in refusing to grant Johnston's motion to dismiss.

II

Johnston claims the trial court erred in admitting testimony regarding conversations between investigating officers and informant Woodbury. Johnston claims the statements can only be construed as evidence offered to prove the alleged fact that he was a drug dealer and thus constitutes inadmissible hearsay. The following testimony of Special Agent King, concerning a statement made to him by informant Woodbury was admitted into evidence over Johnston's hearsay objections:

Q. Okay. And what did Ms. Woodbury tell you regards to Mr. Johnston?

A. Basically that Mr. Johnston was involved in drug trafficking activities--

MR. DILLON: Your Honor, I'm going to object; that's hearsay.

MR. PETIT: Your Honor, I believe it's offered for the purpose of the initiating of the investigation, not for the truth of the matter asserted and I have case right on the point if the Court would prefer to--

MR. DILLON: Your Honor, this witness apparently is not going to be here and now we're going to allow statements from her and not even recorded into evidence at this point; I would think it's classic hearsay.

MR. PETIT: Again, Your Honor, it's not offered for the truth, but for why this initiation on Mr. Johnston, this particular defendant was initiated.

JUDGE BARR:

At this, on this response, the Court's going to overrule the objection. Ladies and Gentlemen, this evidence is not being received into evidence for the truth of the...