Kats v. State

• Decision Date: 10 September 1990
• Docket Number: No. 50A03-8908-CR-348,50A03-8908-CR-348
• Citation: 559 N.E.2d 348
• Parties: Richard KATS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 348

559 N.E.2d 348

Richard KATS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 50A03-8908-CR-348.

Court of Appeals of Indiana Third District.

Sept. 10, 1990.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Richard Kats (Kats) appeals his conviction of Dealing in Cocaine, a Class A felony, presenting the following issues for our review:

I. Whether the trial court erred by allowing members from the jury trial of a co-defendant to sit on Kats' jury panel?

II. Whether sufficient evidence exists to support Kats' conviction of conspiracy to deal cocaine, a Class A felony?

III. Whether the trial court should have granted the defense of entrapment as a matter of law?

IV. Whether sufficient evidence exists to overcome the defense of entrapment?

V. Whether the trial court erred by denying the Defendant's tendered instruction on the presumption of innocence and conflicting evidence?

VI. Whether the twenty year sentence that Kats received was disproportionate to the crime?

Rocky Roe was to work off charges by acting as a confidential informant to uncover drug dealers, and, in September of 1988, Police Officer James Wedel met with Rocky Roe and discussed the possibility of purchasing narcotics with Roe going undercover.

At some point in October, Roe and Wedel went to a residence which, according to Roe, was Kats', and also which, again according to Roe, was a place where Wedel could obtain drugs. While Wedel waited in the car, Roe went to the door, obtained entry and supposedly purchased drugs from Kats. However, Roe was the only witness to the "transaction," as there were no controls over the situation.

At a later date, Wedel met with Roe at the intersection of State Roads 6 and 31. With Roe were Richard Kats and Theresa Lett (Lett). At that time, Roe left their car and approached Wedel's car, where he obtained $300 front money. However, Roe later returned the $300 to Wedel, because he did not effect a buy.

Later Wedel met with Roe at the intersection of State Roads 6 and 31. As before, Richard Kats and Theresa Lett sat in the front seat of the car; Roe sat behind the driver's seat with two children sitting next to him. At this time, Wedel approached Kats' car, and Wedel gave Kats $300.00 for the "front money." Wedel and Kats agreed to meet later that day to complete the transaction. According to the testimony, Roe provided Kats with the cocaine to give to Wedel. Later, the same group met in a Hook's drugstore parking lot. When Kats gave Wedel a bag containing over 3 grams of cocaine, Wedel signalled to nearby undercover officers, and the group was arrested.

Upon searching Kats, the police found 3 grams of cocaine in his jacket pocket; a search of Lett revealed marijuana in her purse. In the car, the police discovered marijuana in the glove compartment and in a box in the trunk of the car. The police also discovered cocaine under the mat behind the driver's seat, where Roe was sitting. Underneath the driver's seat itself, the police found a cut down straw and a razor blade, two items associated with drugs.

Kats contends that he was desperately in need of money. When he approached Roe for a loan, Roe refused, but convinced him to obtain the money through Wedel. Although Kats continually expressed grave misgivings, because of his dire situation, Kats was convinced by Roe to join in the drug transaction. Apparently, Kats had never been involved with drugs; he has no criminal record.

I. The Jury Panel

Kats claims that a new trial is warranted because one of the members of the jury that convicted Kats' co-defendant, Theresa Lett, was among the venire group from whom Kats' jury was ultimately chosen.

Prior to the questioning of the veniremen, Kats moved, via a motion in limine, that no questions be asked concerning the previous trial and conviction of his co-defendant, Lett. This was motivated by a fear that, given the intense publicity surrounding Lett's trial and conviction, mere reference to Lett could inflame the veniremen who had not previously made a connection between the two trials.

Consequently, the court granted Kats' motion, and the prospective jurors were not specifically questioned as to whether they had heard of or been involved with the Lett case. Additionally, via a court list, the court attempted to remove Lett's jury members from Kats' jury panel. Eight people were excused; a ninth member inadvertently remained on the panel.

According to Kats, although this ninth member was dismissed during voir dire, prior to the impaneling of the jury, this member had had the opportunity to talk among and influence those people ultimately chosen to sit upon his jury. In support, Kats refers to Lindsey v. State (1973), 260 Ind. 351, 295 N.E.2d 819; however, we note that Lindsey addresses a situation which occurs "after the jury has been selected and the trial is in progress." Seeley v. State (1989), Ind., 544 N.E.2d 153, 156.

In Seeley, although the defendant moved to strike the entire venire because it was "tainted" by the panelist who had overheard another member refer to the status of the crime, the court denied the defendant's motion. Our Supreme Court pointed out that "the parties had every opportunity to question each of the prospective jurors prior to finally accepting the jury." Seeley, supra, at 156. The Seeley court concluded by noting that the circumstances did not indicate "evidence of prejudice which would require the cause to be removed from the jury." Id.

In Kats' case, Kats had every opportunity to question the prospective jurors after the eight people had been removed. While such questioning led to the discovery of a person who had sat upon the Lett case, the record indicates that Kats ignored an early opportunity to object to the presence of Lett's jury member.

THE COURT: Do any of you know the Defendant, Richard Kats, spelled K-A-T-S, and he's from Rochester, Indiana?

* * * * * *

PROSPECTIVE JUROR: I sat on the Jury for Theresa.

THE COURT: Okay, but you're not personally acquainted with Mr. Kats?

PROSPECTIVE JUROR: No.

Record, p. 144, 11. 8-10; p. 145, 11. 5-8. As the above colloquy shows, Kats made no objection at that time.

Later, when the prospective juror again revealed her involvement with the Lett case, the State, not Kats, asked to approach the bench.

MR. PALMER [the State]: Okay, the rest of you were on a civil case, an auto accident? (Prospective Jurors indicate affirmative.)

PROSPECTIVE JUROR: The Theresa Lett case.

MR. PALMER: You served on the Theresa Lett case?

PROSPECTIVE JUROR: (affirmative)

MR. PALMER: Okay. Can we approach the bench, Your Honor?

THE COURT: Okay.

(Counsel approach bench.)

MR. PALMER: She slipped through, somehow.

MR. HAYES [counsel for Kats]: That's what I thought she said.

Record, p. 150, 11. 16-21; p. 151, 11. 1-7. This prospective juror was immediately excused. Thus, unlike the situation in Seeley, Kats' jury was never impaneled.

Finally, Kats presents no evidence which shows that the extended presence of the "ninth" juror adversely affected his case, nor does he indicate how this juror damaged his case beyond any damage arguably committed by the presence of the eight members previously excused. Accordingly, as the determination of "juror misconduct is a matter within the trial court's discretion," Lopez v. State (1988), Ind., 527 N.E.2d 1119, 1130, we find no abuse of discretion warranting a new trial.

II. Sufficiency of Evidence

Kats also contends that the evidence is insufficient to support his conviction of Conspiracy to Deal Cocaine, a Class A felony.

When reviewing to determine sufficiency, this Court neither reweighs the evidence nor judges witness credibility, but looks instead to the evidence most favorable to the verdict along with its reasonable inferences. Mitchell v. State (1989), Ind., 541 N.E.2d 265, 267. We will reverse only when there is no evidence of probative value which would allow a reasonable trier of fact to infer guilt beyond a reasonable doubt. Id.

Here, Kats contends that "there is nothing in the record to show that Lett ever did anything but sit in the car; ... there is no evidence of an agreement, nor is there any circumstantial evidence from which an agreement could be inferred. Finally, there is no evidence of any overt actions at all on the part of Lett in furtherance of the conspiracy." Appellant's Brief, pp. 18-19.

We agree. To convict upon a charge of conspiracy, the following elements must be proven: the "intent to commit a felony, an agreement with another person to commit the felony, and an overt act in furtherance of that agreement." Hopper v. State (1989), Ind., 539 N.E.2d 944, 946.

A Seventh Circuit case specifically held that mere knowledge of, or presence at, a drug transaction and association with co-conspirators are insufficient evidence of that person's agreement to conspire. In United States v. Williams (7th Cir.1986), 798 F.2d 1024, ... the Seventh Circuit stated that the evidence established only presence or knowledge, before adamantly reiterating that:

This court has emphasized several times, however, that mere association with co-conspirators or presence at the scene of an offense or knowledge that something illegal is going on is insufficient to establish membership in a conspiracy under the slight evidence standard. (Emphasis added.)

Williams, supra, at 1028.

Here, the testimony reveals that Lett did no more than associate with Kats and that she was present at a transaction. The record reveals no additional evidence which would indicate the presence of a conspiracy between Kats and Lett. The inferences available may point to an agreement between Roe and Kats, but this was not the crime charged in the information. The information reads:

Affiant, ..., says that: On or about the 12th day of November 1988, at and within the County of Marshall, State of Indiana, one Richard...