Koke v. State

• Citation: 498 N.E.2d 1326
• Decision Date: 30 October 1986
• Docket Number: No. 45A03-8607-CR-201,45A03-8607-CR-201
• Parties: Richard C. KOKE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1326

498 N.E.2d 1326

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

No. 45A03-8607-CR-201.

Court of Appeals of Indiana,

Third District.

Oct. 30, 1986.

Nick J. Thiros, Cohen & Thiros, Merrillville, Ellen S. Podgor, Nicholls & Podgor, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Richard Koke was convicted of dealing in cocaine, a class B felony, ¹ and received a sentence of two (2) years. On appeal Koke raises the following issues:

I. The trial court erred in excluding as hearsay conversations of the defendant and the confidential informant.

II. The trial court erred in permitting the State to discuss during opening argument conversations with the confidential informant when the defendant was prohibited from doing likewise.

III. There was insufficient evidence of defendant's predisposition to commit the crime charged.

IV. The defendant was unduly prejudiced by the State's delay in bringing charges against the defendant.

V. Trial counsel was incompetent in his representation of defendant.

The State presented evidence that on July 10, 1984 Officer Ronald Hernandez and a confidential informant, Bruce Krouse, met with a surveillance team before going to Koke's house to try and purchase cocaine. Hernandez was wired with a voice transmitter that could be monitored by the surveillance team. Hernandez testified that Krouse went to the door of Koke's residence and returned to the car with Koke. Hernandez told Koke he wanted an eighth of an ounce of cocaine and Koke told him he was unable to contact his supplier; there was nobody answering the phone. Koke told them to come back later. The surveillance officer testified to hearing a voice which was that of neither Hernandez nor Krouse say, "Let's set something up for tomorrow."

The next day, July 11, according to Hernandez's testimony, he and Krouse went to Koke's home again. Hernandez was fitted with a transmitter again and the surveillance team was nearby.

Twice Koke told Hernandez and Krouse that he was unable to contact his supplier and asked them to return later. Each time Hernandez and Krouse left for twenty or thirty minutes and returned. The third trip back to Koke's, Koke said he had made contact with the supplier and the three men left with Hernandez driving. Enroute, Koke allegedly told Hernandez that they could go to Dolton if they wanted to get good, hard-rock cocaine for three hundred thirty dollars ($330.00), or get average cocaine in Cedar Point for the same price. Hernandez said he did not want to cross the state line, so Koke directed him to the Cedar Point apartment complex. The only conversation heard by the surveillance team was Officer Hernandez counting out money after the threesome arrived at the apartment complex. The poor transmission was variously attributed to distance, weak batteries or other possible interference.

Hernandez testified that Koke directed him to park away from the building because the supplier did not want to meet any new people or let it be known where he lived. Koke went inside the building, but returned a short time later and said the supplier was not home but they were to wait. Sometime later, as Koke waited in front of the building, a car pulled up and a man and woman got out. Koke spoke with them and all three entered the apartment building. About fifteen (15) minutes later, Koke returned and gave Hernandez three small packages, saying it was more than three grams. The three men left the area and Koke was dropped off elsewhere. ²

I. Hearsay

Before trial, the State made a motion in limine to prevent any mention of the whereabouts of the informant Krouse. Koke's trial counsel intended to introduce evidence of statements made by Krouse to Koke and wanted to make a showing of a good faith effort to locate Krouse in order to take advantage of the Declarant Unavailable exception to the hearsay rule. He cited Federal Rule 804(a)(5) as authority. The trial court granted the State's motion, ruling that Indiana had not adopted the declarant unavailable exception to the hearsay rule. The court also admonished defense counsel not to refer to the matter in opening statement.

Defense counsel's position at trial was and is now that the conversations between Krouse and the defendant are crucial to the defense of entrapment and that the trial court erred in excluding such statements. We agree that the evidence should have been admitted, but hasten to point out that the prosecution, defense counsel, the trial court and appellate counsel for both the State and the defense appear to have labored under the misapprehension that the informant's statements were hearsay in the first place. Thus, the trial court sustained on hearsay grounds the prosecution's objections to evidence of what Krouse said; defense counsel sought to have the statements admitted under a federal exception to the hearsay rule; and appellate counsel argues for admissibility under the res gestae and state of mind exceptions to the hearsay rule.

In Patterson v. State (1975) 263 Ind. 55, 324 N.E.2d 482, Justice Prentice defined hearsay as "testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertor." 324 N.E.2d at 484. In Harvey v. State (1971) 256 Ind. 473, 269 N.E.2d 759, Justice DeBruler quoted with approval from Wigmore on Evidence as follows:

"The theory of the Hearsay rule (ante, Sec. 1361), is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the Hearsay rule.

"The prohibition of the Hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." 6 Wigmore, Evidence, Sec. 1766 (3d ed. 1940).

269 N.E.2d at 761.

The statements by Krouse which Koke sought to introduce involved Krouse's use of drugs (Record p. 245), his difficulties with the police (Record p. 242) and his repeated requests that Koke do him a favor (Record p. 250, 251, 257). At one point, in response to a prosecution objection, the court admonished defense counsel that "[a]nything the C.I. [confidential informant] said to him is hearsay. I may point out that there is another way of doing this. You can introduce the C.I. and have him available, but that has not been done. You cannot do indirectly what you cannot do directly." Record p. 252.

All of Krouse's statements were offered, not to prove the truth of any of the assertions contained in them, but as evidence of the effect they had upon Koke and upon his decision to participate in the drug transaction. An utterance offered to evidence the state of mind which ensued in another person as a consequence of the utterance does not run afoul of the hearsay rule--it simply is not inadmissible hearsay. Bean v. State (1978) 267 Ind. 528, 371 N.E.2d 713; 6 Wigmore, Evidence Sec. 1789 (Chadbourn rev. 1976). The fact that the statements were self-serving goes to their weight, not their admissibility. Smith v. State (1986) Ind., 490 N.E.2d 300, 302.

Since Koke's counsel did not make an offer to prove on any occasion that an objection was raised on hearsay grounds, the error in excluding the evidence was waived. Starkey v. State (1977) 266 Ind. 184, 361 N.E.2d 902. We conclude, however, that the exclusion of Krouse's declarations was harmless. Koke testified that he and Krouse had been friends for a number of years and at the time of the drug buy Krouse was providing Koke with transportation to and from summer school. During direct examination of Koke the following exchange took place:

Q. In the conversation with Bruce on that day as you are going back and forth to school, sir, did he mention again, this buy?

A. Yes sir, he mentioned that he had a friend that was a big wheel and had all kinds of money, and supposedly, you know--

Q. Did he ask you to help him?

A. Yes sir.

Q. He asked you to help his friend?

A. He asked me to meet his friend.

Q. What did he say to you that day on the 10th, sir?

A. On the way to school in the morning he first expressed to me the fact he and this buddy of his had just gone on a crime and gotten a large amount of money and that he and his buddy wanted to get some cocaine and go out partying with a couple of women. They had extra cash, wanted to go to shows and stuff, but he was really afraid of the fact since he was in so much trouble and the police watching him and everying [sic], he didn't want to go up to people he knew because they knew he got in trouble, and I guess he couldn't get it somehow, that is what he expressed across to me.

Record p. 249.

At another point Koke testified:

Q. Who said how much quantity to buy?

A. He did, he and Bruce.

Q. Who said how much it would cost?

A. Bruce Krouse.

Q. He knew exactly the price?

A. Yes.

Q. Who had the money?

A. Officer Hernandez.

Q. From the spot where you made that temporary stop to the time you got to that complex, did you have any...