Lee v. State
| Decision Date | 18 December 1979 |
| Docket Number | No. 1-579A133,1-579A133 |
| Citation | 397 N.E.2d 1047 |
| Parties | Charles LEE, Jr., Thomas Knight, Dave Martin, Vernon Carter, Louis Hollingsworth, Mike Runau, Defendants-Appellants, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jack N. VanStone, Thomas G. Krochta, Rice & VanStone, Evansville, for Charles Lee, Jr., Thomas Knight, Dave Martin, Vernon Carter, Mike Runau.
John D. Clouse, Michael C. Keating, Evansville, for Louis Hollingsworth.
Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Defendants-appellants Dave Martin (Martin), Thomas Knight (Knight), Vernon Carter (Carter), Charles Lee, Jr. (Lee), Louis Hollingsworth (Hollingsworth), and Mike Runau (Runau) were convicted of conspiracy to commit professional gambling.
They raise the following issues for our review:
(1) Whether the trial court erred in overruling the defendants' motion to dismiss.
(2) Whether the trial court erred in denying the defendants' motion for separate trials.
(3) Whether the trial court erred in admitting evidence relating to the charges without limitation as to the time of the occurrences.
(4) Whether there was sufficient evidence introduced at trial to sustain the verdict of the jury.
(5) Whether the trial court erred in denying defendants' motion to correct judgment.
We affirm.
The evidence most favorable to the State discloses that Knight operated a tavern in Evansville by the name of "Knight's Nite Spot." In a room in the rear of the same building gambling operations were conducted. The room was equipped with a modified pool table upon which dice was played. A blackjack table, with high stools around it upon which the customers could and did sit, was provided. Food, beer, and coffee were served without charge to customers and persons in attendance. Admittance was gained to the room by pressing a buzzer, whereupon a door attendant would then scrutinize the person seeking admittance through a peephole before allowing him to proceed. One doorkeeper, employed by Knight, testified that it was his duty to attend the door, to keep out undesirables, and to watch for the police. Blackjack and dice were played for money, some customers winning or losing as much as $500 in a single evening. Customers played the house, not each other. Payroll checks were cashed. Chips, in varying denominations from one dollar to twenty-five dollars, were sold to customers by attendants, and thereafter cashed, if any remained, at the close of play.
All of the defendants participated in one way or the other in the management and operations of the enterprise. Their duties varied, depending upon who was available, or working, and according to the exigency of the situation. They sold and cashed chips, were stickmen, attended the door, dealt cards, or acted in a supervisory capacity.
The room was maintained for gaming purposes for as much as two years continuously in Knight's Nite Spot, terminating there sometime in 1977. Thereafter, it was reestablished in what was described as the antique shop at 1021 Kentucky Avenue, just down the alley from Knight's Nite Spot. The new location, owned by Hollingsworth, was an old residential building. There, the gaming operation was renewed in the same manner as before, with all defendants participating as before. Operations, so far as the record discloses, terminated on January 13 or 14, 1978, when police officers began surveillance of the house.
Upon discovery of the police activity, the doorman alerted Knight, whereupon the games were stopped, and the equipment hidden. Some of the customers and some defendants stayed in the house the remainder of the night and into the next day, apparently to avoid detection. Police surveillance detected nine cars parked outside, and further detected numerous people entering and leaving the suspected premises.
Defendants argue that the trial court erred in overruling their motion to dismiss which stated that their prosecution was a result of selective and discriminatory enforcement of the gambling laws of Indiana. The gist of the defendants' argument is that while gambling laws were enforced against them, religious, social, and veterans organizations were allowed to conduct gambling operations without prosecution. Citing Yick Wo v. Hopkins, (1886) 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, they argue that they were denied equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article 1, § 23 of the Constitution of Indiana. Yick Wo is distinguishable from the case at bar in that it dealt with discriminatory enforcement of a city ordinance against a readily identifiable class, but the defendants before us are not part of a particular group which was singled out for prosecution.
In Highland Sales Corp. v. Vance, (1962) 244 Ind. 20, 186 N.E.2d 682, our Supreme Court dealt with an action by a department store and its employees who sought to enjoin the enforcement of a law which prohibited the operation of the store on Sunday. The appellants claimed that they were denied equal protection since other businesses such as drug stores, gasoline stations, and restaurants were allowed to operate on Sundays. The court stated that the failure to prosecute some who violate the law does not excuse violations by others, nor should it bar their prosecution. Also, there was no personal animosity which supported the discrimination argument.
Noting the judiciary's role in relation to a prosecuting attorney's discretionary power, the court said, at 689:
(Emphasis added.)
In light of the heavy case load facing a prosecuting attorney, it is clear that the failure to prosecute charitable organizations in no way establishes that the defendants were denied equal protection. The State showed that there was a reasonable basis for the way the gambling laws were enforced.
Hollingsworth and Runau allege that the trial court erred in denying their motions for separate trials pursuant to Ind.Code 35-3.1-1-11 (Supp.1979) which were filed on the morning of the trial. The statute reads as follows:
"(a) Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense with a view to the number of offenses charged, the complexity of the evidence to be offered, and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one (1) or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect either:
(1) a joint trial at which the statement is not admitted into evidence;
(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or
(3) granting the moving defendant a separate trial. In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.
(c) When such information would assist the court in ruling on a motion for a separate trial, the court may order the prosecutor to disclose to the court in camera any statements made by the defendants which the prosecutor intends to introduce in evidence at...
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