Mack v. State

• Citation: 457 N.E.2d 200
• Decision Date: 22 December 1983
• Docket Number: No. 482S163,482S163
• Parties: Steven R. MACK, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 200

457 N.E.2d 200

Steven R. MACK, Appellant, v. STATE of Indiana, Appellee.

No. 482S163.

Supreme Court of Indiana.

Dec. 22, 1983.

James W. Skinner, Portage, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Steven R. Mack, defendant-appellant, was convicted by a Porter County jury of two counts of dealing in marijuana in excess of thirty grams, a class D felony, Ind.Code Sec. 35-48-4-10, and was found to be an habitual offender, Ind.Code Sec. 35-50-2-8. The trial judge imposed two concurrent two year terms of imprisonment for the dealing offenses and enhanced that sentence by thirty years because of the habitual offender finding. In his direct appeal, defendant raises these issues:

(1) Whether he was denied his constitutional rights because of the process used to select a jury panel.

(2) Whether the trial court erred by refusing to give defendant's tendered final instruction on the issue of entrapment.

(3) Whether there was insufficient evidence to show defendant's predisposition to commit these dealing crimes and to support the verdict.

(4) Whether the habitual offender finding was contrary to law and not supported by sufficient evidence.

I.

Defendant first argues that he was denied his right under the Sixth and Fourteenth Amendments to the United States Constitution to a trial by a fair cross-section of the community because of the procedure employed in Porter County of selecting jurors solely from real estate property tax schedules. He claims that this procedure resulted in the under-representation of those persons who did not own real property, especially the group of eighteen to twenty-four year olds, and thus produced a jury not fairly representative of the community. Defendant's pre-trial motion to dismiss the jury panel and venire was denied on the first day of trial.

We first note that while defendant offered into evidence factual material which formed the basis for his allegations pursuant to a stipulation with the State, and the trial court granted his motion to incorporate this transcript and documentation, this material is not included in the record on appeal. There is no evidence in the appellate record which shows how the jury venire was selected or whether there was any numerical disparity between the group of eighteen to twenty-four year olds living in the community and those selected for service on Porter County jury panels. Assertions of error not disclosed by the record are not available for review by this Court. Daniels v. State, (1980) Ind., 408 N.E.2d 1244; Brewer v. State, (1979) 271 Ind. 122, 390 N.E.2d 648; Morris v. State, (1977) 266 Ind. 473, 364 N.E.2d 132, cert. den'd. (1977), 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462. Defendant has not made a sufficient showing that the method used in Porter County to select jury venires at the time of his trial resulted in the exclusion or under-representation of any group which would prevent such panels from being fairly representative of the community.

Furthermore, even if defendant's contentions had been properly presented and supported by evidence on the record, we have held numerous times that the exclusive use of property tax rolls in the selection of Porter County jury venires does not violate a defendant's right to a trial by a fair cross-section of the community. Thomas v. State, (1983) Ind., 443 N.E.2d 1197; Tawney v. State, (1982) Ind., 439 N.E.2d 582; Grassmyer v. State, (1981) Ind., 429 N.E.2d 248; Daniels, supra. Defendant has failed to show that he was denied any constitutional right with respect to the selection of the jury venire.

II.

While admitting the acts involved in the dealing offenses, defendant raised the defense of entrapment at trial. He tendered his Final Instruction No. 6 which read:

"The efficacy of the defense of entrapment is determined by whether the Defendant was induced to commit the crime by police activity or whether he was already predisposed to do so. This determination is based upon the Defendant's state of mind.

If you find that the criminal design was implanted in the Defendant's mind by the police activity then the Defendant was entrapped and you should find him not guilty.

If you find that the criminal design originated in the Defendant's own mind, then he was not entrapped, and should be found guilty as charged."

The trial judge refused to give this instruction, but did give Indiana Pattern Jury Instruction (Criminal) Section 10.17, which recited the entrapment statute, Ind.Code Sec. 35-41-3-9, and which read:

"The defense of entrapment is defined as follows:

'It is a defense that:

The prohibited conduct of the person was the product of a law-enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and the person was not predisposed to commit the offense.

Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.'

If you find that a law enforcement officer, or his agent, used persuasion or other means likely to cause the defendant to engage in prohibited conduct and the defendant was not predisposed to commit the offense, you should find the defendant not guilty.

The defense of entrapment does not apply where a law enforcement officer, or his agent, merely afford the defendant the opportunity to commit an offense.

The State has the burden of disproving this defense beyond a reasonable doubt."

It is not reversible error for the trial court to refuse to give a tendered instruction when the substance of that instruction is covered adequately by another instruction given by the court. Gilmore v. State, (1981) Ind., 415 N.E.2d 70. The instruction given here defines the defense of entrapment as provided for by statute, indicates when the defense does or does not apply and allocates the burden of proof. We find that it covers the substance of defendant's tendered instruction and the trial court did not err in refusing to give that instruction.

III.

Defendant next claims that the verdicts on the dealing offenses were not supported by sufficient evidence and were contrary to law because the evidence established that he was entrapped, and the State failed to prove his predisposition to commit these offenses beyond a reasonable doubt. As the trial court instructed the jury, Ind.Code Sec. 35-41-3-9 provides:

"(a) It is a defense that:

(1) The prohibited conduct of the person was the product of a law-enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and

(2) The person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment."

When the defense of entrapment is raised, the successful prosecution of the case becomes dependent upon whether the State can prove that the prohibited conduct of the defendant was not the product of the efforts of the law enforcement officials involved or that the accused was predisposed to engage in such conduct. Ryan v. State, (1982) Ind., 431 N.E.2d 115; ...