McGowan v. State

Citation671 N.E.2d 872
Decision Date30 September 1996
Docket NumberNo. 28A05-9507-CR-289,28A05-9507-CR-289
PartiesRichard McGOWAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana
OPINION

SHARPNACK, Chief Judge.

Richard McGowan appeals his conviction for dealing in cocaine, a class A felony. He raises six issues for our review which we consolidate and restate as:

(1) whether the evidence was sufficient to rebut McGowan's entrapment defense;

(2) whether the trial court erroneously instructed the jury as to the entrapment defense;

(3) whether the trial court properly ruled that the Indiana State Police Undercover Officer's policy manual was not discoverable;

(4) whether McGowan received the ineffective assistance of counsel; and

(5) whether McGowan's sentence was reasonable.

We affirm.

The facts most favorable to the judgment follow. In 1993, Detective Paul Andry of the Indiana State Police was conducting an undercover drug operation when he met Mike Nelson. Andry purchased cocaine from Nelson approximately three times over the next year. On one occasion, Nelson gave Andry a telephone number of a friend with whom he was staying.

On March 7, 1994, Andry called Nelson at Nelson's friend's place. McGowan answered the phone and told Andry that Nelson had been sent to jail on a burglary charge. Andry stated that Nelson was "not gonna be able to do [him] any good." Record, p. 745. McGowan responded that he might be able to "do [him] some good." Record, p. 746. McGowan further stated that he could not talk on the telephone, but that he would meet Andry in person.

Later that evening, Andry met with McGowan at the prearranged place. After discussing Nelson's situation, McGowan stated, "I can't do you any good tonight, but I'm getting ready to head to New York either tonight or tomorrow morning, and that's why I wanted to talk to you." Record, p. 757. Andry gave McGowan $300.00 as a down payment for the purchase of an ounce of cocaine. McGowan told Andry about his supplier and about the quality of the drugs.

A few days later, Andry began calling McGowan and leaving messages on his answering machine. On March 11, 1994, Andry contacted McGowan, and they arranged to meet. Andry wore a transmitter to the meeting. When Andry arrived, McGowan gave him a plastic bag containing 27.054 grams of cocaine. The men discussed future purchases, and McGowan stated that he normally sold "eight balls" for $300.00. 1 McGowan also indicated that he was planning to make another trip to New York in two to three weeks.

On April 29, 1994, Andry contacted McGowan to arrange another meeting. During the meeting, which Andry recorded, the men discussed the possibility of McGowan making another trip to New York to purchase cocaine. McGowan asked Andry to "front" him the money to purchase an ounce of cocaine and offered to make a special trip to New York to get Andry three ounces of cocaine. Record, p. 884. McGowan also indicated he had another source in Chicago where he could get less expensive drugs. The men agreed that Andry would pay $1250 for each ounce. However, because Andry believed that McGowan would not return with the cocaine, he did not give McGowan any money. As a result of the investigation, McGowan was charged with dealing in cocaine in violation of Ind.Code § 35-48-4-2.

On March 24, 1995, McGowan filed a motion requesting that the State produce any written policies or procedures of the Indiana State Police relevant to the performance of undercover investigations. On March 28, 1995, the State filed an objection to McGowan's motion arguing that the document was confidential and, therefore, that it was not discoverable. The trial court ordered that the State did not have to produce the manual to McGowan, but that it had to provide the manual for an in camera inspection. Later, after conducting the inspection, the trial court affirmed its initial order denying McGowan access to the manual.

On April 4, 1995, McGowan filed a motion in limine requesting that the State's witnesses not refer to any of his prior convictions, arrests, alleged misconduct, bad acts, or pending criminal prosecutions. This motion was granted.

On April 5, 1995, the jury found McGowan guilty of dealing in cocaine. After conducting an evidentiary hearing, the trial court sentenced McGowan to thirty years. McGowan now appeals his conviction and sentence.

I.

The first issue raised for our review is whether the evidence was sufficient to rebut McGowan's asserted entrapment defense. This defense is governed by I.C. § 35-41-3-9, which provides as follows:

"(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."

I.C. § 35-41-3-9. If the evidence shows police involvement in the transaction, the entrapment defense is raised; formal pleading of the defense is not required. Fearrin v. State, 551 N.E.2d 472, 473 (Ind.Ct.App.1990), trans. denied. However, the defendant must affirmatively raise the defense before the State is required to offer evidence to rebut the alleged entrapment. Id. Once the defendant has indicated his intent to rely on the defense and established police inducement, the burden shifts to the State to show beyond a reasonable doubt the defendant's predisposition to commit the crime. Dockery v. State, 644 N.E.2d 573, 577 (Ind.1994). If the defendant shows police inducement and the State fails to show predisposition to commit the crime charged, entrapment is established as a matter of law. Id.

Whether the defendant is predisposed to commit the crime is a question for the trier of fact. Id. Factors that suggest a predisposition to sell drugs include knowledge of drug prices, knowledge of drug sources and suppliers, use and understanding of terminology of the drug market, solicitation of future drug sales, and multiple sales to undercover officers. 2 Id. at 579, n. 7; Martin v. State, 537 N.E.2d 491, 495 (Ind.1989). Predisposition may also be established by evidence that the defendant possessed large amounts of contraband and that the defendant could readily access sources to buy contraband in a short period of time. Smith v. State, 565 N.E.2d 1059, 1063 (Ind.1991)

We review a claim of entrapment using the same standard that applies to challenges to the sufficiency of the evidence. Dockery, 644 N.E.2d at 578. We consider the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Id. We neither reweigh the evidence nor judge the credibility of the witnesses. Id. We will uphold the judgment where there is substantial evidence of probative value from which a reasonable trier of fact could infer that the defendant was guilty beyond a reasonable doubt. Id.

McGowan argues that he demonstrated police inducement as part of his entrapment defense. However, McGowan claims the State failed to rebut the defense by proving his predisposition to sell cocaine. He concludes that the entrapment defense was established as a matter of law and, therefore, that his conviction should be vacated.

Viewing the evidence most favorable to the judgment, we find sufficient evidence to support the conclusion that McGowan was predisposed to sell cocaine. When Andry made the initial telephone call to his previous contact Nelson, McGowan answered the phone and suggested that he might be able to "do [Andry] some good," since Nelson was in prison. Record, p. 746. They later met at a prearranged location and McGowan stated that he was leaving for New York the following day to buy some cocaine. McGowan quoted prices for the purchase of cocaine in terms of "eight balls" and ounces. He used drug market slang such as "copping off," "stepped on," and "cut". 3

A few days later, McGowan obtained an ounce of cocaine and sold it to Andry. McGowan agreed to obtain three ounces of cocaine for Andry if Andry would "front" him $1250. Record, p. 884. Finally, McGowan indicated that he knew a Chicago supplier to use if his New York connection did not materialize.

This evidence suggests that McGowan was predisposed to commit the offense. McGowan used drug terminology and was familiar with drug prices. He obtained a large amount of cocaine in a relatively short period of time and engaged in the solicitation of future drug sales. See Smith, 565 N.E.2d at 1063. In addition, he demonstrated his familiarity with two drug suppliers. This evidence is sufficient to rebut McGowan's entrapment defense and supports the finding that he was predisposed to sell cocaine. See Young v. State, 620 N.E.2d 21, 25 (Ind.Ct.App.1993), trans. denied; Martin, 537 N.E.2d at 495. Nevertheless, McGowan argues there is no evidence to support a finding that he would have sold the cocaine if he had not been "contacted and prompted by Andry." Appellant's brief, p. 16. He claims there is no evidence to demonstrate his predisposition other than his use of drug terminology, which McGowan maintains is widely known. However, this argument is merely a request to reweigh the evidence, which we may not do. See Dockery, 644 N.E.2d at 578.

Because the record demonstrates substantial evidence of probative value from which the jury could infer that McGowan was guilty of selling cocaine beyond a reasonable doubt, we will uphold the judgment. See Dockery, 644 N.E.2d at 578.

II.

The second issue raised for our review is whether the trial court erroneously instructed the jury about the entrapment defense. McGowan challenges three of the trial court's final instructions and claims the...

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3 cases
  • Albaugh v. State
    • United States
    • Supreme Court of Indiana
    • December 17, 1999
    ...logical that the defense is rebutted by demonstrating the nonexistence of one of those two elements.'" Id. (quoting McGowan v. State, 671 N.E.2d 872, 880 (Ind.Ct.App.1996)). The use of the entrapment defense in this case is highly unusual in two respects. First, we have never before been ca......
  • McGowan v. State
    • United States
    • Supreme Court of Indiana
    • December 19, 1996
    ...of Appeals noted apparent inconsistencies among prior decisions of this Court regarding the defense of entrapment. McGowan v. State, 671 N.E.2d 872, 880, (Ind.Ct.App.1996). To resolve this issue, we grant transfer and adopt the position taken herein by the Court of The defense of entrapment......
  • Salama v. State
    • United States
    • Court of Appeals of Indiana
    • January 27, 1998
    ...reviews a claim of entrapment using the same standard that applies to challenges to the sufficiency of the evidence. McGowan v. State, 671 N.E.2d 872, 877 (Ind.Ct.App.1996), aff'd in part, 674 N.E.2d 174 (Ind.1997). This Court will neither reweigh the evidence nor judge the credibility of t......

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