Moore v. State, 283S49

• Decision Date: 12 December 1984
• Docket Number: No. 283S49,283S49
• Citation: 471 N.E.2d 684
• Parties: Garry P. MOORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 684

471 N.E.2d 684

Garry P. MOORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 283S49.

Supreme Court of Indiana.

Dec. 12, 1984.

Jo Angela Woods, Columbus, for appellant.

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

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Dealing in Cocaine, a class A felony, Ind.Code Sec. 35-48-4-1 (Burns Supp.1984) and was sentenced to thirty (30) years imprisonment and fined $5,000. His direct appeal presents seven (7) issues for our review, as follows:

(1) Whether the trial court erred when it refused to dismiss the charge or, in the alternative, to suppress the testimony of a confidential informant;

(2) Whether the trial court erred when it refused to give Defendant's tendered instruction number 2;

(3) Whether the evidence was sufficient to sustain the conviction;

(4) Whether the trial court erred in allowing a police officer to testify that he had had difficulty in enlisting the aid of informants during his investigation of the Defendant;

(5) Whether the trial court erred in allowing a police officer to testify that the informant was reliable;

(6) Whether the trial court erred in allowing the informant to explain why he was afraid of the Defendant;

(7) Whether the trial court erred in overruling Defendant's motion for mistrial.

The record discloses that on September 16, 1981, the Defendant sold a confidential informant 6.8 grams of cocaine.

ISSUE I

On June 15, 1982, the court ordered the State to produce the confidential informant or disclose his address so that the Defendant could take his deposition. On June 29, 1982, Defendant filed his "Notice of Taking Deposition" accompanied by a subpoena for Rickie Karnes, the informant In Lloyd v. State, (1983) Ind., 448 N.E.2d 1062, 1067, this Court noted:

because the State had not disclosed his address. The deponent, however, failed to appear on July 8, 1982, the scheduled date of the deposition. Defendant then sought dismissal of the charge or, in the alternative, suppression of the informant's testimony. The trial court, on July 19, 1982, denied the motion, stating that the deponent had been made available to Defendant's counsel for a deposition on July 15, 1982. It further noted that Defendant's trial was scheduled to begin on July 26, 1982, but that it would consider a motion for continuance to allow Defendant more time to prepare in light of the July 15, 1982, deposition disclosures. Defendant did not request a continuance of the trial date, yet he now claims that he and his attorney were prejudiced because they "were hampered in their preparation for trial" and that the trial court abused its discretion in not imposing sanctions against the State for its late compliance.

"[U]nless the State's action in violating the discovery order is in such bad faith or is so misleading that the only way to avoid the denial of a fair trial for the defendant is to exclude the State's evidence, a continuance is the most appropriate remedy. The choice of the remedy lies within the discretion of the trial judge and will not be overturned unless that discretion has been clearly abused." (citations omitted).

In the case at bar, Defendant was able to depose the confidential informant eleven days prior to the date of trial. Furthermore, the trial court suggested that Defendant request a continuance, but Defendant did not avail himself of that opportunity, indicating that he was adequately prepared to begin the trial on July 26. Defendant has not shown how he was prejudiced by the State's tardy compliance with the discovery order, and we find no abuse of discretion by the trial court in its ruling.

ISSUE II

Defendant argues that the trial court erred in refusing to give his tendered instruction number 2 which would have advised the jury that it could find him guilty of the lesser included offense of possession of cocaine, a class C felony. We agree with Defendant that possession of cocaine is an "inherently included" lesser offense of delivering cocaine, inasmuch as it is impossible to commit the greater offense without committing the lesser offense. See Lawrence v. State, (1978) 268 Ind. 330, 337-338, 375 N.E.2d 208, 212-213; Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098, 1105-1106. However, our inquiry does not end there. We must next determine whether there was "evidence of probative value from which the jury could properly find the defendant guilty of such lesser included offense." Hash v. State, (1972) 258 Ind. 692, 698, 284 N.E.2d 770, 774. "The trial court is justified in finding the existence of such requisite evidence where upon careful review of the evidence produced to prove the element or elements differentiating the alleged greater and lesser offenses, the trial court concludes that such evidence has substantial probative value and is not in serious dispute." Lawrence v. State, 268 Ind. at 338, 375 N.E.2d at 213.

In the case at bar, the element distinguishing the lesser and greater offense is delivery. We, therefore, look to see if there was probative evidence that the Defendant committed the crime of possessing cocaine and either affirmative evidence that he did not commit the crime of delivery of cocaine or an absence of probative evidence that he did. See Jones v. State, (1982) Ind., 438 N.E.2d 972, 976. Substantial evidence was produced that Defendant delivered cocaine to Karnes. Karnes testified that Defendant sold cocaine to him; a tape recording of the transaction demonstrated that he did so, and Defendant himself testified that he sold cocaine to Karnes. This evidence is not disputed, notwithstanding that Defendant raised the defense of entrapment; hence, there was no error in refusing to give the tendered instruction on lesser included offenses.

ISSUE III

Defendant raised the defense of entrapment and claims that although there was ample evidence to show that he was predisposed to sell marijuana, the evidence was insufficient to show that he was predisposed to sell cocaine. When a defendant raises the defense of entrapment, the State has the burden of proving, beyond a reasonable doubt, that the defendant's conduct was not the product of the efforts of law enforcement officials or agents or, alternatively, that the accused was predisposed to engage in the conduct. Marts v. State, (1982) Ind., 432 N.E.2d 18, 22; Ryan v. State, (1982) Ind., 431 N.E.2d 115, 117. Whether the Defendant was entrapped was a question for the jury, and on appeal we review the issue by the same standard that we apply to other challenges to the sufficiency of the evidence. Martinez v. State, (1983) Ind., 451 N.E.2d 39; Marts v. State, 432 N.E.2d at 22.

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted).

Loyd v. State, (1980) 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Specifically, Defendant argues that the only evidence of his predisposition to sell cocaine came from confidential informant Rickie Karnes and that his testimony "fails to have such credibility as to constitute evidence of probative value." (Brief of Appellant at p. 21). Inasmuch as there were three recordings of telephone conversations between Defendant and Karnes admitted into evidence and a tape recording of the actual transaction, we do not agree that all of the evidence of Defendant's predisposition to sell cocaine came from Karnes. In any event, we do not judge the credibility of witnesses. The evidence revealed that the Columbus Police Department utilized Rickie Karnes, a friend of the Defendant, as an informant in its narcotics investigation of the Defendant. Karnes purchased marijuana from Defendant on July 27, 1981 and on August 18, 1981. On September 2, 1981, he purchased approximately three grams of cocaine from the Defendant at his quoted price of $275.00. Karnes testified that on September 14, he and the Defendant were talking and that he told Defendant that he "hadn't done no coke in awhile (sic)" and that Defendant responded that he could get some. On September 15, 1981, Karnes contacted Defendant twice, and the tape recording of one of the two telephone conversations revealed the following exchange:

"KARNES: Well, I's tryin' to see if you can get a 'hold of some of that cola again.

MOORE: Yeah.

KARNES: How much, how much did you say a quarter of that run?

MOORE: Oh, what did I sell you that eighth for?

KARNES: I think it was two seventy-five.

MOORE: Fine, let's see. Two seventy-five. Probably around five, five and a quarter, somewhere like that.

KARNES: Is it as good a coke as that other?

MOORE: Yeah. A lot better.

KARNES: When do you think you can get it?

MOORE: Well, as soon as you get over here with the money, I can go get it."

On September 16, 1981, Karnes was searched and given $525. He was then equipped with a body microphone. Subsequently he telephoned the Defendant who asked him, "You gonna' come over and get that." Karnes responded that he would be there shortly. Karnes drove to Defendant's house with police officers following him. The tape recording of the drug transaction revealed that Defendant and Karnes entered Defendant's house, weighed the cocaine, used some of it, and completed the Notwithstanding Defendant's claim that he only sold cocaine to Karnes so that Karnes would stop "hassling" him, the tape recording of the transaction reveals no reluctance on Defendant's part to sell the cocaine. The evidence was sufficient to show that he was...