Shelton v. State
| Decision Date | 11 February 1997 |
| Docket Number | No. 59A01-9603-CR-72,59A01-9603-CR-72 |
| Citation | 679 N.E.2d 499 |
| Court | Indiana Appellate Court |
| Parties | Denver SHELTON and Kenneth Shelton, Appellants, v. STATE of Indiana, Appellee. |
Denver and Kenneth Shelton appeal their convictions, after a jury trial, of Road Hunting, a class C misdemeanor, defined as:
It shall be unlawful for any person to hunt, shoot, shoot at, or kill any animal or to shoot at any object from within, into, upon or across any public highway in this state.
Ind.Code 14-2-4-5(1) (Repealed by P.L.1-1995, § 91). The Sheltons raise five issues which we restate and consolidate into four, none of which constitute reversible error.
The facts in the light most favorable to the verdict reveal that an Indiana Conservation Officer [ICO] had received a report that persons had been shooting deer from their automobiles in Orange County. In response, three ICOs placed an electronic remote-control deer decoy in a field approximately ninety feet to the west of a gravel county road. The officers staked out the scene. Two officers concealed themselves across the road where they could see the decoy. When motorists would pass, one of these officers would operate the remote control decoy causing its head and tail to move. The other officer would videotape the scene. The third officer parked his car approximately a mile away to wait for the others' signal to apprehend any offenders.
In less than an hour, the Shelton brothers came along in their pickup truck. Denver was driving and Kenneth was sitting in the passenger seat. The truck stopped in the road with all four wheels remaining on the roadway directly across from where the officers were hiding. Kenneth aimed a gun out the window of the truck and fired two shots at the decoy, striking and disabling it.
Kenneth was charged with road hunting and Denver was charged with aiding the offense. Before trial, the trial court noted that the parties had stipulated that there had been no contact between the law enforcement officers and the Sheltons before the alleged offense and entered a detailed order in limine which prohibited the Sheltons from 1) raising the defense of entrapment without leave of the court, 2) raising any issue relating to trespassing (Sheltons assert the ICOs trespassed on private property in setting up the decoy), 3) raising any issue pertaining to illegal search and seizure, and 4) mentioning that they had permission to hunt on the land.
The jury returned guilty verdicts and this appeal ensued. Additional facts are supplied as necessary.
The Sheltons argue that they were entrapped by the law enforcement officers, noting that no crime would have been committed but for the officers' placement of the decoy on the property in question. The Sheltons argue that the trial court's pretrial orders erroneously deprived them of the opportunity to raise the defense of entrapment.
The defense of entrapment is defined by Ind.Code 35-41-3-9 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.
It has long been a basic tenet of Indiana law that, although the defendant bears the burden of placing his affirmative defense in issue, the prosecution bears the ultimate burden of negating any defense which is sufficiently raised by the defendant. Wolfe v. State, 426 N.E.2d 647, 652 (Ind.1981). If the State presents a prima facie case of guilt, then the defendant has the burden of going forward with an evidentiary basis to support his affirmative defense. Tyson v. State, 619 N.E.2d 276, 294 (Ind.Ct.App.1993), trans. denied, cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 562. Requiring a defendant to establish an evidentiary basis does not shift the burden of proof because the State retains the ultimate burden of proving guilt beyond a reasonable doubt which must entail proof rebutting the defendant's affirmative defense. Id.
It is incumbent upon the defendant to affirmatively raise the defense of entrapment. Strong v. State, 591 N.E.2d 1048, 1050 (Ind.Ct.App.1992), trans. denied. The entrapment defense is raised once the evidence includes a showing of police involvement in the criminal activity; no formal pleading of the defense is required. 1 Id. Once a defendant has indicated his intent to rely on the defense of entrapment and has established police inducement, the burden shifts to the State to show the defendant's predisposition to commit the crime. Dockery v. State, 644 N.E.2d 573, 577 (Ind.1994). The State must prove the defendant's predisposition to commit the crime beyond a reasonable doubt. Id. If the defendant shows police inducement and the State fails to show predisposition on the part of the defendant to commit the crime charged, entrapment is established as a matter of law. Id. However, even in the context of undisputed police participation in criminal activity, if evidence of the defendant's predisposition to commit the crime is presented, the defendant is not entitled to an instruction on the entrapment defense unless he presents evidence showing a lack of predisposition. Strong, 591 N.E.2d at 1051.
In the present case, the trial court's pre-trial order reads, in pertinent part, as follows:
unless and until the defendants shall, under I.C. 35-41-3-9(b) submit evidence of "conduct more than merely affording a person an opportunity to commit the offense," the question of entrapment shall not be mentioned in the presence of the jury but is reserved for argument by counsel upon notice and after removal of the jury from the courtroom.
(Emphasis original). The trial court's order merely placed the burden of going forward with some evidence of a lack of predisposition upon the Sheltons in order to satisfy their obligation to raise the entrapment defense. The undisputed facts of this case reveal that the officers involved did not directly participate in the criminal activity of road hunting, but merely placed the decoy deer off the road where the Sheltons could see it. Under these circumstances, we cannot conclude that the trial court committed reversible error in requiring the Sheltons to go forward with evidence to raise the entrapment defense. Tyson, 619 N.E.2d at 300 ()
The Sheltons argue that the other pretrial orders prohibited them from presenting an effective defense. Specifically, they argue that but for the pretrial order prohibiting them from mentioning that they had permission to hunt on the land, they would have presented evidence that they had pulled the truck off the road and were not guilty of the charged offense because the shots had been fired from off the road on the landowner's property. The Sheltons argue that they should have been permitted to introduce this evidence under the theory of res gestae which permits the introduction of happenings near in time and place which complete the story of the crime, citing Wilson v. State, 491 N.E.2d 537 (Ind.1986).
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. Evidence Rule 401; Hardin v. State, 611 N.E.2d 123, 127 (Ind.1993) (). Evidence which is not relevant is not admissible. Evid.R. 402. Error in the exclusion of evidence will not warrant reversal unless a substantial right of the party is affected. Evid.R. 103.
The trial court did not abuse discretion in prohibiting the evidence that the Sheltons had permission to hunt on the land. This evidence was of no consequence to the determination of the Sheltons' guilt. That the Sheltons may have had permission to hunt on the land in no way exonerated them from criminal liability for the charged offense of shooting at an object from the road. The trial court placed no obstacle before the Sheltons with respect to their defense that the shooting actually took place on the land, and not from the road. The Sheltons were free to rebut the State's proof, as shown by the officers' testimony, that the shots were fired from the road, and not from the land upon which they had been given permission to hunt. Therefore, we find no error.
Comment on Defendant's Silence--Mistrial
During opening arguments, the prosecutor stated:
[A conservation officer] will testify about a statement that Denver Shelton made; a voluntary statement; there was no questioning going on. Denver Shelton said to [the ICO] there at the scene, I think, ladies and gentlemen, I think you're going to find that that's a very important for a number of reasons, because the evidence will show that he did not say that shots weren't fired, he did not say shots weren't fired from the road, he did not say he didn't know shots were going to be fired, and he did not say that he tried to stop the other defendant, Kenneth, from trying to shoot.
The Sheltons moved the court for a mistrial, arguing that the argument impermissibly commented upon the exercise of their constitutional right not to testify.
A mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation...
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