Townsend v. State

• Decision Date: 13 April 1981
• Docket Number: No. 2-479A110,2-479A110
• Citation: 418 N.E.2d 554
• Parties: Leon TOWNSEND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 554

418 N.E.2d 554

Leon TOWNSEND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-479A110.

Court of Appeals of Indiana, Second District.

April 13, 1981.

Robert Leirer Justice, Logansport, for appellant.

Theodore L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Following trial by jury, Townsend was convicted of delivering a Schedule II controlled substance and conspiracy to commit a felony. I.C. 35-24.1-4.1-2 (Burns Code Ed.1975); I.C. 35-1-111-1 (Burns Code Ed.1975). ¹ The following issues are presented for review:

1) Whether the trial court erred in ruling that the state may unilaterally raise and rebut the entrapment defense in its case-in-chief;

2) Whether the trial court committed error in instructing the jury that multiple sentences would be served concurrently 3) Whether testimony admitted by the trial court was obtained in violation of Townsend's right to counsel and his right to not incriminate himself;

4) Whether the trial court erred in excluding evidence of possible official hostility towards Townsend; and

5) Whether the trial court erred in prohibiting Townsend from presenting his defense of police misconduct shocking to the community conscience.

The relevant facts are as follows: Townsend was the proprietor of an establishment in West Lafayette known as Brianhouse. Between August of 1976 and February of 1977 Brianhouse was officially visited three times by the West Lafayette police. As a result of the visits, Townsend was charged with possession of alcoholic beverages for a commercial purpose, maintaining a common nuisance, and furnishing alcoholic beverages to a minor. These charges were pending when the events leading to the convictions on review here took place.

Around January of 1977, the Region III Metropolitan Enforcement Group (MEG) began an investigation into drug activities in Tippecanoe County. On three occasions Townsend was acquitted of the charges emanating from two of those meetings. The encounter which resulted in the conviction before us occurred at a pizza parlor on March 17, 1977, when Townsend delivered the Schedule II controlled substance to an undercover agent.

I.

Prior to trial Townsend formally stated that he would not rely on the defense of entrapment. This election ² was prompted by a desire on his part to keep from the jury prejudicial evidence of predisposition apparently involving prior drug incidents.

Townsend argues that the trial court required him to make an election between asserting an entrapment defense and thereby subjecting himself to the prejudicial effect of otherwise inadmissible evidence of prior unrelated criminal acts or foregoing the defense in order to keep such predisposition evidence from the jury. In this regard he points to a pretrial order which acknowledged existing law requiring the State to rebut an entrapment defense by evidence of predisposition. To the extent that Townsend argues such acknowledgment forced him to make an unfair election, he is in error. The pretrial order did nothing more than advise Townsend of the law of Indiana. Townsend's argument in this respect is very simply a quarrel with the possible adverse effects of a correct application of the law regarding the defense of entrapment.

Townsend's argument, however, contains another aspect. He asserts that the unfair coercive effect was occasioned by the prospect of the State itself unilaterally raising the entrapment issue in its case-in-chief and then immediately proceeding to rebut the "defense" by the introduction of the prejudicial evidence of prior unrelated criminal acts. He complains that control of his defenses must lie with him and that he should have been permitted to hear the State's case-in-chief before injecting entrapment as an issue.

Our Supreme Court has not directly addressed this issue. The State points to Gray v. State (1967) 249 Ind. 629, 231 N.E.2d 793:

"Where the evidence shows, as in this case, that there was a plan devised by law enforcement officers to reveal a violation of the criminal law and such law enforcement officers participate actively in the transaction which is declared to be illegal, without further proof the evidence shows merely that it was the scheme, the idea, and the plan which originated with law enforcement officers. There must be in such instances evidence which will rebut that the illegal transaction was induced solely by the plan of the law enforcement officers, since the burden of proof is on the State and does not shift to the defendant. The evidence must show that the illegal transaction was actually that of the appellant and not that of the law enforcement officials or informer who was acting at the instigation of the law enforcement officials." 231 N.E.2d at 796.

Although Gray could be read to arguably support the State's position, an examination of the case shows that the Court's primary concern was whether entrapment had been rebutted. That concern necessarily presupposes that the defense had been raised. How it was raised, or by whom, was not at issue.

Most Indiana cases are similarly unspecific. In Hardin v. State (1976) 265 Ind. 635, 358 N.E.2d 134, our Supreme Court adopted the majority position of Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and foreshadowed the present provision of the new criminal code: ³

"When the question of entrapment is raised, the court must make a two-part inquiry: (1) Did police officers or their informants initiate and actively participate in the criminal activity; and (2) is there evidence that the accused was predisposed to commit the crime so that the proscribed activity was not solely the idea of the police officials? If the evidence shows police activity absent any showing of predisposition on the part of the accused, entrapment as a matter of law has been established." 358 N.E.2d at 136 (citation omitted).

This language recites the court's duty when entrapment is raised, but does not directly address the question of by whom it may be raised. See also Stayton v. State (1st Dist.1980) Ind.App., 400 N.E.2d 784, 786, 787; Maynard v. State (3d Dist.1977) Ind.App., 367 N.E.2d 5, 7. The most recent Supreme Court decision, Williams v. State (1980) Ind., 412 N.E.2d 1211, is also inconclusive. Although it first appears the court recognized that the State can unilaterally raise an entrapment issue, id. at 1214-15 (entrapment defense raised by the testimony of the undercover officer), a search of the record reveals that an entrapment instruction was given by the Court without objection. (Williams record at 64, final instruction 12.) While it is uncertain if the defendant requested the instruction, the clearly permissible inference supports that position. Alternatively, failure to object to the instruction waived any issue as to entrapment being raised during the trial. In either event, the Williams Court did not confront the issue before us.

A recent case from our Court deals directly with this point. In Silva v. State (1st Dist.1980) Ind.App., 410 N.E.2d 1342 (transfer pending), the Court addressed the propriety of an instruction concerning the burden of proof when entrapment is raised as an issue. At the conclusion of its analysis, the Court stated:

"In summary, we are of the opinion that the authorities discussed above disclose, relative to the burden of proof in entrapment cases, that the defense of entrapment is inserted into a case, and a prima facie defense of entrapment is made, when probative evidence is presented either by the State or the defendant, whether formally pleaded or not, that a government officer or his agent has solicitated (sic) or has participated in the commission of the charged offense. The only burden of proof on the defendant is to adduce or bring forth some probative evidence of the officer's solicitation or participation if the State has not already done so." 410 N.E.2d 1347.

It is interesting that each of the cases relied upon by the First District for this conclusion follow the pattern of merely stating that when entrapment is an issue the State must then rebut the element of police inducement. Gray v. State, supra, 231 N.E.2d 793; Davila v. State (3d Dist.1977) Ind.App., 360 N.E.2d 283, 286; Medvid v. State (3d Dist.1977) Ind.App., 359 N.E.2d 274, 275. The problem before the Court was whether the State had carried its burden of proof, not how that burden was first imposed.

In contrast to Silva, at least implicitly, are Hardin v. State, supra, 358 N.E.2d 134, and Harrington v. State (2d Dist.1980) Ind.App., 413 N.E.2d 622. As previously noted, Hardin did not directly deal with the issue but did favorably note the comments to the then proposed I.C. 35-41-3-9. Those comments contemplate that the burden to raise the entrapment defense lies with the defendant.

"Under this section the defendant will raise the issue of entrapment through some evidence showing his conduct was induced by a public officer or employee and that inducement was of such nature that normal law-abiding citizens would have been persuaded to commit the offense. The burden is then upon the state to demonstrate beyond a reasonable doubt that the defendant was predisposed to commit the offense." Criminal Law Study Commission Comments, I.C. 35-41-3-9 (West 1978) (emphasis supplied); see Hardin v. State, supra, 358 N.E.2d at 136.

In Harrington the Court considered the propriety of an instruction based upon this Comment which required the defendant to present evidence " 'that he was persuaded or induced by a public officer or employee to sell drugs and that such inducement was of such nature that normal law-abiding citizens would have been persuaded' " in order to raise the defense of entrapment. 413 N.E.2d at 624. Although we rejected that portion of the instruction relating to the degree in which police inducement must be established, we clearly embraced the...