Walker v. State

• Decision Date: 08 October 1970
• Docket Number: No. 968S149,968S149
• Citation: 262 N.E.2d 641,23 Ind.Dec. 104,255 Ind. 65
• Parties: Arthur Edward WALKER, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 641

262 N.E.2d 641

255 Ind. 65

Arthur Edward WALKER, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 968S149.

Supreme Court of Indiana.

Oct. 8, 1970.

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged with violation of the 1935 Narcotics Act, as amended, as found in Burns' Ind.Stat., 1969 Supplement, § 10--3519 et seq. He was charged in Count 1 of the affidavit with the unlawful sale of marijuana and in Count 2 with the unlawful possession of marijuana. Cause was submitted to the court without a jury resulting in a finding of guilty on both counts. Appellant was sentenced to the Indiana State Prison for a term of five to twenty years on Count 1 and two to ten years on Count 2.

The evidence in the case is as follows:

Indiana State Police Detectives aided by an inmate of the Indiana State Farm commenced an investigation into the drug traffic in Evansville, Indiana. Their activities in their investigation consisted of infiltrating into appellant's circle of acquaintances, posing as gamblers from Indianapolis and letting it be known that they were in a position to purchase drugs in Evansville. During this stage of investigation there were several occasions when appellant asked the detectives if they wanted to purchase some marijuana. On one of these occasions one of the detectives gave the appellant $10, whereupon the appellant asked two women who were present to step outside. When the women returned they gave the detectives a packet which was later determined to contain marijuana.

On another occasion the appellant again asked the detectives if they wanted to buy some marijuana, at whch time they gave the appellant a $5 bill, whereupon the appellant instructed them to meet him later that evening in a local tavern. At the appointed time the appellant gave the officers two packets which contained what was subsequently identified as marijuana.

Appellant's major defense throughout the trial was his claim of entrapment. A number of questions are presented to this Court concerning the admissibility of evidence in view of the defense of entrapment. We will deal with these questions in the order in which they are raised in appellant's brief.

Appellant first claims error in that the court refused to allow the defendant to cross-examine Detective Wolfe concerning his activities with regard to the women who were involved in the police investigation in this case. Upon objection by the State to this line of questioning, the attorney for appellant stated that he was attempting to show a pattern of entrapment. The specific question asked on cross-examination was, 'Did you take any, on any occasions take any of the negro girls you became acquainted with to your rooms?'. This Court has previously held that a trial court has a wide latitude in the exercise of its discretion as to what will or will not be determined on cross-examination. Kelley v. State (1948), 226 Ind. 148, 78 N.E.2d 547. In the Kelley case the Court observed that where the evidence sought on cross-examination would be of no value to the appellant's case, there is no error or abuse of discretion in excluding the evidence. In the case at bar we fail to see how any evidence as to the relationship between the police officers and their informants could have aided the appellant either in his defense in chief or in his contention of entrapment. The activities of the officers in gaining their information is immaterial on the question of entrapment, the material question being whether the alleged criminal conduct on the part of the appellant was of his own doing or was 'the product of the creative activity' of the law enforcement officials. Sherman v. United States (1958), 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. We, therefore, hold that the trial court did not abuse his discretion in refusing to allow the appellant to continue the line of questioning as above set out.

When the court sustained the State's objection to the above question, the appellant then made an offer to prove, wherein he stated his version of the detectives' activities concerning the women in question. The prosecution then made a motion to strike the offer to prove on the ground that it was improper on cross-examination, which motion to strike was sustained by the court. It is the law in Indiana that an offer to prove should not be made by the party cross-examining a witness, the theory being that the party cannot be presumed to know what the witness' testimony will be. 2 Wiltrout Ind.Civ.Proc. § 1994. We, therefore, hold that the trial court's ruling was correct in sustaining the motion to strike the offer to prove.

Appellant next claims error in that the trial court admitted State's Exhibits 1 and 2, which were envelopes containing marijuana into evidence. His objection was that this evidence was obtained by entrapment and therefore inadmissible. As above stated, we must examine the evidence in this case to determine whether this was entrapment under Sherman, supra, or whether even though the action of the defendant was induced by law enforcement officers, the defendant was otherwise predisposed to commit the offences charged. See Waker v. United States (1 Cir., 1965), 344 F.2d 795.

In the case at bar there is evidence from which the trial court was justified in finding that the appellant was regularly engaged in the traffic of selling marijuana; that all the police officers did in this case was to infiltrate the circle of appellant's acquaintances and in so doing gain the confidence of the appellant to the extent that he felt free to offer to sell them marijuana. We see no overt acts on the part of the police officers to lure the appellant into a position of violating the law. As was stated in Sherman, supra, 'To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.' Under the above authorities we hold there was ample evidence in this case upon which the trial court could find that the appellant had the propensity and the desire to engage in his criminal activity, and that the police officers merely afforded him the opportunity to offer the sale of marijuana to them. We, therefore, hold the trial court did not err in admitting evidence obtained by the police officers in the conduct of their investigation.

Appellant next complains that he was denied the opportunity to confront the witnesses against him in violation of Article 1, Section 13, of the Constitution of Indiana and the Sixth Amendment to the Constitution of the United States. His contention is that one Ernest Ray Powell, who had been an inmate of the Indiana State Farm, had aided the police officers in accomplishing their infiltration into appellant's circle of acquaintances in Evansville, and that Powell was not now available as a witness in the court. The evidence discloses that the police officers obtained the release of Powell from the State Farm where he was serving a sentence for third degree burglary, and after using him to aid them in their infiltration gave him $500. He then purchased a ticket to Los Angeles, California, where as far as the officers knew he was residing at the time of the trial.

We see nothing in this record to indicate that the appellant ever requested the presence of Powell as a witness nor is there any contention by the appellant that Powell had any information which would be beneficial to him.

In a recent case decided by this Court this same Witness Powell was subpoenaed by the appellant and was ordered by the Court to appear, but did not appear. This Court reversed that case on the ground that appellant had the right to have Powell produced as a witness, if he so desired. See Dorsey v. State (1970), Ind., 260 N.E.2d 800, 22 Ind.Dec. 204.

We see no parallel between this case and the Dorsey case. The fact that the police officers obtained the services of Powell and paid him for the same is in no way improper. We fail to see any violation of the appellant's constitutional rights either in the use the police made of Powell or in the fact that he was not present to testify when no request had been made by the defendant for his presence.

The State was not required to call Powell simply because he was competent to testify. Washington v. United States (5th Cir. 1960), 275 F.2d 687.

The appellant next claims error in that the court failed to grant appellant's motion for continuance in order to obtain the presence of Powell to testify. This motion was first made after the testimony of the police officers concerning Powell's activities. It is clear from the record that Powell's participation in the investigation was known to the appellant from the time of the beginning of the case and there was ample opportunity for appellant to have subpoenaed Powell, if he desired his testimony at the trial. His request coming after the trial had commenced without any showing of any great need for the testimony of Powell, the trial court did not abuse his discretion in denying a continuance in order that Powell might be produced as a witness. Appellant did not show in the court below nor has he argued in this Court that Powell was in possession of any information that would have benefited him in any manner, nor does he claim that he did not know of or could not have obtained the testimony of Powell prior to going to trial. We, therefore, hold that the trial court did not err in refusing to grant appellant's motion for continuance.

The appellant next contends the trial court erred in accepting hearsay evidence to establish whether or not the investigating officers had probable cause to believe that the appellant was engaged in traffic in drugs. This evidence was admitted by the trial court on the theory that appellant had raised the defense of entrapment, and when the defense of entrapment was...