Whitham v. State

• Decision Date: 09 May 1977
• Docket Number: No. 1--976A157,1--976A157
• Citation: 362 N.E.2d 486,173 Ind.App. 63
• Parties: Doug WHITHAM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 486

362 N.E.2d 486

173 Ind.App. 63

Doug WHITHAM, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--976A157.

Court of Appeals of Indiana, First District.

May 9, 1977.

Harry L. Zerbe, Lawrenceburg, Bobby Jay Small, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

The defendant-appellant, Doug Whitham, appeals his conviction of delivery of a controlled substance ¹, to-wit: cocaine, for which he received a determinate sentence of eight (8) years. Whitham raises the following two issues for our review:

(1) Whether the evidence adduced at trial is sufficient to overcome his entrapment defense?

(2) Whether the State of Indiana is barred from invoking judicial process to obtain a conviction in this cause?

The evidence most favorable to the State reveals that the Ripley County Commissioners contracted with an Ohio corporation, Narcotics Enforcement Team Inc. (N.E.T.), for the services of two agents to conduct an undercover narcotics investigation in Ripley County. On March 28, 1975, Michael Long and Steven Welker, employees of N.E.T., were assigned to conduct the narcotics investigation in Ripley County. Subsequently, Long and Welker moved to Ripley County and obtained an apartment in Osgood, Indiana.

During the course of their undercover investigation, Long and Welker met Doug Whitham on March 30, 1975, in Versailles, Indiana. A week or two after this initial meeting, Whitham and four other individuals moved in with Long and Welker. Long and Welker testified that while Whitham was living with them they saw him sell and deliver various types of drugs to different people on more than one occasion. On April 16, 1975, Whitham offered to sell Long some cocaine for ten (10) dollars. Long agreed to purchase a packet of cocaine from Whitham and consummated the 'buy' by giving him the money.

Subsequently, Long filed a probable cause affidavit setting forth the facts concerning the delivery of the controlled substance. The trial court determined that probable cause existed and issued an arrest warrant for Whitham on June 13, 1975. Whitham was arrested, tried by jury, and convicted on this offense.

Whitham initially argues that the trial court erred in overruling his motion for a directed verdict made at the close of all the evidence. He specifically contends that the evidence was insufficient to overcome the defense of entrapment since there was no showing that the State had probable cause to suspect that Whitham was engaged in any illegal conduct prior to setting the trap.

At the time Whitham was tried and convicted, the rule governing the issue of entrapment required the State to prove that enforcement officials had probable cause to suspect that the accused was engaged in illegal conduct and was already predisposed to commit the crime. Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641; Smith v. State (1972), 258 Ind. 415, 281 N.E.2d 803.

The requirement that the State prove probable cause to suspect when entrapment is an issue was operative, although highly criticized and contrary to the federal rule, until very recently when our Supreme Court re-examined the rule in Hardin v. State (1976), Ind., 358 N.E.2d 134. In Hardin, our Supreme Court overruled the probable cause to suspect requirement established in Walker v. State, supra.

While Hardin does not specifically state that it is to be retroactive in its application, this Court in Davila v. State (1977), Ind.App., 360 N.E.2d 283, has interpreted it to be retroactive. Thus, Whitham's contention, that the trial prosecutor failed to prove beyond a reasonable doubt that probable cause to suspect existed, is without merit.

Whitham further challenges the sufficiency of the evidence to overcome the defense of entrapment on the grounds that the State failed to prove that he had sufficient propensity to commit the alleged crime absent governmental involvement.

The question of whether the accused had sufficient propensity or predisposition to commit the crime is one of fact for the jury to decide. Hauk v. State (1974), Ind.App., 312 N.E.2d 92. In the case before us, Long and Walker witnessed Whitham selling drugs to various people on a number of occasions. Futhermore, Whitham approached Long and Welker at various times prior to April 16, 1975, and asked them to purchase drugs. In addition, Whitham was the instigator of the crime in question. This evidence would clearly establish that Whitham had a sufficient propensity and predisposition to commit the crime. Therefore, the jury's findings that Whitham had the necessary predisposition and that he was not the victim of entrapment are supported by sufficient evidence.

Whitham finally alleges that this Court must discharge him because 'the conduct of the government's agents was so felonious and outrageous that due process principles and principles of supervisory power over such conduct by the judiciary bars the State from invoking the judicial process to obtain a conviction.'

The argument advanced here raises the question of how an entrapment defense should be viewed. Two different approaches have evolved. These two approaches are succinctly defined and analyzed by Justice Stewart in his dissenting opinion in United States v. Russell (1973), 411 U.S. 423 at 440--441, 93 S.Ct. 1637 at 1647, 36 L.Ed.2d 366 at 378--379:

'In Sorrells v. United States, supra, and Sherman v. United States, supra, the Court took what might be called a 'subjective' approach to the defense of entrapment. In...