Fassoth v. State

bar, the case at the trial thoroughly taking justified judicial no-

tice proceedings which had in fact court,

occurred in his by a more

extravagant judicial use of time would led

have to the same result. There is no

question that the would not have judicial

erred had he refused to take notice required rehearing a full nor was he grant

bound to solely new trial on the testimony.

issue of recanted Downs v. Ind., 482 N.E.2d 716. How-

ever, practical handling situation judicial

was an economical use time and expense

saved needless time and to both litigation.

sides of the Appeals

The Court of was correct af-

firming the trial court.

SHEPARD, C.J., and PIVARNIK and

DICKSON, JJ., concur.

DeBRULER, J., concurs in result separate opinion.

without FASSOTH, Watson,

Monica Dennis

Watson, Appellants, Indiana, Appellee.

STATE

No. 64S00-8612-CR-1068.

Supreme Court Indiana.

July DiNatale,

Joseph Park, N. Oak for Moni- ca Fassoth Watson. III, O’Brien, Charles R. Deets Thomas J. Sandy Heide Kennedy, Lafayette, Deets & for Dennis Watson. Pearson,

Linley Gen., E. Atty. Joseph N. Stevenson, Worden, Michael Gene Deputy Gen., Attys. Indianapolis, for State. GIVAN, Justice.

juryA appellants’ trial resulted in convic- as tions follows: Monica Fassoth was Dealing convicted of Cocaine, A felony, a Class for which she (20) twenty received a sentence of years. Roy Watson was convicted of Delivery of Cocaine, a Class A felony, for he which (40) forty years, received sentence of Possession of Cocaine with the Intent to Deliver, a A felony, Class for which he (40) received a sentence of forty years, and Possession Marijuana with the Intent to Deliver, felony, a Class C which he eight received a years, sentence run concurrently. sentences to Dennis Watson was convicted of Aiding Delivery Cocaine, in the A Class felo- ny, for which he received a sentence of twenty (20) years. 1985, facts are: In October of Offi- Krawczyk employed

cer Mike was as an corroborating Krawczyk’s County addition investigator Porter Narcot- for the sales, testimony about the Fassoth William Fassoth on He called ics Unit. obtaining description trans- inquire gave detailed about the 1985 to October Krawczyk that he action occurred on November drugs. told Fassoth source, $1,000 to his whom he he receive have to talk 1985 for which was to would occasions, to “Roy” called on several later efforts. availability cost determine date, appellant Roy On Watson told meet Later, they arranged to in a drugs. Krawczyk Fassoth to meet William parking lot to consummate White Castle money find he out whether had before

the transaction. meeting, brought “the stuff.” At their Fassoth, he Krawczyk met $6,800 When produced re- Krawczyk and Fassoth tape re- wearing a hidden transmitter appellant Roy Watson’s home turned corder, at the O’Kelly, also Officer money. then announced with Watson Castle, equipped a receiv- White plans previously made conduct that the to hear the ing unit which allowed her changed. drug sale were to be Watson Fassoth and conversation between four gave Fassoth ounces of cocaine which suggestion, Krawczyk. Upon Fassoth’s It that Krawczyk. he delivered to was at Smokey to Joe’s they drove two cars his time Fassoth and wife were William Portage, lot in Indiana. parking Restaurant arrested, they police. to and decided aid Krawczyk and Fassoth gave Fassoth $580 to spoke Roy Fassoth then Wat- William return in a him to there for his told wait meet phone son on and was directed to few minutes. sister, Fassoth, County at the his Monica Krawczyk got Upon return Fassoth’s sister, his he met Market. When Fassoth gave car. Fassoth into Fassoth’s re- wearing a hidden transmitter and was Krawczyk plastic bag pow- of white a clear to cording They device. drove Watson’s good him a deal on an der and offered Roy Dennis apartment, mother’s and and of cocaine. ounce waiting park- them Watson were for 1985, Fassoth delivered ing They apartment, On October all lot. entered Krawczyk ate, cocaine for Holiday ounce of to for Inn. Out- one and exited $2,160. Krawczyk pur- paid building, he was apartment Dennis Wat- side the $1,800 of from Fas- worth cocaine chased son Fassoth to careful”. told William “[b]e Angela on October time, and his wife soth Sam- At Fassoth noticed blue that possibility of they and discussed the 1985 Cad- the back seat of the sonite suitcase large quantity of cocaine. purchasing driving. his sister was Inside illac which room, Fas- they decided that William hotel 11, 1985, Fassoth sold November On money to obtain one-half soth was quarter-pound of cocaine for Krawczyk one him of Krawczyk give then one-half from transaction, police $6,800. ar- this After the cocaine. time, At this and his wife. rested Fassoth agreed cooperate to and his wife Fassoth met and Monica Fassoth then William arrest police in their effort to with County parking in the Market Krawczyk source, Roy Fassoth appellant Watson. Krawczyk that he was told lot. William listening hidden device agreed to wear ne- $26,000, or one-half of the amount pay of for the sale and continue the transaction give him one-half gotiated, Monica would $52,000 of cocaine. worth cocaine, ne- they would further of performing the balance gotiate as to immunity and testi- received use Fassoth talking William was When their contract. November of during October and fied that his drove Krawczyk, Dennis Watson with Fassoth, sister, appellant his Monica and scanned the alongside the Cadillac car He living Watson. appellant Roy was police arrested point, At parking lot. that cocaine each supplier of stated Dennis Watson Fassoth and Monica ap- Krawczyk was drug deals with of his Angela arresting William simulated Watson, the mon- Roy who received pellant contained suitcase The Samsonite Fassoth. for the ey sales. grams percent pow- case, of 88.6 cocaine 498.2 Fassoth re plea bargain ceived no in exchange der. for his testimony. jury heard evidence that Roy Watson was arrested the hotel police when Fassoth was arrested told him spoons, clips, Cocaine room. roach a co- although they could not make diluting agent, parapherna- caine and other promises, they would make a recommenda in a lia were found leather case located in prosecutor tion to the if Fassoth would the hotel room. finish the sale. Fassoth stated he warrant, Pursuant police to a search testifying pursuant to a court order searched the appellants residence of Moni- under grant immunity. use Also he Roy ca They Fassoth and Watson. found a spoke testified that he police twice triple scale, beam marijuana. cocaine and plea bargain wife, offered to his expected when what get asked he Monica Fassoth and Wat- testimony, he did said not know. argue they son deprived were of a fair apprised find that the improper fully trial due to the restriction of their surrounding circumstances Fas- cross-examination William Fassoth. The testimony. soth’s The court did not err in argument basis their They is twofold. disallowing questioning regarding a non- unduly ques- contend limited in plea agreement. Hatchett v. existent tioning plea negotiations Fassoth about or 503 N.E.2d 398. potential sentences offenses which Fas- soth and charged, his wife had been During cross-examination, appellants erroneously prohibited that the trial court asked Fassoth whether he was convicted of them from questioning Fassoth about his 1974, a objected. crime in the State past criminal conduct. Away the jury, from the trial court stated history Fassoth’s criminal included his trial, Prior to the granted the goods $100, of convictions theft of under State’s motion precluded in limine which fleeing police, gun the carrying a without a appellants inquiring from about evidence of permit, possession of property, stolen specifics of offers or counteroffers arising all out of one arrest in 1974. De- concerning plea agreements. However, the termining that all offenses were misde- preclude court stated it would not cross-ex- except possession meanors for stolen of plea negotiations amination about whether property, the trial court sustained the had occurred or about witness’s motiva- prior objection State’s to all offenses ex- Appellants testifying. tion for assert that cept possession property of stolen con- right the limitation of the to cross-examine resumed, viction. When cross-examination William Fassoth violated their Sixth appellants asked Fassoth whether he was right of Amendment confrontation. possession convicted of of property, stolen said, “yes”. Appellants believe that judge trial has discretion to de The their rights Sixth Amendment were violat- scope cross-examination, termine the of ed partially when the trial court sustained only clear of a abuse that discretion war objection. the State’s reversal. Carter v. State (1987), rants Ind., 505 N.E.2d 798. A be witness cross-examined impeachment purposes prior Jarrett v. State held in criminal conviction of infamous crimes or (Givan Pivamik, JJ., 498 N.E.2d 967 Brown v. State crimes dishonesty. of dissenting) significant harm results Ind., (1984), 376; Ashton v. 459 N.E.2d jury prevented when the learning is (1972), Anderson 258 Ind. 279 N.E.2d by the extent of benefit received witnesses 210. accept plea bargain exchange who in testimony, their exposure and the of a wit- Theft is available for use im in testifying impor- ness’s motivation is an peachment as involving a crime dishonesty function constitutionally pro- tant or false statement. Hunt v. State right Ind., However, tected of cross-examination. N.E.2d only 307. acquitted. denial of cross-examination on an area Also were instructed that total credibility requires concerning a witness’s will law that a defendant must be acquitted guilt amount to a constitutional denial of the unless his is determined be- Any yond Considering right to cross-examination. less than reasonable doubt. whole, ap- a total denial of cross-examination is instructions as the content of pellants’ allegation by discretion of error viewed as within the was covered regulate scope given jury. the instructions court to cross-exami- (1979), 271 Ind. nation. Rinard v. State Appellants complain also the in- 394 N.E.2d struction failed to state that the defendant must have exclusive control the area case, jury did not where contraband was located. hear evidence of the lesser offenses above However, they set out. did hear evidence possession Constructive is the in testimony, that at the time of his Fassoth capability tent and to maintain dominion charged dealing three counts of illegal drugs. over the and control Proof counties, in two had received use cocaine possessory premises interest in the of a immunity, by and had been ordered illegal drugs are found is ade which the testify. They explicit heard evi quate capability to maintain show participation dence of his several possession control over them. When possession sales and of his conviction of exclusive, premises is not the inference of property. stolen We find the limitation of supported by intent must be additional cir cross-examination was within the trial pointing cumstances to an accused’s knowl court’s discretion. edge of the nature of the controlled sub presence. Davenport their stances and Roy Monica Fassoth and (1984), Ind., 464 N.E.2d 1302. in Watson contend that the trial court’s possession con struction on constructive his sis Fassoth stated that before an statement of the tained inaccurate law. picked up ter’s arrest she him in a blue Cadillac, The was instructed as follows: the same car he had seen past. in the Watson and her drive blue pos- theory “Under the of constructive containing suitcase the cocaine Samsonite session, only the evidence need establish was in the back seat of the Cadillac. Con knowledge pres- of the defendant’s the facts, sidering ap these we conclude that the ence of the item and defendant’s pellants had exclusive control over the ability to control the item. This knowl- Therefore, drugs. they preju incurred no edge can be inferred from the fact that in exclusion of the word “exclu dice the place item was found in a under the from the instruction on constructive sive” Tay- defendant’s dominion and control. possession. State, [_] lor v. [_], 482 N.E.2d Ind. State, 175 Ind. (1985). Martin v. Appellants Monica Fassoth and (1978).” App. 372 N.E.2d. 1194 argue Roy Watson that error occurred played tape the trial court record Appellants assert that the instruction when ing between Monica and that a defendant must know of a conversation failed state contraband, Fassoth. The conversation oc an item is and the State must William microphone wore a prove possession beyond a rea- curred when William constructive recording person in and device on his while sonable doubt. the car with Monica. review, Upon this Court is bound to con- (1972), v. Lamar State Appellants cite Roland as a whole. sider the instructions 282 N.E.2d 795 which this v. State 501 N.E.2d 1034. 258 Ind. case, Lamar’s conviction appellants’ jury the was instructed Court reversed tape granted him a new trial because possession property if of constitutes that suffi- recording played at trial was not of any part they conduct and prohibited of the The record- clarity intelligibility. was unaware of cient believe that a defendant interrogation ing made in an room possession property, his he should be of the poor only was of that quality portions eliminating transcripts such order of tape the of it could replaying be understood after it from the evidence. reading typewrit- numerous times while review, Upon we consider transcript. ten concluded that the de- alleged improper whether the remarks dur velopment recording equipment of sound ing argument designed final are to arouse point had advanced to that no the interro- passions put jury of the or the defend gation be adequate room should without position peril. ant in a grave of equipment Brumfield misuse and its was inexcusable. (1982),Ind., v. State 442 N.E.2d 973. It is Appellants’ distinguishable case is proper argue for counsel to both law and tape played appel Lamar. The at during argument. facts final Counsel lants’ trial did contain sounds of static and propound any upon conclusions based However, portion played interference. or her analysis of the evidence. Cheney sufficiently audible to un (1985),Ind., 486 N.E.2d 508. We find derstand were in they the midst of a prosecutor’s that the comments were with drug Further, quali sale. the standard of proper argument. of final ambit

ty expected recording interroga of a in an tion room cannot used to be a record Appellants Monica Fassoth and ing person wearing of “bug.” Because argue Watson their sentences are clothing microphone worn over they dispro unconstitutional because are moving Fassoth’s portionate and out of the they the crimes which car, convicted, interference and static on tape they are cruel and unusual were inevitable. punishment Eighth violation Amendment. Also assert that Ind. Also, the tape-re content Code 35-50-2-2 is unconstitutional be § corded merely conversation was cumulative prohibits cause it the trial court from con of William testimony Fassoth’s about the sidering personal backgrounds their in sen Therefore, transaction. we find no tencing suspending or their sentences. reversible error. v. State Watkins penalty for the commission of a Ind., 460 N.E.2d 514. Class A felony is a fixed term of thirty argue also that reversible er- years twenty (20) with not than years more prosecutor ror occurred when made aggravating circumstances, added for nor certain references to the content of the (10) years more than ten subtracted for taped during argument. conversation final mitigating circumstances. Ind.Code Previous to the commencement of final ar- 35-50-2-4. § gument, objection the court an sustained 35-50-2-2, Under Ind.Code admission transcript § into evidence of a only may suspend part tape-recorded conversation. The in sentence excess of the minimum sen- only portion court ordered that a of the (20 years) dealing tence for in tape cocaine or a played would for the jury, be and no narcotic A felony. as a transcript given Class would to be them. During argument, prosecutor Monica Fassoth received the final the minimum (20) twenty years sentence of for reviewing appel- dealing the which led in facts Roy cocaine. 40-year lants’ stated Watson received a arrests. He that he would paraphrase testimony dealing sentence for in cocaine the of a due to the witness as could, apologized finding prior best he court’s that his and he criminal history and the then amount cocaine sold misstatements. He reiterated his in- aggravating terpretation factors. These of the conversation sen- between compliance tences are in William Fassoth. with the statutes. and Monica situation, prosecu- now assert that the In a similar factual we held reading prepared notes, tor was his presented from or that no issue is constitutional transcript, during description his when a defendant fails to receive considera- events, probation regarding thus he violated the trial court’s tion of pro- a sentence Stroud v. legislature. Appellant Dennis by Watson contends vided Ind., (1988), 517 N.E.2d 780. State court the trial committed reversible error by refusing his tendered instruction on cir Stroud Further, found we evidence. His cumstantial tendered in dealing year sentence for twenty stated that when a case rests struction on cocaine, felony, A is not unconstitu- Class evidence, excessive, tional, manifestly unreason- circumstantial circumstances or Roy point increased sentence unerringly guilt able. Watson’s must supported by aggravating circum- every accused as to exclude hy reasonable Ind.Code compliance stances pothesis of innocence. appel- find error in 35-38-1-7. We no § The was instructed on the defini- sentencing. lants’ tions of direct and circumstantial evidence argues that Appellant Dennis Watson if were told the circumstances are sus- reversible error the trial court committed inferences, ceptible to two reasonable separate trial. by denying motion for innocent, find if must the accused even prejudiced by the he was He asserts that guilt equally impressive. inference of is testimony about admission of voluminous Appellant’s tendered instruction was drug transactions which was large-scale properly refused because its substance was him, prejudicial and the not connected by covered other instructions denied him a fair trial. which were circumstances given. Roland, supra. We find no error grant deny or The decision to in the refusal of instruction. separate trials is within the motion for trial court. That determi discretion of the Appellant Dennis Watson claims the trial only for an abuse of nation is reviewable erroneously his motion for denied only will look at what actu discretion. We directed verdict and the evidence is insuffi- Dudley v. State ally happened at trial. cient to sustain his conviction. review- Ind., 881; Walker v. 480 N.E.2d evidence, ing sufficiency this Court (1983), Ind., 444 N.E.2d 842. State reweigh (cid:127)will not or evidence v. State credibility of the witnesses. White A defendant is not entitled to a N.E.2d 725. separate right merely trial as a matter of damaging the actions because evidence of Appellant asserts that no evidence was of a codefendant reflects on him. There is presented which indicated that he was right protected no constitutional to be consented to the cocaine aware of and damaging evidence. The trial court does transaction, presence and his mere at the by refusing to or not abuse its discretion of the crime is not sufficient evidence scene separate der the basis that a de trials on support his conviction. may guilty by association fendant be found presents clearly-defined where the evidence Upon review cases which each defendant and and distinctive roles for circumstantial, evidence is it is not neces may there is no confusion over who have sary every hypothesis reasonable may have spoken certain words or done only that innocence has been overcome but Id. at certain acts. supports jury ver an inference which evidence established reasonably drawn. Freed v. dict be drug supplier, and Monica Watson was (1985),Ind., 480 N.E.2d 929. We find intermediary were the and William Fassoth appellant’s evidence of involvement delivery people buyers. sufficient to sustain his con sale find that each role was viction. clearly by the evidence and the defined is affirmed. The trial court appellant could determine Dennis Watson’s guilt apart his association with his PIVARNIK, J., SHEPARD, C.J., and accomplices. of discre- We find no abuse concur. tion.

DeBRULER, J., concurring and dissenting separate opinion. RUTLEDGE, Appellant, R. James DICKSON, J., concurs in result Indiana, Appellee. STATE of separate opinion. without No. 26S00-8706-CR-624. DeBRULER, Justice, concurring and dis- Supreme Court of Indiana. senting. respectfully judgment I dissent to the July wherein it Court affirms the conviction appellant Dennis Watson. The evidence knowingly aided the offense of dealing is: cocaine

(1) present He was at his mother’s house

when the informant and his brother

were there.

(2) Upon leaving the house he said either

“I think if you its best leave the

women behind” or “I think its best if

we leave women behind.”

(3) He said “Be careful.” pulled Dennis Watson into the restau- parking

rant lot next to the car in girlfriend his brother’s and the

informant, brother, her sitting talking

and started to them.

(5) Several officers later testified have seen Dennis’ car the lot

earlier. theory prosecution was that behaving

Dennis Watson was like a lookout view, excep- the dealers. this is

tionally sparse aiding evidence

transaction. No matter far how it is

stretched, it fails to have that substantial

probative support character which can guilt beyond

conclusion of a reasonable I

doubt. would reverse that conviction.

Case Details

Case Name: Fassoth v. State

Court Name: Indiana Supreme Court

Date Published: Jul 7, 1988

Citation: 525 N.E.2d 318

Docket Number: 64S00-8612-CR-1068

Court Abbreviation: Ind.