Payne v. State

juvenile reasonably disposition available to the court was calculated effect rehabilitation.

Accordingly, the entered in Cause 3-974A155 waivers No. are affirmed. entered the above waiver order and while

After the court yet pending, to correct errors was another Imel’s motion against alleging petition filed him acts which would degree burglary if the crime of first committed constitute again presented proceeding, this the court was adult. In charge prosecutive ample had merit. evidence hearing findings the court entered its At the conclusion charge charged prosecutive merit; had that the crime that the following pattern crime of involvement “is a serious crimes,” prospect there was no reasonable such through use of the rehabilitation resources available to juvenile court. allegations Essentially urged the same of error are 3-974A155. We find discussed No. our resolution those questions the outcome in those controls No. 3-1274A204 therein sustained. that the entered should be waiver Accordingly, waivers entered in Causes No. 3-974A155 are affirmed. and No. 3-1274A204 Hoffman, J.,

Staton, concur. P.J. and Reported 342 N.E.2d 897. Note. — Payne, Jr. of Indiana.

Walter Rehearing May 26, Filed March denied 1976. 3-674A98. [No. Transfer denied October 1976.] Roper, Chaplean, Roper, Mclnerny, John J. Minczeski & Farabaugh, Bend, appellant. of South for Sendak, Attorney

Theodore L. General, Douglas Meyer, W. Attorney Deputy General, appellee. for jury guilty P.J. A found Payne, Walter E. Jr. Staton, possessing marijuana of which was violation of IC Payne 16-6-8-3(c) (Burns Ed.). Code was fined $700.00 imprisonment (1) sentenced to a term for of not less than one year (10) years. ten nor more than His motion to correct appeal: these issues on errors raises (1) Payne’s the initial issue of the of Should voluntariness rights subsequent waiver of confession have been presence jury? in the decided Payne’s there cause to (2) Was criminal activity up plan buy marijuana when the set from him? marijuana Payne’s suppress evi-

(3) motion Was improperly ? dence overruled (4) custody to warrant established a sufficient chain Was evidence? into admission of testimony admitting oral (5) court err in Did trial Long Beach, regarding marijuana Indiana? in a vehicle seized it determined when that the trial court erred We conclude presence of the in the the initial of voluntariness court, majority this jury. not opinion It including opinion, of this this should author cause hearing on to the trial court for the issue remanded court, remand, trial If the makes an voluntariness. rights independent that the waiver of statement determination judg- subsequent voluntary, were then the and the confession affirmed, ment of must be since we find no reversible conviction If, remaining presented for our review. error issues however, the trial court on remand finds confession in- aside, voluntary, conviction must be set and a new granted. trial must be

I. Voluntariness of Confession Sergeant Abraham, testified that witness, first State’s rights signing Payne his a written informed of before had been willing rights that he was which indicated waiver of form asked Abraham what police. The then to the talk signed. Payne’s defense the waiver said after objected any testimony after about conversations counsel signed that neither the waiver the reason the waiver rights subsequent were shown to have any statements nor court treated the initial voluntarily The trial made. been jury and, question for the as question voluntariness of permitted jury, evidence to be heard.1 the presence the of in point asking at this be resolved I think it can “THE COURT: 1. happened, happened, happened, it what it where time what the witness responded, between questions, was the conversation who asked who evidence, At the of the conclusion which included voir Sergeant Abraham, dire the trial overruled the court objection. Abraham testified that confessed his owner ship marijuana in his found suitcase. (Burns Ed.)

IC 35-5-5-1 the trial Code mandates presence

court to hear evidence hear- out and ing jury of the to determine issue any volun- admitting tariness before evidence: confessions3 in any “In prosecution brought criminal state of Indiana, hereof, given. confession, as (5) defined in section [35-5-5-5] voluntarily shall admissible in evidence if such evidence, received the the Before confession judge shall, trial presence hearing out jury, any determine issue as to If the trial voluntariness. judge voluntarily made, determines that the confession was it shall be judge admitted in evidence and the trial shall permit jury to hear relevant evidence on the issue of give jury weight voluntariness and shall instruct the such jury confession as the feels it deserves under all the added). (emphasis circumstances.” action, determining The trial court’s voluntariness presence jury, of the constituted a 35-5-5-1, violation of section Payne’s as well as a violation of fifth and fourteenth amend- rights. ment Jackson Denno 378 U.S. 84 S.Ct. remaining question 908.4 The only L.Ed.2d is the disposition of the case in the face of this error. presume and the witness defendant. I we all know what time it was, was, where it what room it present, who was but amI jury impression getting. not sure what given “MR. ROPER: Also whether or not the statement was volun- tarily right “THE COURT: You have the to cross examine and also have right, you choose, put your if client on the stand. This is a jury.” for the Payne’s any 2. defense counsel asked Abraham if he had conversation Payne, prior signing waiver, regarding the fact Payne’s might cooperated. mother or wife be arrested unless he Abraham having any denied such conversations. “any guilt any confession is defined as A confession of criminal any self-incriminating given orally statement offense or made or inor writing.” (Burns Ed.). IC 35-5-5-5 Code might affirm 4. We conviction if we could determine that statutory both the error and the federal constitutional error were beyond a doubt the facts of harmless reasonable under this case. See

399 peti a filed petitioner Jackson Denno, supra, In Jackson v. asserting district court federal corpus in the habeas tion for it was invalid because was York conviction that his New properly determined to have been not founded on a confession practice a York when voluntary. with the New Consistent confession, a the voluntariness of question raised about was .5 jury The issue to the had submitted the the trial court Supreme that the New York Court concluded United States inadequate a reliable and clear-cut procedure to “insure was by “unbeclouded other issues of voluntariness determination” prejudicial 378 but evidence.” the effect of extraneous and 391, 923, The 390, 1788, at 12 L.Ed. at 84 at S.Ct. 924. U.S. a that entitled to Supreme determined Jackson was Court hearing evidentiary determine in the New York courts to full confession. The context of Jackson’s Court said: the factual automatically however, follow, that Jackson “It does not including complete retrial of the a new trial a entitled to (1967), 18, Chapman 824, 386 U.S. S.Ct. 87 17 L.Ed.2d California Harrington (1969), 705; 395 U.S. 23 89 S.Ct. California 284; (1969), 158; Greer v. State 252 Ind. L.Ed.2d Moreno v .State 245 N.E.2d App. 441, 675; Ind. 336 Moss v. App. 502, 338 N.E.2d Larimer v. State App. 673, Payne’s 326 N.E.2d 277. Aside from con- testimony fession, only Kaeding’s directly Payne’s informer established containing marijuana. testimony Kaeding’s possession of the suitcase only by supported the circumstantial evidence was that carried Kaeding’s confession, a house to car. suitcase from Without primarily credibility Payne’s of been conviction would have based on the Kaeding. testimony impeach was informer Other introduced reputation Kaeding community in and to establish his for moral light powerful say, probative impact probative impact turpitude. in of the cannot We guilt questionable and the confession confession, remaining that, “beyond absent evidence rea- a jury doubt, and an honest fair-minded would rendered have sonable a v. in solely remaining guilty based . . . evidence.” verdict Larimer say supra, Thus, any State, at we 326 N.E.2d 279. cannot error beyond the confession was harmless the introduction reasonable confession, against Payne the case was not over doubt. Without whelming. rule, judge required the trial was York to make Under New preliminary and to exclude a confession if under no determination voluntary. any However, it could be deemed circumstances jury. jury instructed it left if voluntariness found involuntary, disregard entirely; if, it towas it confession 'hand, voluntary, the confession it it found was to determine other on the reliability weight accordingly. and afford or Jackson v. its truth 374-75, Denno, at supra, 387 S.Ct. L.Ed.2d at 914. U.S. guilt position issue of or innocence. Jackson’s before Court, here, District and the issue of his confession convicting jury should not have been should apart agree but decided separate proceeding been in have determined body trying guilt from or far we innocence. So hearing and hold that he is now entitled to such a the state court. But if at the such eviden- conclusion of hearing tiary court on the it is issue, state coercion voluntarily given, determined that Jackson’s confession was evidence, properly admissible considered to be jury, necessity point the for been tried and was we see no at that constitutional already proceeding trial, with a new for Jackson has by placed jury a the it with confession before True, guilty. jury found the in the trial has been first permitted to deal the issue with of voluntariness and upon we do not know whether the conviction rested the confession; did, prejudice but if it is there no constitutional procedure from the York to Jackson is missible. New if the confession voluntary properly found be now and therefore ad- jury upon it, If the relied entitled to do so. court, course, evidentiary hearing, if the state at Of an the redetermines was cence without the confession’s facts and decides that Jackson’s confession involuntary, guilt there a must be trial on new or inno- being admitted in evidence.” 1790,12 at at (foot- 378 U.S. at L.Ed.2d 925-26 S.Ct. omitted). note further Court stated: practical “It is both and desirable that in cases to tried be proper a hereafter determination of voluntariness be made prior the to the admission of jury confession to the which guilt adjudicating is or innocence. Jackson, But toas who already been has convicted relief, now seeks collateral say we cannot that the requires Constitution a new trial soundly if in a conducted proceeding, collateral the con- was admitted at fairly fession which the trial is determined voluntary.” 395-96, Id. to be L.Ed.2d at at 1790-91, S.Ct. at 926-27. Clearly, proposition Jackson stands for that an accused right stage has some a constitutional “at in the proceedings object to the use confession and [his] to have hearing fair a reliable determination on 376-77, issue voluntariness.” Id. at at S.Ct. 1780-81, However, 12 L.Ed.2d at 915. Jackson finds no con- accused, requirement tried and con- that an once stitutional by confession was considered victed at a trial which his independent given if, later, and re- jury, trial new be voluntary made that the confession was liable determination jury. thus, properly before the and, only opinion that, writer since Jackson It is the of this the minimum which an accused is constitu- establishes procedure tionally this Court must bound entitled, be legislature. Indiana IC 35-5-5-1 established requires clearly independent and (Burns Ed.) Code “[bjefore determination of voluntariness be made reliable in evidence.” A new trial is neces- such confession is received statute, mandatory. sary comply Remand- which hearing ing evidentiary on the issue this case for an remedy any constitutional defects voluntariness procedure, but will not correct the trial court’s trial court’s hearing disregard legislative held mandate that grant is received evidence. into I would before the confession the face of the trial Payne new trial court’s error. however, majority opinion this Court, It only hearing evidentiary is first entitled to an If issue of voluntariness. it is determined at this evi hearing dentiary voluntary, confession was then committed trial prejudicial error was when the con no course, Of was received evidence. if trial fession the hearing after the determines confession in court required, voluntary, a new trial will since convic involuntary an confession the basis of stand. on cannot tion 534, (1961), 735, Rogers Richmond 365 U.S. 81 5 v. S.Ct. 760; Payne (1958), 560, Arkansas v. 356 U.S. 78 L.Ed.2d 844, majority The that, pursuant reasons L.Ed. 975. S.Ct. hearing Jackson, constitutionally such remand for long Payne Further, independent so receives acceptable. determination and reliable voluntariness of his con jury, presence of the he fession, out of the cannot establish from the trial court’s error. harm evidentiary hearing the

The case is remanded for an Payne’s confession, consistent issue of voluntariness majority expressed If trial herein. court views involuntary, Payne’s finds the confession conviction should granted Payne be set aside and should be a new trial. If the voluntary, Payne’s trial court finds confession conviction affirmed, remaining find no since we reversible error in the presented issues for our review.

II. Entrapment by supplied Kaeding, the basis On of information informer police up buy marijuana decided set controlled Payne. Payne police probable from contends that the had no suspect engaged illegal conduct; cause to that he was police therefore, had up no reasonable basis set plan buy responds from The him. State Kaeding supplied informer cause to dealing possession drugs. with and in entrapment The substantive defense of arises “the when committing originated a crime idea of with law enforcement agents,

officers or their and the accused had no previous by intent to violate the law but induced agents or their to commit May a crime.” (1972), App. 135, State v. Ind. 137-38. 803; (1972), Smith State 258 Ind. See 281 N.E.2d Walker v. 255 Ind. 262 N.E.2d Fischer App. 312 N.E.2d This goes defense charge against substantive to the merits of the the defendant and ais factual be resolved jury. Locklayer v. State App. 64, 317 N.E. 2d 868. jury was instructed on the defense entrapment, returning guilty. Payne

it denied defense a verdict of jury’s not does contest verdict. entrapment, the defense the defendant raises

When establishing that, before must introduce evidence alleged to be transaction which initiation agents had informa entrapment, the law enforcement suspect that probable cause supplied tion which v. Hauk engaged illegal activities. the accused was in State, Smith v. App. supra. State, v. Locklayer State, supra; Walker v. supra; “baiting trap” issue Indiana, probable cause for In entrap question separate the substantive distinct from and de court’s the trial ment matter of law for issue and is a supra. v. Locklayer State, State, supra; termination. Walker v. precludes probable cause The failure to establish State’s State, supra; v. product of scheme. Smith use of the work Locklayer State, supra. Payne’s objection the introduc-

The trial court overruled implicitly marijuana determined tion of the evidence and suspect police matter had cause of law that illegal engaged in that activities. sup- the evidence is sufficient

before this Court is whether it is. port conclude the trial court’s determination. We illegal Payne’s activities was cause to Probable Kaeding. supplied by informer solely on the information based dealing past police He informed the Michigan Payne’s frequent visits to quantity on a basis supplied informer City. information conclude We Kaeding sufficiently to form extensive and reliable necessary probable cause. greatly in tips vary recognize informer’s

We reliability. relia- may be sufficient indicia of What value type may be justify action bility to one justify Adams Wil another. See insufficient 1921, 32 L.Ed.2d liams S.Ct. 407 U.S. recognize frequently are that informers used also 612. We théir use has been laws and that of narcotics the enforcement approved by showing reliability. upon our courts See v. State Wagner (1968), 457, 233 249 Ind. N.E.2d reliability stated in cases test most often

discussing probable cause to arrest: probable supported “While indeed created cause be by strated ciently high. informer, supplied by must demon information an be accuracy probability ‘tip’ that the is suffi is, to be That the informer must be shown referring doing his reliable. One manner of this is to past trinsic reliability. record of to ex Another is reference facts, including may relate, test those which he accuracy.” 30, his (1971), Ind. 27, Bowles v. State 256 58, 56, citing McCray (1967), 267 N.E.2d 386 v. Illinois 300, U.S. 1056, Draper 87 S.Ct. 18 L.Ed.2d United v. States 327; 958; 358 3 L.Ed.2d U.S. S.Ct. United States v. Franke (7th 1969), 409 F.2d Cir. Weigel v. 250 N.E.2d 368. An arrest significantly more person’s severe invasion of a constitutionally protected rights plan up op than a to set an portunity to commit a crime. An arrest involves an invasion privacy by seizure body. and often search of the accused’s A scheme trap particular suspect also in involves an privacy by vasion of agents police infiltration of into group of the accused’s acquaintances, friends and but this invasion cannot be said to be as intrusive as an arrest or person. detention of the probable Thus the cause tests trap, differ. police To bait a probable must have cause activity; criminal arrest, to effect police an must reasonably have cause to believe that a crime being has been or is committed. Stuck v. State degree Ind. 264 N.E.2d 611. The credibility required when information must be sufficient suspicion to justify a activity required criminal is less than when information justify must be sufficient to a reasonable belief that criminal activity occurring. has occurred or Locklayer State, v. supra, 317 N.E.2d at 872 n.3. police up

When plan buy officers set Payne, from there were no extrinsic facts available to test Kaeding However, credibility. Kaeding’s informer past relia anonymous whose informer was not Com independently determined. bility could not be (1973), 157 pare State, supra; Jackson Bowles not informers App. 662, (anonymous to two reliable). Kaeding known personally shown to grown investigation. had The officers officers involved Kaeding’s up neighborhood only from blocks same two twenty-seven family Kaeding over home and had known Kaeding during that time years. The officers testified always against been previous charges had had no him and inquiries. We conclude honest his answers to Kaeding’s suffi the trial information court could found have probable cause ciently reliable credible to establish activity. suspect Payne’s criminal

III. Suppression the Evidence pounds marijuana Seven and a scale were admitted into Payne’s objections. evidence over The and scale green were in a suitcase which was found the informer Kaeding’s Payne car. contends that this evidence the fruit is illegal search, probable an since were without to him cause arrest He without further contends warrant. so to evidence was not mobile as fall an within exception requirement. to search warrant standing object

The State contends that has no search, since the vehicle which the suitcase belonged Kaeding found to informer who consented Further, probable search. contends that there was State upon cause to known It relies the in- seize contraband. exigent supplied informer Kaeding, formation circumstances.

406 Standing

A. right object The to an unreasonable and seizure search property personal. party’s is A a third con violation of rights by

stitutional unreasonable search and seizure ground cannot be claimed an accused as a suppression. App. (1972), Butler 154 v. Ind. 361, 305, 772; (1968), 289 N.E.2d Kirkland v. State 249 Ind. standing 232 requirement N.E.2d 365. satisfied when the defendant possessory establishes a property interest possession searched or when of the seized property is an essential element of the offense. Jones v. (1960), United States 257, 725, U.S. S.Ct. 4 L.Ed.2d Burton v. (1973), 260 Ind. possession N.E.2d 790. Since marijuana contained in the suitcase an essential element present offense in case, Payne standing has object to the search and seizure of the suitcase and its contents.

B. Probable Cause to Arrest Indiana, In an arrest warrant must be obtained whenever practicable. (1970), Stuck v. State

611; Throop v. State 254 Ind. 259 N.E. 875; Bryant 2d v. State App. 299 N.E.2d exception 200. An to the arrest warrant requirement arises when there arrest, cause to exigent coupled making obtaining circumstances impracticable. arrest warrant State, Stuck supra; Bryant supra.6 State, exigent It is the circumstances that decision, In recent United States v. Watson 423 U.S. 411, F.2d 849 820, 96 S.Ct. 598, 46 L. Ed. 2d 4112, reversing 44 U.S.L.W. (9th 1974), Cir. the Supreme United upheld States Court postal inspection which statute allowed warrantless for arrests felonies arresting- if to be arrested grounds officer had “reasonable person to believe that the committing has committed or felony.” is such a 18 U.S.C. 3061(a). § The Court held that permits the fourth amendment warrant- upon probable less arrests for felonies regard cause without to the exist exigent ence of circumstances: “Congress power plainly against has conditioning decided warrantless arrest proof exigent circumstances. Law enforcement officers may practicable find it wise to seek arrest so, warrants where to do judgments probable may and their about readily cause be more ac- cepted by by magistrate. where backed a warrant issued . . . But we judg- police on-the-spot justify officer’s the substitution impartial judgment probable cause for the ment as to issuing judicial a warrant. officers facts and circum- exists “where cause to arrest

Probable sufficiently arresting officer, heor has known to an stances are reasonably them, lead trustworthy information of being that a crime has been or him to believe 356-57, State, supra, 255 at Ind. committed.” Stuck Exigent at circumstances exist when 264 N.E.2d 614. police has reasonable cause to believe that a crime officer being Hauger presence. committed in his Von v. State 69, (1969), 254 Ind. 257 N.E.2d Williams v. State may Exigent 253 N.E.2d 242. circumstances Ind. traveling moving suspect in a exist vehicle also when juris may quickly easily transport him which and from diction. may sup upon cause information

Probable to arrest exist Wagner plied by a reliable informer. Reliability be shown 233 N.E.2d past relia

by reference informer’s record bility proving or extrinsic the informer’s facts Bowles reliable. v. information supra. II 267 N.E.2d 56. See discussion Section justified. arrest without a warrant conclude We Kaeding’s informer vehicle turned west on When Second signal police Street, prearranged was a this Kaeding’s marijuana. past In addition to contained vehicle relationship police past trust- with the and his record of worthiness, extrinsic there were facts available to the officers Kaeding’s reliability test which information: Michigan City; Kaeding arrived had told the preference judicial to transform this into a decline constitutional rule judgment Congress long of the Nation has

when the been so public warrantless arrests on than to authorize to encumber to the cause rather litigation prosecutions respect criminal with endless exigent circumstances, practicable existence whether warrant, get was about to like.” whether flee and the (citations at 44 U.S.L.W. 4115-16 footnote 96 S. Ct. omitted). 408 address; Payne Drive

that he to meet a Lake Shore Kaeding address, to this and saw him enter an officer followed emerge a Payne; residence and with and an officer observed Kaeding. large Payne carrying green suitcase described part supplied facts of the information These extrinsic verified Kaeding by Kaeding. Further, west had no reason to turn if there was no the car. When Second Street Kaeding arranged, police turned on were Second Street justified reasonably believing that con- contraband was tained vehicle. exigent moving coupled

The circumstances vehicle probable cause to believe con- that vehicle justified

tained a contraband the arrest without warrant. Scope of

C. the Search placed The officers under arrest and seized large green Kaeding’s suitcase from the rear of car without scope The warrant. a search incident to valid is generally

arrest limited to person a search of the of the arrestee and the area within his immediate control he weapons destroy to which could reach for or to evidence.7 Chimel v. (1969), 395 752, 89 U.S. California 2034, However, 23 L.Ed.2d exigent S.Ct. when the cir- cumstance a movable vehicle is combined with that cause to believe seizable contraband items are contained vehicle, within that movable the inherent necessities of permit circumstances a search of the entire vehicle its regard safety contents within officer’s possible or the v. See Maroney destruction of evidence. Chambers (1970), Carroll v. United 1975, 419; 399 90 26 42, S.Ct. L.Ed.2d U.S. (1925), 132, 280, States 267 45 U.S. S.Ct. L.Ed. 264, Paxton 263 N.E.2d 636. Supreme United States Court 7. The in United States v. Robinson 218, 467, U.S. S.Ct. 38 L.Ed.2d Gustafson Florida 414 U.S. 94 S.Ct. 38 L.Ed.2d held thorough person search a needs no incident to a valid custodial arrest justification apart independent from the arrest. Kaeding’s have temporarily stopped. It could car was green could have been suitcase abruptly left the scene. or the officer’s view from out the car and hidden taken We conclude of others. have fallen into hands could exigent probable cause and evidence of there was sufficient determination support the trial court’s circumstances justified. the search warrant was without Payne of and the warrantless the warrantless arrest Since valid, suppress of the suitcase were motion search and was as a result of arrest search evidence obtained properly overruled. Custody Chain

IV. of Payne the suit- contends that all the evidence seized from there was evidence case should have been excluded because tampered were with that contents of suitcase Kaeding’s marijuana by the of informer addition Payne’s custody. police while the suitcase inwas case, present there no contention is without merit. In suggestion missing custody, there is no link in chain of and tampering 253 Ind. of See Graham v. State or loss.8 Kelley App. N.E.2d denied, N.E.2d transfer custody rule. purpose of of the chain of for discussion separately identi testified that he marked and Officer Johnson bags marijuana other within the fied nine of and items suit Kaeding’s shortly the suitcase was obtained from case after Sergeant turned the suitcase over to car.9 Officer Johnson Abraham, kept his ex the suitcase its contents in who possession later in a locked evidence cabinet. Abraham clusive the suitcase Johnson, who took the suitcase to Officer released Payne suggests Kaeding’s marijuana commingled was with 8. marijuana because the the were suitcase suitcase and its contents assigned Payne number identified case “Defendant Walter Kaeding.” The inference and Lance drawn from evidence alone this tampering. clearly insufficient establish bag marijuana, Apparently, one other of retrieved from location, identified, placed marked, in the suitcase. car at another bag However, was not introduced into this evidence. testing

and its contents to the and then returned the lab Thereafter, suitcase to Abraham. the suitcase and its contents testimony remained in locked cabinets. of various cus- complete custody. todians established a and unbroken chain of bags marijuana Nine were introduced into evidence at trial. tampering. Our review of the record discloses evidence no properly We conclude the evidence was admitted at trial. Testimony Admission Oral V.

Shortly Payne July 26,1972, signed after was arrested on he rights questioned by police. a waiver of form and was containing marijuana He ownership confessed his aof suitcase any and, response marijuana inquiry in to an about other possession, police pound his informed he had another Long Beach, in his car in consented to a Indiana. car, July 26, search this later on and, went Long bag. Beach and retrieved this other August 1,1972, Payne formally charged On affidavit possession pounds seven LaPorte County, Indiana, July 26, on 1972. This affidavit was accom- panied supporting Payne specified a affidavit which that possession pounds marijuana was in of seven of at Second Michigan City, Indiana, and in p.m. Wabash Streets at 8:15 July 26, Michigan Long on City 1972. Both and Beach are County. in LaPorte trial,

At the State introduced into evidence the suitcase contents, expert and and testimony its introduced that there pounds marijuana a little was over seven of in the suitcase. bag The did Payne’s not offer evidence in State that the found marijuana car bag contained did and not introduce this into was, however, concerning evidence. There testimony oral bag Payne objected this other and how it was retrieved. to testimony ground proof Payne’s possession this the that on of bag proof separate of other this constituted of a crime and marijuana possessing distinct from the crime of at Second charged, Payne was Streets, crime which the with and Wabash charging the between that was material variation such there Payne misled proof presented at trial which and affidavit preparation of defense. his charged Payne possession argued with that was The State 26, 1972, that marijuana July County on in LaPorte of Payne's marijuana found in was whether it was immaterial argued that Further, in the suitcase. State or car bag testimony other concerning retrieval of this was waiver the issue of voluntariness relevant to rights ownership of the subsequent confession suitcase. testimony admitted and after the had

After was State # bag 14, identified the the court admon- as State’s Exhibit jury ished follows: disregard jury “THE State’s of some crumbled leaf-like material or believed admonished COURT: The Exhibit Number bag 14, appeared which be marijuana, alleged to be disregard marijuana; totally it and to be surrounding any particular testimony or comment except tend to Exhibit would State’s Number willingness not tend to indicate defendant’s indicate or department cooperate the arrest with the after alleged 2nd the date of the crime Wabash and Streets. on ?” Is that clear proved cannot

It clear one crime establish Sumpter another distinct crime. Ind. Layton present case, particular In the 221 N.E.2d 881. charged possession crime which County, Indiana, July 26, LaPorte charging purpose affidavit to inform the accused against specific offense him in that he order prepare adequately his Wilson v. State defense. By charging App. 330 N.E.2d 356. the terms of the

affidavit, Payne charged was informed he was with marijuana any possession seized from his possession of on July Any prejudice which have 1972.10 supporting resulted affidavit referred from fact that specific to the location Second and of Streets Wabash mitigated by doubtless the trial admonishment court’s bag testimony concerning jury to consider the this other only showing Payne’s willingness purpose limited for the cooperate with the on the date offense.

This evi- cause remanded to trial court for a full hearing dentiary of the the issue voluntariness of ownership confession of suitcase and for further proceedings majority expressed consistent with views opinion. in this

Garrard, J., opinion; Hoffman, concurs J., with concurs I, III, to Issue Issue IV and Issue Issue V. Concurs in result concurring II; concurring Judge opinion also in as to Issue Garrard.

Concurring Opinion agree failing J. While I that the court erred in Garrard, hearing regarding Payne’s confession, to hold a voluntariness agree III, V, and further resolution of Issues IV my analysis entrapment of the issue differs from Judge Staton.

Under the majority opinions decisions of this state and the Supreme Court, entrapment presents States United to be determined the trier of It fact. exists when government, through agents, engages its a scheme trap entices, lures or induces accused into committing offense he would not otherwise have committed. government agent It merely does not exist where the affords opportunity the would-be criminal for his crime. Sorrells 435; U.S. U.S. U.S. v. Russell (1973), 411 U.S. v. State Walker 262 N.E.2d 641. eight pounds 10. The fact there little was a over Payne’s possession, pounds, instead of seven would not amount proof. material variation between affidavit and the upon view, inquiry this the is focused Accordingly, under problem subjective The of the defendant. one of the intent i.e., is there sufficient evidence evidence, law, not substantive may reasonably the trier probative of from which of fact value beyond possessed that the defendant a reasonable doubt infer requisite independent intent? the may de- proof consist of evidence of a such often

While misconduct, prior the same kind of convictions for fendant’s misconduct, although prosecution prior such no or of acts of apparent proof had, reason to limit the there is no state’s predisposition Circumstantial evi- kind of evidence. to this giving necessary might inference of intent dence rise possession things as defendant’s of be found in such also large quantity purpose of that contraband of such a Knowledge might selling prices on inferred. of the crim- be supply; possession apparatus of and of sources of inal market manufacture; the manner of sale itself and the de- solicitations, participate; readiness assurances fendant’s evincing willingness conduct defendant’s or desire or other engage sales; these be in future all circumstances quantum evidentiary legiti- germane If issue. to the guilt, necessary supports inference evidence mate subjective support test would conviction. application addition, entrapment judicial that it should noted In not proportions. does rise to constitutional which doctrine supra. Russell, v. U.S. entrapment appears

Accordingly, it to me defined as majority requirement gov- contains no that the the Sorrells they agents cause to a defendant have before ernment trap him. determine

However, in v. State Walker stating, spoke Supreme requirement, of such a Court our entrapment the requirement he appellant evoked defense of “When upon proving imposed appellant suspecting probable cause had engaged illegal in conduct.” 255 262 N.E.2d 641, 645. attempted characterize While I have this statement subjective merely test, intended to reflect the intent I can- not do so. place, opinion

In the the statement first was made admitting justification hearsay evidence of the accused’s predisposition question. to commit kind of offense in Thus, jury. originally case was tried the court without a appeal hearsay the court on could have considered the ad- light produced of the other mission harmless evidence presumption by court, trial and the in a trial the disregard judge properly Instead, will inadmissible evidence. ground ruling probable the court chose to its on the cause requirement.

Secondly, clearly established evidence that on the being tried, he as occasion for which was well as several previous occasions, it the defendant who solicited the they rather buy, officers to than who solicited him to sell. circumstances, entrapment the claim such of in terms Under independent improbable intent of is so the court could speaking probable misled into not have been cause when predisposition it meant to commit the crime. context, only can

In this one conclude does Indiana requirement. separate impose a addition, require-

In the court affirmed the cause ground ment as an alternative for reversal in Smith v. State (1972), 258 Ind. 281 N.E.2d 803. impact requirement this must be other than the requirement ascertaining

Sorrells inde- defendant’s long pendent Otherwise, intent. as as the evidence admissible clearly available sufficient to demonstrate the defendant’s willingness engage independent prohibited desire or to conduct, simply it immaterial would be whether or not grounds him of criminal police had reasonable opportunity to commit activity they provided him an before the offense. Judge Lybrook by in Hauk

As alluded to v. may purpose that only App. 390, 312 N.E.2d 160 Ind. examination, the accused’s by not of the rule is an served engage government justification intent, but See, (1958), 356 activity. Sherman U.S. U.S. in creative necessary inquiry is made not believe such I do While are, course, majority,1 theory by the Sorrells we it Supreme determination until Court’s our bound changed consequences ruling clarified. of its are or Locklayer agree District the First

Furthermore, I if, 868, that App. 64, 317 hearsay inadmissible held, which as the court Walker probable cause guilt determine admissible to establish in the absence the court issue, determined then should be jury as of law.2 criminal our determinations Accordingly, with similar desires make, a defendant upon where courts are called questions additionally, and, rely upon entrapment defense aas government agents possessed the reasonable whether engaged before in criminal conduct suspicion that he was place,3 he prosecuted took he is transaction for which determining the hearing by purpose of for the the court seek presented. question law thus request, objection or

However, such an in the absence of during appears that trial first or when trial, either before engaged activity in order agents in creative government by might presented the nature of question A different 1. U.S., supra. activity. v. Bussell v. Sherman U.S. and See creative However, Locklayer upon Walker in this assertion. relied Walker 2. opinion majority language court and the on a trial arose question clearly of law. court as a determination not mandate does point. is silent Smith appears test. to be the 3. This Walker offense, “probable prosecute cause” commission objection.4 deemed waived for lack issue should be Cf. Tyler Johnson (1968), 250 Ind. State 922. App. 104, 281 N.E.2d v. agree “implicitly” Thus, court found I that the trial do not Instead, I conclude suspect did exist. cause to timely by Payne, it raised that because the was not was waived. Reported at 343 N.E.2d 325.

Note. — Berridge. Harrell of Indiana C. Moss James Rehearing April 28, 1-275A30. Filed March [No. denied 1976. August 17, Transfer denied 1976.] Sendak, Theodore Attorney General, Spear, L. Robert S. Deputy Attorney General, appellant. for

Bates, Noffsinger, appellee Warrum & of Evansville, for Montgomery, appellee Moss. Malcolm Evansville, G. Berridge. state, might court, question during 4. The or the also raise the hearing-pretrial omnibus conference. 1C 35-4.1-3-1. In the absence pretrial disposition necessity formally entrap- pleading and the ment, appearance” “first occurs when the evidence first establishes that commission of the offense on trial came about as the result of the plan by government agent implementation trap of a the accused.

Case Details

Case Name: Payne v. State

Court Name: Indiana Court of Appeals

Date Published: Mar 11, 1976

Citation: 343 N.E.2d 325

Docket Number: 3-674A98

Court Abbreviation: Ind. Ct. App.