Riley v. State

RILEY, Edward Defendant- William

Appellant, Indiana, Plaintiff-Appellee.

STATE of

No. 45S00-9608-CR-538.

Supreme Court of Indiana.

May 1999.

491 (6) substance;

ed to be a controlled manifestly unreasonable sentence. Limitation Cross-Examination trial, testimony At State offered Anthony Young, informant, a confidential police arranging who worked with the the drugs purchase of from the defendant. return, Young leniency to was receive his drug charges. own criminal case on The sought Young to cross-examine as living arrangements. his to State ob- jected grounds relevancy, on the of and the jury’s trial held a conference out court of presence. The defendant contended that his purpose govern- whether to determine being provide ment funds were used to hous- ing living expenses Young. Although for and resumed, ruling the cross-examination a final delayed par- Bower, Thiros, the trial court was until all Stephen Merrill- Cohen & ville, Indiana, had read the relevant case law on the ties Appellant. for subject. Subsequently, the trial court con- Carter, Attorney Pamela General hearing jury’s out of the ducted another Fossum, Indiana, Deputy Attor- Priscilla J. presence, Young found that had a reasonable General, Indiana, ney Indianapolis, Ap- safety, fear for his and denied the defen- pellee. request inquire to as to the dant’s witness’s street address. The trial court allowed the DICKSON, J. inquire type defendant to as of accom- resided, Young paid in which who modations defendant, ‍​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌​​‌​​‌​​‌​‌​​‌​‌‌​​‌​​​​​​​‍Rilеy, William Edward residence, general and the location. for his cocaine, dealing in convicted of two counts of pursue The defendant did not this informa- felonies;1 dealing A in a both as class sub- tion. represented stance to be a controlled sub- stance, felony;2 possession D a class and of a pre- The defendant contends that he was felony;3 drug, narcotic D and he was class question government sumptively entitled to addrеss, found to be a habitual offender.4 The trial citing informant as to the witness’s court sentenced the defendant to an en- Pigg v. 603 N.E.2d 154 sixty years. hanced sentence of This Court The defendant also contends that the trial jurisdiction Appel- pursuant hearing has to Indiana court failed to hold an in camera 4(A)(7). Young late Rule determine if had a reasonable basis for the claimed fear. (1) The defendant claims six errors: trial court’s limitation on cross-еxamina- When a defendant seeks to cross- (2) informant, informant; pre he tion of a confidential the trial examine a confidential question inquire improper sumptively court’s answer to a from entitled to into such mat (3) deliberations; jury during at 157. insufficient ters as the witness’s address. Id. however, absolute, possessed right may evidence that the defendant more This is not (4) cocaine; grams than insufficient be limited if the trial court finds that three disprove entrap- danger were evidence to the defendant’s witness has a reasonable fear of (5) Thus, defense; his Id. we have ment insufficient evidence he to disclose address. represent- required in a the trial court to conduct an in the defendant dealt substance (1993). (1993). § § 1. 3. Ind Code 35-48-4-6 Ind.Code 35-48-4-1 (1993). (1993). § § 2. 4. 35-50-2-8 Ind.Code 35-48-4-4.5 Ind.Code through asking, [in “Do all answers to A I during which the defendant hearing camera 13], resulting predisposed potential have to be instruction demonstrate сrime, pursue allowed to ... if the if he not commit the prejudice trial deci- inquiry. predisposed court’s to commit the Id. We review defendant was discretion, the bur- alleged for an abuse crime or not.” Record at 791. The sion seeking party the information parties den is on the back into the trial court called the courtroom, an abuse. Id. question them to the informed asked, and, objection, over the defendant’s contention Desрite the defendant’s ques- stated that it intended to answer not conduct the re the trial court did Id. tion “no.” clearly hearing, the record discloses quired jury’s hearing occurred outside jurors request When additional argu and presence5 during which evidence court, proper proce guidance from the the ruling made. presented and a was ment were judge notify parties for the to the so dure is to how has failed demonstrate The defеndant may present the they be before court that comply require with hearing not our this did jury communicates with the informed hearing camera be conduct ment that an in proposed response. v. of the court’s Moffatt ed. (Ind.1989). State, 971, 542 N.E.2d 974 When hearing, During the the State identi gives special a instruction on the trial court support finding a evidence that would fied issue, particular emphasize it one tends danger Young that had a reasonable fear of being primary importance that of issue Young testi he to disclose his address. were jury ought it and tends to tell the what to do. that at trial that he believed the defen fied State, v. 426 N.E.2d 36 Wallace kill him if the defendant knew dant would 1981). the trial court undertakes to When In Young working police. with the addi was jury regarding questions from the answer tion, Young’s moving receipt expenses a the instructions without notice to or outside court, the trial a move at wаs submitted to presence parties, pre the a the of rebuttable Young’s fear for partially least attributed sumption prejudice Stanley of arises. v. safety. The trial court also acknowl his own 1117, 1120 515 N.E.2d Young edged that both and the defendant par- trial in called the The court this case had been witnesses to murder or close ties into the courtroom and informed them of Considering victims. friends of murder jury’s question the and his intended re- facts, a thesе the trial court concluded that sponse. timely objection, a the court Over existed. The trial court did reasonable fear “no,” responded question which to the with not abuse its discretion. expression the law set forth was a correct case, in the facts in this the instruction. On Question Jury likely response find it that this we do not contends the trial court defendant unduly particular in- emphasize would the answering specific question in from erred jury’s struction or influence the action. We jury during the deliberations. Because prejudice response. find no the trial court’s defense, presented entrapment an defendant answering that jury was as to factors that it The defendant contends instructed jury’s question giving might whether the constituted the consider during predisposed was to commit the additional instruction deliberations defendant deliberations, meaning in- charged During explained it of the crimе. because argument, jury question support In of this sent a written to the trial court struction.6 ” presented suggest spec- been 5. "In camera is defined as follows: "In cham- evidence has bers; present. private. judicial proceeding A is said to tators were hearing be heard in camera either when brief, judge reply private 6. We note that in his had before the in his chambers additionally argues suggests spectators that the record when аll are excluded from the court- (6th jury Dictionary communicated with the out- room.” Law 760 the trial court Black's ed.1990). Here, presence. Reply proceeding Brief at 7. occurred side the defendant’s before courtroom, argues jury trial com- brought and no defendant that the court’s into the upon two cases in which the sider the named factors. It is clear from the relies given court had additional instructions jury’s jury trial question that the believed it Wallace, 36-37; jury. N.E.2d at to the guidance have had insufficient as to whether 986-87 Faceson proven all factors had to be in order to Wallace, (Ind.Ct.App.1994). In the deliber- case, predisposition. establish In such a ating jury requested legal definitions of “no”, correctly reply trial 'court’s which instructions, in the and the trial terms used apparent stated the law and addressed an provided court a written instruction address- instruction, gap in the was nоt error. ing the terms at issue. We held this to be Faceson, reversible error. Id. at 36-37. Insufficient Evidence of Wallace, upon Ap- which relied the Court of Amount of Cocaine peals when the held it to be reversible error parties open trial court failed to call the into argues The defendant the evidence jury’s ques- responding court before insufficient to that he dealt cocaine tion, giving defining it written instructions grams, necessary an amount over three “intent,” “dealing,” “delivery,” the words dealing element to convict him of in cocaine “possession.” at 986-87. felony. A It undisputed as a class that the The defendant contends that Wal weight packaged pur- total material require lace and Faceson the trial court to from each chased the defendant on of the two any all reread of the instructions and that grams. occasions exceeded three The first response agree other constitutes error. We W, packages, set of State’s Exhibit had a generally accepted procedure in that the an weight grams. total of 10.15 The second set ‍​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌​​‌​​‌​​‌​‌​​‌​‌‌​​‌​​​​​​​‍jury’s swering question on a matter of law X, packages, State’s Exhibit had a total reread all is to instructions order to avoid grams. weight of 6.21 The lab technician emphasizing any particular point and not to who tested the seized matеrial combined the qualify, modify, explain its instructions packages contents of several within each Wallace, any way. 426 N.E.2d at 36-37. group sample and determined that each test- However, any we have also held that error in cocaine, positive ed for but the technician did refusing jury’s question to answer the would purity not determine the relative of the co- State, be harmless. Averhart v. 470 N.E.2d weight. in relation to its overall caine 666, (Ind.1984), 471 690 cert. denied U.S. (1985). 1030, 2051, 105 L.Ed.2d S.Ct. 85 323 The defendant contends that the Further, notes, as the State we have also failed to that the defendant State establish permitted departure procedure from this grams dealt more than three of cocaine when a trial court is faced with extreme circumstances, including because the technician did not establish the such as an omitted necessary correcting instruction or an purity sample. relative of the law Our case instruction, long erroneous as as it is “fair to establishes, however, weight “[t]he total parties in the sense that it should not drug pure compo of the delivered and not its judge’s reflect the view of factual matters.” prosecutions.” nent is to be considered in State, 1002, Jenkins v. 424 N.E.2d (Ind. State, 1003 508, Tobias v. 479 N.E.2d 511 (Ind.1981) (citations omitted). Thus, “when the 1985). legislature We have found that the jury question legal coincides with an error or weight of intended to use the the entire [gаp] in ... lacuna the final instructions defendant, by the substance as delivered response rereading body other than from the encompasses understanding this the common permissible.” of final instructions is Id. drug trade. v. of those Woodson State, (Ind.1986). 409, 501 N.E.2d 410 Here, stated, not in instruction required prove purity correctly, State was not jury permissive that the had the ability, mandatory duty, product. quantity but not the to com The evidence of was not. suggest responded jury ambiguous timing, that he be as to the it ments the record calling parties clearly support

before into the does not the defendant's conclu- courtroom and providing notice of his intended answer. While sion. 494 Predisposition say that he was cer heard Evidence

Insufficient selling “bogeyman,” indi- which record claims that the evi The defendant term for a cates was the defendant’s sub- that he was insufficient dence not, resembles, cocaine. stance that but trial, At commit the crime. predisposed to neither told the officer that he The defendant entrapment on an de the defendant relied selling him him cocaine nor informed may rebut this defense fense. The State a con- “bogeyman” that the did not contain by disproving police inducement or either Rather, in- trolled substance. the defendant predisposition to proving the defendant’s the officer that the substance сould formed State, 674 commit the crime. McGowan resold as cocaine and that the officer (Ind.1996). 174, 175 N.E.2d money paid he could make nine times reviewing a claim of insuffi dollars, being paid it. After two thousand evidence, only we consider the evidence cient provided with a ‍​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌​​‌​​‌​​‌​‌​​‌​‌‌​​‌​​​​​​​‍the officer verdict, all supports and we draw paper bag containing three smaller brown from that evidence. reasonable inferences powdery plastic bags filled with a white sub- (Ind. State, 573, Dockery v. 644 N.E.2d 578 argues that the evi- stance. The defendant 1994). reweigh nor We neither the evidence because the defendant dence was insufficient judge credibility of the witnesses. Mar represent did not it to be cocaine and shall v. bought it knew that it was the officer who proba will be affirmed if the The conviction not cocaine. reasonable inferences tive evidence and which the defendant was statute under the evidence could have allowed drawn from convicted7reads: of fact to find the defen a reasonable trier beyond (a) guilty dant a reasonable doubt. knowingly person A who or intentional- McEwen v. ly delivery any delivers or finances the 1998). substance, other than a controlled sub- drug prescription a stance or a for which is The evidence most favorable to the law, required under federal or statе that: judgment was familiar is that defendant (1) impliedly represented expressly is or drug jargon prices, engaged with and that he substance; to be a controlled transactions, multiple in and that he under arrange These took to future transactions. (2) under is distributed circumstances predisposition facts are sufficient to show a person that would lead a reasonable See, e.g., in to deal controlled substances. a believe that the substance is controlled (Ind. Martin v. substance; or 1989) (familiarity drug jargon with and two (3) by dosage appearance, overall unit sales to undercover officers sufficient to dem color, size, including shape, markings, or drugs); predisposition onstrate to sell Wal taste, markings, consistency, of or lack lace v. 964-65 any identifying physical character- other 1986)(familiarity drug prices with and efforts substance, would lead a rea- istic arrange among сircum future transactions person to believe that the sub- sonable conviction). support stances which substance; stance is a controlled dealing represent- in a commits substance Dealing Evidence Insufficient of substance, a D ed to be a controlled Class Purported in Controlled felony. Substance (b) representa- whether The contends that the evidence In defendant made, subject to subsec- was insufficient to that he dealt in tions have been show (a)(1), or whether circumstances of represented to a controlled sub- tion substance exist, subject judg- to the distribution to subsection stance. The evidence favorable (a)(2), consider, police the trier of fact ment reveals that an undercover offi- pro- charging jury 7. the criminal conduct and the instruc- but rather described instrument (a)(2) (a)(3) (a)(1). by tions were or scribed section not based on sections factors, make nine times that the fol- the officer he could to other relevant addition addition, In amount on the sub- re-sale. lowing: stance, ounces, totaling two was divided and (1) by or made the owner Statements packaged separate plastic bags three substance, person in control of the other placed paper bag. Finally, were a brown nature, use, concerning the substance’s substance, delivering or еffect. car, placed bag on the floorboard of the (2) by any person, to made Statements directly handing rather than it to the officer. substance, buyer recipient or may be the substance resold activity proscribed The criminal profit. statute is not limited to circumstances when (3) packaged Whether the substance repre- explicitly personally an offender uniquely illegal for the in a manner used sents that the substance delivered is a con- distribution of controlled substances. knowledge The actual trolled substance. (4) Whether: purchaser not an element of the (A) charged included an ex- The determinative element the distribution offense. for, of, change money or is whether the non-controlled substance was or demand consideration; property “expressly impliedly represented to be a other § controlled substance.” Ind.Code 35^8-4- (B) thе amount of the consideration 4.5(a)(1). substantially greater than the reasonable retail market value of the case, engaged in In this the defendant was substance. selling expressly repre- that he substance (1993). § 35-48-4-4.5 State Ind.Code profit. could be sold as cocaine for a sented never told the concedes that the defendant 35-48-M:.5(b)(2). Further, § Ind.Code cocaine; how- officer that the substance was in a man- packaged the substаnce ever, argues impliedly it that the defendant illegal “uniquely ner used for the distribution a con- represented that the substance was § 35- of controlled substances.” Ind.Code the officer trolled substance when he told 48-4-4.5(b)(3). Finally, the distribution of profit. that it could be resold at a exchange included an of mon- this substance ey “substantially greater than statute, in an amount construing we look market value of the sub- the reasonable ordinary, meaning plain, and usual 35-48-4-4.5(b)(4). § stance.” Ind.Code clearly language unless the statute itself contrary meaning. provides a Marion Coun facts, find that the evidence is On these we ty Peoples v. Broadcast Merit Bd. Sheriff’s support this conviction. sufficient to (Ind.1989). 235, ing Corp., 547 N.E.2d 237 Manifestly Unreasonable Sentence whole, examine statute as a We also the (Ind. Lawrance, 32, N.E.2d 38 Matter 579 final contention is that he The defendant’s 1991), presume legis that the and we do not manifestly a unreasonable sentence. received language used in a statute to lature intended to trial court the defendant sentenced bring applied illogieally or to about an thirty years presumptive on sentence result, unjust ex rel. Hatcher or absurd State (enhanced dealing in cocaine one count of Three, Court, Superior Room 500 v. Lake find- sixty years to the habitual offender due 737, 739 N.E.2d to run concur- ing) and ordered this sentеnce remaining (thirty rently sentences expressly authorizes the with The statute years dealing in cocaine on the other count of trier of fact to consider the circumstances remaining years of the in there has and three on each the sale whether counts). Acknowledging that is the sentence implied representation an that the sub been maximum, statutory emphasiz- but a controlled substance. Ind.Code within the stance is 35-48-4-4.5(b). Here, ing elements of § the defendant deliv that the offense involved entrapment prey fallen and that he had ered two ounces of non-eontrolled sub friend, urges stances, the defendant ephedrine, price enticements of a caffeine and for the year excessive. sixty that sentence is The defendant told of two thousand dollars. 496

Sentencing normally left to the Conclusion is court, Elmore v. of the trial sound discretion judgment of the trial court is affirmed. (Ind.1995), and, State, 1216, 1219 N.E.2d 657 empowered is to review although this Court sentences, BOEHM, JJ., we will not do concur. criminal ‍​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌​​‌​​‌​​‌​‌​​‌​‌‌​​‌​​​​​​​‍SELBY and revise “ ‘manifestly unrea the sentence is so unless SULLIVAN, J., concurs and dissents with the offense light of the nature of sonable ” SHEPARD, C.J., separate opinion in which offender.’ Prowell the character of the concurs. (Ind.1997) 563, State, 568 687 N.E.2d

v. 17(B)), cert. de (quoting Ind.Appellate Rule SULLIVAN, Justice, concurring and dis- — 104, -, 142 119 S.Ct. nied U.S. “ senting. (1998). Additionally, ‘the issue L.Ed.2d 83 judgment the sentence not whether our except majority’s opinion I concur unreasonable, clearly, whether it is but of the claim discussed under for its resolution ” obviously v. so.’ Thacker plainly, and Dealing- caption, Evidence of “Insufficient (Ind.1999) State, (quoting 10 Purported Controlled Substance.” Brown Dealing convicted of Prowell, The defendant stands 1998)); N.E.2d at 568. Represented in a to Be a Con- Substance argues that The defendant § 35-48-4- trolled Substance. Ind.Code warrant nature of the offense does not 4.5(a)(1) (1993). To secure a conviction on he was en presumptive sentence because required charge, this was State arguments trapped, relying upon his on the beyond a the defen- reasonable doubt swpra, sufficiency As noted of the evidence. knowingly intentionally dant or delivered or rejection entrapment de jury’s’ that, delivery financed the of a substance by Entrap supported the evidence. fense is prescrip- while not controlled substance or in our de ment thus cannot be considered drug, “expressly impliedly repre- tion unreasonableness. termination of manifest to he a controlled substance.” Id. sented Citing Gregory v. 644 N.E.2d 543 (emphasis supplied). (Ind.1994), implies that con the defendant resulting from a series of secutive sentences majority acknowledges, the defen- As the stemming offenses the same defendant police dant did not tell the undercover officer “sting” operation state-sponsored are from a selling “bogeyman,” he cocaine but and, thus, manifestly we unreasonable but is not co- substance resembles manifestly should find this sentence to be represent caine. The defendant did not here, the defendant was unreasonable. But substance to be a controlled substance. for a not to consecutive terms sentenced Rather, expressly represented Instead, series of offenses. he received “bogeyman,” that the substance was which is thirty-year sentence, thirty-year with a ha not a controlled substance. The evidence enhancement; bitual offender his other sen charge. support does not conviction on this concurrently. tences run habitual of “[T]he punishment, finding separate fender is not a SHEPARD, C.J., concurs. underly ‍​​​‌‌‌​‌‌‌​‌‌​‌‌​‌​​‌​​‌​​‌​​‌​‌​​‌​‌‌​​‌​​​​​​​‍rather but an enhancement ing longer for a term conviction which allows imprisonment previous con because justice system

tacts with the have failed to

provide any meaningful deterrence Mayo

defendant.”

We are not convinced that the sentence in obviously clearly, plainly,

this case is

unreasonable decline to revise the and thus

sentence.

Case Details

Case Name: Riley v. State

Court Name: Indiana Supreme Court

Date Published: May 11, 1999

Citation: 711 N.E.2d 489

Docket Number: 45S00-9608-CR-538

Court Abbreviation: Ind.