Kenney v. State

549 N.E.2d 1074, 1990 Ind. App. LEXIS 143, 1990 WL 12700
CourtIndiana Court of Appeals
DecidedFebruary 13, 1990
DocketNo. 02A03-8908-CR-344
StatusPublished

This text of 549 N.E.2d 1074 (Kenney v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenney v. State, 549 N.E.2d 1074, 1990 Ind. App. LEXIS 143, 1990 WL 12700 (Ind. Ct. App. 1990).

Opinion

GARRARD, Judge.

Charles A. Kenney (Kenney) appeals his conviction following a jury trial for possession of a controlled substance in violation of IC 35-48-4-7, a class D felony, and dealing in cocaine in violation of IC 35-48-4-l(a)(l), a class B felony. We affirm.

ISSUES

Restated, Kenney’s appeal presents the following four1 issues:

(1) Whether the trial court erred by allowing the state to amend the information to add a count for dealing in cocaine;
(2) Whether the trial court erred in denying Kenney’s motion to suppress evidence based on the argument that his vehicle was improperly stopped and searched in violation of Kenney’s fourth amendment rights;
(3) Whether the trial court erred by allowing into evidence the testimony of the police officer who allegedly purchased the cocaine from Kenney and who later identified Kenney at the scene of the arrest; and
(4) Whether the state failed to offer evidence of Kenney’s predisposition to deal in cocaine to overcome the defense of entrapment.

FACTS

On the night of October 12, 1988 members of the Allen County and Fort Wayne Police Departments, as well as the Federal Drug Task Force, joined together to interrupt drug purchases and sales on Gay Street in Fort Wayne. While cruising Gay Street a confidential source accompanied by a disguised ACPD officer, Scott Huf-fine, were flagged down by two black males who offered to sell them crack cocaine. Huffine gave two twenty dollar bills, the serial numbers of which had been previously recorded, to his unidentified assistant who in turn exchanged through the rolled down car window that money for two rocks of crack cocaine. Huffine and the confidential assistant then drove to a near[1076]*1076by area to deliver the unused money and the material purchased to another officer to establish the chain of custody and to field test the material to determine whether it was cocaine.

The whole transaction was witnessed by other police officers, Detectives Bostic and Kelley, who were watching from a house on the street corner. Officers Lucker and Harris, ready to intervene if a buy or arrest went sour, sat in an unmarked car around the corner. The hope was to arrange another buy, but Bostic and Kelley reported that the suspected dealer2 got into a vehicle and was preparing to leave the area. He was allowed to do so because the officers did not wish to spoil the opportunity for other drug related arrests in the vicinity that evening.

Officers Lucker and Harris followed the suspect’s car, but then backed off to allow a marked police vehicle to actually make the stop. Detective Huffine then arrived at the scene to identify the driver as the one who made the sale. Huffine picked Kenney as the dealer from the four persons in the vehicle. Two of the others were not taken into custody; the third was arrested pursuant to an outstanding traffic court warrant. The serialized money was recovered from Kenney’s pants pocket and a vial containing more crack was found in the pocket of the jacket he wore. Kenney claimed at trial that the money came from one of the other persons in the car as payment for errands Kenney was beginning to run when stopped. Kenney also claimed that the jacket belonged to this other person and that Kenney put it on, after leaving Gay Street, because he was cold.

Kenney was initially charged with two counts of possession of a controlled substance. One of these counts was subsequently dropped and a count for dealing was added. Kenney’s motions to dismiss the dealing charge and to suppress the evidence gained as a result of the stop were denied and a jury trial was held. The jury returned a guilty verdict on both counts. The trial court vacated the verdict on Count I on the grounds that both counts were based on the same operative facts. (R. 65). Kenney was sentenced to ten years on the dealing charge.

ISSUE I: Prosecutorial Vindictiveness

Kenney claims that the prosecutor filed the count for dealing in response to a defense motion to suppress evidence obtained following the stop of Kenney’s vehicle. We address the trial court’s denial of the motion to suppress under Issue II. Kenney argues that the substitution of the dealing count for the possession charge was the product of prosecutorial vindictiveness. The prosecution responded, at the hearing in the trial court and in this appeal, that the dealing charge was added when defense counsel inadvertently alerted the prosecution to a previously unnoted police report which allegedly detailed the circumstances of Kenney’s arrest, particularly the details concerning Kenney’s having approached the undercover officer rather than vice versa. Those facts, the state argued, negate the evidentiary problems often associated with an entrapment defense with regard to the accused’s predisposition to commit the crime in question. See IC 35-41-3-9.

Kenney offers the Seventh Circuit’s 1987 opinion in United States v. Whaley for the proposition that in the pretrial setting it is violative of the due process clause to add charges in retaliation for the accused’s exercise of constitutional rights. 830 F.2d 1469. See also Coates v. State (1989), Ind., 534 N.E.2d 1087, 1090. Kenney argues from Whaley and associated precedents that his conviction for dealing in cocaine must be vacated because the January 3, 1989 information for dealing was filed solely in response to his December 12, 1988 motion to suppress. Kenney argues that no new evidence was uncovered during that period.

The decision in Whaley rests upon the holding of the Supreme Court in United [1077]*1077States v. Goodwin (1982), 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74. In Goodwin it was held that the addition of more serious charges following a state court defendant’s invocation of pre-trial procedures was not a scenario in which a reasonable likelihood of vindictiveness exists so as to warrant a presumption that the inclusion of such charge was retaliatory in nature and thereby in violation of due process rights as protected by the fourteenth amendment. The Goodwin court recognized that the initial charging decision “should not freeze future conduct” as a prosecutor “should remain free before trial to exercise the broad discretion entrusted to him....” Goodwin, supra, 457 U.S. at 383, 102 S.Ct. at 2493, 73 L.Ed.2d at 86. See also Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (unrealistic to assume that prosecutor will penalize or deter pretrial motions by filing additional charges).

Based upon Goodwin and prior opinions of the Seventh Circuit, the Whaley court ruled that:

[T]o establish a prima facie case of prosecutorial bad faith a defendant must ‘allege[] intentional purposeful discrimination and present[] facts sufficient to raise a reasonable doubt about the prosecutor’s purpose.... ’ Absent such a showing, the presumption of good faith ‘remains undisturbed.’

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Related

Bordenkircher v. Hayes
434 U.S. 357 (Supreme Court, 1978)
New York v. Belton
453 U.S. 454 (Supreme Court, 1981)
United States v. Goodwin
457 U.S. 368 (Supreme Court, 1982)
United States v. Jerry Whaley
830 F.2d 1469 (Seventh Circuit, 1987)
Hill v. State
442 N.E.2d 1049 (Indiana Supreme Court, 1982)
Russell v. State
519 N.E.2d 549 (Indiana Supreme Court, 1988)
Glover v. State
441 N.E.2d 1360 (Indiana Supreme Court, 1982)
Silva v. State
410 N.E.2d 1342 (Indiana Court of Appeals, 1980)
Coates v. State
534 N.E.2d 1087 (Indiana Supreme Court, 1989)
Callahan v. State
527 N.E.2d 1133 (Indiana Supreme Court, 1988)
Dishman v. State
525 N.E.2d 284 (Indiana Supreme Court, 1988)

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Bluebook (online)
549 N.E.2d 1074, 1990 Ind. App. LEXIS 143, 1990 WL 12700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenney-v-state-indctapp-1990.