Petition — Lee v. Indiana

Upreme Cort, OU.

FILED

80-397 | SEP 12 1980 |

| | MICHAEL RODAK, JR., CLERK |

—w

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

NO.

CHARLES LEE, JR.

THOMAS KNIGHT,

DAVE MARTIN,

VERNON CARTER,

LOUIS HOLLINGSWORTH,

Petitioners,

v.

STATE OF INDIANA,

Respondent.

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF INDIANA

PETITION FOR A WRIT OF CERTIORARI

JOHN D. CLOUSE

1004 Hulman Building

Evansville, IN 47708

Telephone: (812) 424-6671

Counsel for Petitioners

Unigraphic, Inc., 1401 N. Fares Ave., Evansville, Ind. 47711, Phone 424-3680

aie

THE QUESTIONS PRESENTED FOR REVIEW

Can the gambling laws of a state be enforced in a deli-

berately discriminatory manner based upon an unjustifiable

standard?

THE PARTIES TO THE PROCEEDING

These are all shown in the caption of the case.

2

TABLE OF CONTENTS

Page

The Questions Presented for Review ................. 1

The Parties to the Proceeding ................ces000- 1

POC COE uk cc cctisb santesasusteieeeee 2

Te OE ROI. oo ob. s'o 0 do's: k oe bbe 3

Reference to the Opinion below ................005. 4

Statement of the Grounds on which the

Jurisdiction of this Court is Invoked ............ 4

Constitutional Provisions and Statutes Involved ........ 4

Sentomment OF UP COND osc ccccccvcestecewesdcuuenal 6

Reasons Relied on for Allowance of the Writ .......... 9

CURIE nic ccccgeccecevesssbbesssenekeeee 14

Appendix A - Opinion and Judgment of the

infiene Court Of AMROUD- «.0.0.0860cevsndeunans 15

Appendix B - Order of the Indiana Court of

Appeals Denying Rehearing .................. 26

Appendix C - Order of the Indiana Supreme

Coust Denging TORU 6c doc ccccvadineveeaas 27

Appendix D - Excerpt from Testimony of

Alan Shuttle, Vice Squad Chief of the

Evansville, Indiana Police Department

on the Hearing on Petitioners’ Motion

PTE ees re re enue 28

*-

TABLE OF AUTHORITIES

Page

Cases:

Fairchild v. Schanke, 232 Ind. 480, 113 N.E.

ee acai oe CEOS bs oA wh ees 10

Lee, et al v. Indiana, 397 N.E.2d 1047 (Ind.

SE 55-66 ewok Dada e kh pans aes 4

United States yv. Alarik, 439 F.2d 1349 (8th

es EE a oh ek ts ke ee Lae eA ds a oere 9

Williams v. Illinois, 399 U.S. 235 (1970) ............. 13

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ....... 7,9,19

Miscellaneous:

Constitution of the United States, 14th Amendment .... 4

pe ee err 6

NE A OIE occ vc ce Vi cbse dbase eeelbes 5,6

Indiana Rules of Appellate Procedure, AP 11(B) ....... 4

po a ok oer ee errr Te ee re eee ee 4

4.

REFERENCE TO THE OPINION BELOW

The opinion of the Court of Appeals of Indiana,

reported at 397 N. E. 2d 1047, appears in Appendix A

hereto.

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THIS COURT IS INVOKED

The judgment of the Court of Appeals of Indiana was

entered on December 18, 1979. (In that court no separate

judgment is entered, the opinion contains it.)

A timely petition for rehearing was denied on January

22, 1980. (Appendix B)

A timely petition to transfer the cause to the Supreme

Court of Indiana was,denied on July 22, 1980. (Appendix C)

The Supreme Court of Indiana is the highest court in that

state having jurisdiction to review decisions of lower state

courts. (Indiana Rules of Appellate Procedure, Rule AP

11(B].)

This petition for a writ of certiorari will be filed within

sixty (60) days of the Indiana Supreme Court’s refusal to

review or “transfer” the decision herein. This Court’s juris-

diction is invoked under 28 U.S.C. $1257(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitution of the United States:

14th Amendment:

“* * * No state shall make or enforce any

law which shall abridge the privileges or immuni-

ties of the United States; nor shall any state

me

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal pro-

tection of the laws.”

The Indiana Code:

*35-45-5-3. Professional gambling. - A

person who knowingly or intentionally :

(1) Engages in pool-selling;

(2) Engages in bookmaking;

(3) Maintains, in a place accessible to the

public, slot machines, one-ball machines or

variants thereof, pinball machines that award

anything other than an immediate and un-

recorded right of replay, roulette wheels, dice

tables, or money or merchandise pushcards,

punchboards, jars, or spindles;

(4) Conducts lotteries, gift enterprises, or

policy or numbers games, or sells chances there-

in;

| (5) Conducts any banking or percentage

games played with cards, dice or counters,

or accepts any fixed share of the stakes there-

in; or

(6) Accepts, or offers to accept, for profit,

money or other property risked in gambling;

commits professional gambling, a class D felony.

{IC 35-45-5-3, as added by Acts 1976, P.L. 148,

85, p. 718; 1977, P.L. 340, 882, p. 1533.]”

-6-

STATEMENT OF THE CASE

The action was instituted by the filing of a multiple

count indictment against the petitioners and another (one

Mike Runau) on the 26th day of July, 1978. (R. 14. Note:

references to the Record of the Proceedings on file in the

Court of Appeals of Indiana will be shown thus “R. a

Included in this indictment were counts charging conspiracy

to commit professional gambling. (R. 24-26)

On August 10, 1978 petitioners filed a motion to

dismiss, raising the federal question here involved. The

motion averred, inter alia:

“1. The information is defective pursuant to I.C.

35-3.1-1-6 in that the statute defining the crime charged

is unconstitutional or otherwise invalid.

‘MEMORANDUM

The statute defining the crime, I.C. 35-45-5-3, both

upon its face and its application herein, violates the following

constitutional provisions:

The Constitution of the United States, the

Fourteenth Amendment, all clauses thereof.

“ee

**3. That said statute under which these Defendants

are charged, and its statutory predecessor, the prior act

defining such offense, have been applied with an “unequal

A.

hand” (see Yick Wo v. Hopkins, 1886, 118 U.S. 556). Defen-

dants aver that such acts have never been applied to religious

organizations nor veterans’ organizations, who openly violate

the terms of the present act and its predecessor act. * * *”

(R. 52-57)

Petitioners introduced evidence in support of this

motion. It established that Catholic Churches, veterans’

organizations and private clubs of Evansville, Indiana, have

for a number of years openly violated the gambling laws

of the State of Indiana with complete impunity. The local

police and prosecutor have known about this for a number

of years, have done nothing about it and do not intend to.

More specifically, the parties stipulated that bingo

was a game of chance. (R. 341) Nine Catholic priests

testified that their churches had conducted regular bingo

games for a number of years. (R. 340, 343, 345, 347, 351,

353, 355, 357, 358) Some had conducted other gambling

enterprises. (R. 351, 359) The gambling was conducted

openly, (R. 342, 344, 346, 348, 352, 354, 355, 357) and

at least one bingo was advertised. (R. 342) No one had

ever been prosecuted or threatened with prosecution because

of this. (R. 341, 343, 346, 348, 352, 354, 355, 3°7)

Private clubs of Evansville also violate the gambling

laws of the state with impunity: The Evansville Country

Club sponsors gambling, including dice games and black-

jack. (R. 335-6, 338) The Evansville Athletic Club has

bingo games. (R. 360) Germania Mannerchor has bingo.

(R. 363) The Eagles’ Country Club has raffles and slot

machines. (R. 365, 366-8) The Haymakers have poker

games and ticket jars. (R. 370) The Shrine has a lottery.

(R. 381) All of these games are conducted openly. (R.

360, 363, 372, 382) No one is ever prosecuted for this.

(R. 338, 360, 363, 368, 372, 382)

Veterans’ organizations are also immune: The V.F.W.

has an open bingo, (R. 373-4) and the American Legion had

slot machines and was not prosecuted. (R. 390-391)

The present prosecutor and three of his predecessors

>

testified that they knew about this gambling, (R. 333, 350,

376, 392) did not prosecute, (R. 332, 350, 376, 394) and

will not: (R. 394)

Alan Shuttle is the present head of the vice squad of

the Evansville Police Department. He has been on the police

force twenty-six years, on the vice squad for twenty-one

and one-half years and been in charge of it for ten years.

(R. 383) He has known about church, veterans’ and private

club gambling for twenty-six years. (R. 384) He added that

the Roman Catholic Diocese of Evansville sponsors a con-

tinuing lottery. (R. 384) None of these offenders has ever

been prosecuted. (R. 386-8) Since some of officer Shuttle’s

testimony is so telling, it is included as Appendix D.

The motion to dismiss was overruled. (R.61) |

Trial to a jury was thereafter had. The facts adduced

at the trial are summarized in the opinion of the Indiana

Court of Appeals. (Appendix A, infra) The jury found

petitioners guilty of two counts (V and VI) of conspiracy

to commit the felony of professional gambling. (R. 67, 78,

79) Thereafter, the court imposed judgment and sentence

upon petitioners: Lee, Knight, Carter and Hollingsworth

were sentenced to two, and Martin one, years imprisonment.

(R. 105-106A)

The petitioners filed a motion to correct errors, the

Indiana prerequisite to an appeal, which again assigned as

error the federal question here urged:

“1. Uncorrected errors of law occurring and properly

raised in the proceedings prior to the trial in this, to-wit:

(a) The Court erred in overruling and denying the

defendant’s motion to dismiss.

Said motion should have been sustained for the reasons

stated therein, which reasons are here adopted by reference,

and for the reason that the evidence introduced in support

of said motion showed that the charges filed against the

defendant were the result of unconstitutionally selective

enforcement of the gambling laws of Indiana in violation of

the Fourteenth Amendment to the Constitution of the

-9-

United States.” (R. 1-2)

This motion was summarily overruled. (R. 117A)

Petitioners appealed to the Indiana Court of Appeals,

arguing the same federal question in their respective briefs.

(Appellant Hollingsworth’s brief, pp. 17-34; the brief of

the other petitioners incorporated Hollingsworth’s argument

by reference, their appellants’ brief, pp. 16-17) The Indiana

Court of Appeals affirmed the petitioners’ conviction after

ordering a correction of their sentence.

Petitioners filed petitions for rehearing which were de-

nied. (Appendix B) They petitioned the Indiana Supreme

Court to review or “transfer” the cause and those petitions

were denied. (Appendix C)

REASONS RELIED ON

FOR ALLOWANCE OF THE WRIT

A state court of last resort has decided a federal ques-

tion in a way in conflict with a decision of this Court.

Yick Wo v. Hopkins, 118 U.S. 356 (1886) is the

seminal case in the area of unconstitutional application of a

law and petitioners rely heavily upon it. However, peti-

tioners believe that a Circuit Court case, United States

vy. Alarik, 439 F.2d 1349 (8th Cir. 1971), correctly sum-

marizes the current state of the law as pronounced by this

Court:

“ * * * 4 prosecutor may exercise discretion

in deciding who should be prosecuted as long

as he does not deliberately discriminate between

persons in similar circumstances based upon

an unjustifiable standard such as race, religion,

or other arbitrary classification. Oyler v. Boyles,

Warden, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.

2d 446 (1961); Yick Wo v. Hopkins, 118 U.S.

356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); * * *”

(Footnote omitted)

-10-

Thus, two questions are posed for petitioners’ answer;

the first: Was there deliberate discrimination? There is

absolutely no doubt that there was. The record fully sup-

ports an affirmative answer to the first question. (See state-

ment of the case and Appendix D) Petitioners will not

belabor that point further, and turn to the second question:

Was the discrimination based upon an unjustifiable standard?

Absent a clear precedent from this Court that question

is likely to be argued on a “yes it was’, “no it wasn’t”

basis. However, the answer is supplied by an unlikely source

- - the Supreme Court of Indiana in the case of Fairchild

v. Schanke , 232 Ind. 480, 113 N.E.2d 159 (1953).

Fairchild is an interesting case and bears reading in

connection with petitioners’ claims of discriminatory en-

forcement. In that case, Schanke, an individual, brought

an injunction action against Frank Fairchild, then prosecutor

of Marion County, Indiana. Schanke alleged that the existing

gambling statutes violated the equal privileges and immunities

provision of Article 1, 823 of the Indiana Constitution in

that they expressly excluded “bona fide religious, patriotic,

charitable, or fraternal clubs.” Upon the granting of a

temporary injunction, Fairchild appealed.

The Indiana Supreme Court upheld the lower court

decision, holding that the distinction made by the legislature

between “bona fide religious, patriotic, charitable, or frater-

nal clubs” and all others “does not rest upon a reasonable

basis and is arbitrary and unreasonable.” Jd. at 493, 113

N.E.2d 159

In its decision, the Court made the following obser-

vations, apropos: to evidence introduced at the hearing on

petitioners’ motion:

“Is there any substantial distinction between

a bona fide religious, patriotic, charitable or

fraternal club seeking and receiving profit from

the conduct of a lottery, the operation of slot

machines, or any other gambling device, and an

-11-

individual, a social club, or professional gambler

who operates a similar lottery enterprise, slot

machines or other gambling devices?

We can see none. Nor has any valid dis-

tinction been pointed out to us by appellants.

Appellants attempt to justify the exclusion

on the ground that the consequences to society

are not the same if the profit from activities

which constitute gambling goes to buy new

athletic equipment for a Sunday School, as if

such profits went to organized gambling. They

further suggest that the threat or danger to

society is different from that posed by pvo-

fessional gambling. This argument was ably

answered by the Supreme Court of New Mexico

in Harriman Institute, etc. v. Carrie Tingley C.C.

Hospital (1938), 43 N.M. 1, 84 P.2d 1088,

when, at page 1091, it said:

*. . . the gambling spirit feeds

itself with as much relish upon a

charity lottery as upon any other

kind. If the average person be

consumed with a desire to take a

chance and get something for

nothing, it matters not to him

whether the promoter makes a

profit or that the profit goes to

charity. Indeed, if it does to do

charity, his participation wears a

cloak of picty otherwise denied

it. He thus may be persuaded to

purchase tickets oftener and in

larger volume because operated in

the name of charity or religion.

-12-

The point we seek to make is that

widespread participation in a chari-

ty lottery is just as baneful in its

effect upon the public as wide-

spread participation in any other

xina of lottery.’

The reasoning employed in the above case

applies with equal force in the case at bar.

“Does the classification here rest upon a

reasonable basis?

The classification attempted in §2 (8) of the

act clearly does not rest upon a reasonable basis

and is arbitrary and unreasonable. The act does

not affect all persons similarly situated. It is

class legislation in the highest degree and con-

travenes §23 of Art. 1 of the Constitution of

Indiana.” Jd. at 489-493, 113 N.E.2d 159.

Consequences of a Favorable Decision

Petitioners are compelled to address the issue of what

a ruling in their favor would mean. Reversing petitioners’

conviction would give the Indiana local prosecutor two

options -- he could enforce the gambling laws uniformly

against individuals and organizations alike, or he could not

enforce the laws against anyone. Reversing petitioners’

convictions must result in a change of policy, as similar

grounds for dismissal will undoubtedly be raised in sub-

sequent gambling prosecutions.

it.

No one would like to see the second approach taken

- - to do so would be a dereliction of duty in the highest

degree. But is the first option equally unfeasible? Would

even-handed and neutral enforcement bring mobs of little

old ladies to the streets in a recurrence of the “bingo riot”

of the 1940’s?

It is submitted that such a disastrous scenerio need

not occur. Full scale raids on religious and social clubs

need not take place in order to eliminate organization spon-

sored gambling. As Appendix D demonstrates, members

of the Evansville police and the local prosecutor’s offices

keep in close communication with such groups, occasio-

nally sending them word to “clean up their act.” A similar

announcement that such activities will heretofore be viewed

as violations of the law, subject to prosecution, would result

in the vast majority of these games being discontinued. Few

priests or club presidents will be willing to risk prosecution

and the publicity it would bring.

If people, then, became unaccustomed to gambling

at these establishments, perhaps it would be possible to

obtain convictions for those who insist on violating the law.

At least the gambling laws would be enforced as written

and as intended by the Federal Constitution.

There is no doubt that a ruling in favor of petitioners

would cause difficulties for the law enforcement officials

in Vanderburgh County. However, as stated by this Court

in Williams v. Illinois:

“We are not unaware that today’s holding

may place a further burden on States in ad-

ministering criminal justice. Perhaps a fairer and

more accurate statement would be that new

cases expose old infirmaties which apathy or

absence of challenge has permitted to stand.

But the constitutional imperitives of the Equal

Protection Clause must have priority over the

comfortable convenience of the status quo.”

399 U.S. 235 at 245 (1970)

-14-

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals

of Indiana.

Respectfully submitted,

JOHN D. CLOUSE

1004 Hulman Building

Evansville, IN 47708

Telephone: (812) 424-6671

Counsel for Petitioners

-15-

APPENDIX A

OPINION AND JUDGMENT OF THE

INDIANA COURT OF APPEALS

FOR

PUBLICATION

Attorneys for Appellants: Attorneys for Appellee:

JACK N. VanSTONE THEODORE L. SENDAK

THOMAS G. KROCHTA Attorney General of Indiana

103 N.W. Tenth

Evansville, indiana 47708 RICHARD ALBERT ALFORD

(Attorneys for Charles Lee, Jr., Deputy Attorney General

Thomas Knight, Dave Martin,

Vernon Carter, Mike Runau) Office of the Attorney General

219 State House

-JOHN D. CLOUSE Indianapolis, Indiana 46204

MICHAEL C, KEATING

1004 Hulman Building

Evansville, Indiana 47708

(Attorneys for Louis Hollingsworth)

-16-

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

CHARLES LEE, JR.,

STATE OF INDIANA,

)

bape noma ) Marjo a

DAVE MARTIN, E20 52.

VERNON CARTER, DEC 18 1979

LOUIS HOLLINGSWORTH, ) Rcanyrdrcahnonet

MIKE RUNAU, ) Indiana Supreme and

) Court of Appeals

Defendants-Appellants, )

)

-v- ) NO. 1-579 A 133

)

)

)

)

Appellee-Plaintiff.

APPEAL FROM THE VANDERBURGH CIRCUIT COURT

The Honorable William H. Miller, Judge

Neal, J.

Defendants-appellants Dave Martin (Martin), Thomas

Knight (Knight), Vernon Carter (Carter), Charles Lee, Jr.

(Lee), Louis Hollingsworth (Hollingsworth), and Mike Runau

(Runau) were convicted of conspiracy to commit professio-

nal gambling,

of?

They raise the following issues for our review:

(1) Whether the trial court erred in overruling the

defendants’ motion to dismiss.

(2) Whether the trial court erred in denying the

defendants’ motion for separate trials.

(3) Whether the trial court erred in admitting evi-

dence relating to the charges without limitation

as to the time of the occurrences.

(4) Whether there was sufficient evidence intro-

duced at trial to sustain the verdict of the jury.

(5) Whether the trial court erred in denying defen-

dants’ motion to correct judgment.

We affirm.

The evidence most favorable to the State discloses

that Knight operated a tavern in Evansville by the name of

“Knight’s Nite Spot.” In a room in the rear of the same

building gambling operations were conducted. The room

was equipped with a modified pool table upon which dice

was played. A blackjack table, with high stools around it

upon which the customers could and did sit, was provided.

Food, beer, and coffee were served without charge to custo-

mers and persons in attendance. Admittance was gained

to the room by pressing a buzzer, whereupon a door atten-

dant would then scrutinize the person seeking admittance

through a peephole before allowing him to proceed. One

doorkeeper, employed by Knight, testified that it was his

duty to attend the door, to keep out undesirables, and to

watch for the police. Blackjack and dice were played for

money, some customers winning or losing as much as $500

in a single evening. Customers played the house, not each

-18-

other. Payroll checks were cashed. Chips, in varying deno-

minations from one dollar to twenty-five dollars, were sold

to customers by attendants, and thereafter cashed, if any

remained, at the close of play.

All of the defendants participated in one way or the

other in the management and operations of the enterprise.

Their duties varied, depending upon who was available, or

working, and according to the exigency of the situation.

They sold and cashed chips, were stickmen, attended the

door, dealt cards, or acted in a supervisory capacity.

The room was maintained for gaming purposes for

as much as two years continuously in Knight’s Nite Spot,

terminating there sometime in 1977. Thereafter, it was

reestablished in what was described as the antique shop

at 1021 Kentucky Avenue, just down the alley from Knight’s

Nite Spot. The new location, owned by Hollingsworth, was

an 6id residential building. There, the gaming operation

was renewed in the same manner as before, with all defen-

dants participating as before. Operations, so far as the record

discloses, terminated on January 13 or 14, 1978, when

police officers began surveillance of the house.

Upon discovery of the police activity, the doorman

alerted Knight, whereupon the games were stopped, and

the equipment hidden. Some of the customers and some

defendants stayed ‘in the house the remainder of the night

and into the next day, apparently to avoid detection. Police

surveillance detected nine cars parked outside, and further

detected numerous people entering and leaving the suspected

premises.

Defendants argue that the trial court erred in over-

ruling their motion to dismiss which stated that their pro-

secution was a result of selective and discriminatory enforce-

ment of the gambling laws of Indiana. The gist of the defen-

-19-

dants’ argument is that while gambling laws were enforced

against them, religious, social, and veterans organizations

were allowed to conduct gambling operations without

prosecution. Citing Yick Wo v. Hopkins, (1886) 118 US.

356, 6 S.Ct. 1064, 30 L.Ed. 220, they argue that they were

denied equal protection of the law as guaranteed by the

Fourteenth Amendment to the Constitution of the United

States and Articel 1, § 23 of the Constitution of Indiana.

Yick Wo is distinguishable from the case at bar in that it

dealt with discriminatory enforcement of a city ordinance

against a readily identifiable class, but the defendants before

us are not part of a particular group which was singled out

for prosecution.

In Highland Sales Corp. v. Vance, (1962) 244 Ind.

20, 186 N.E.2d 682, our Supreme Court dealt with an

action by a department store and its employees who sought

to enjoin the enforcement of a law which prohibited the

operation of the store on Sunday. The appellants claimed

that they were denied equal protection since other businesses

such as drug stores, gasoline stations, and restaurants were

allowed to operate on Sundays. The court stated that the

failure to prosecute some who violate the law does not

excuse violations by others, nor should it bar their prosecu-

tion. Also, there was no personal animosity which supported

the discrimination argument.

Noting the judiciary’s role in relation to a prosecuting

attorney’s discretionary power, the court said, at 889:

“We do not minimize the duty of the pro-

secuting attorney to exercise the power of his

office fairly and in good faith. However, in

order to warrant judicial interference with the

office of the prosecuting attorney because of

either nonfeasance or malfeasance, it must be

made to appear from the facts alleged that such

misconduct consists of a grc2s and intentional

failure or refusal to enforce the law in some

-20-

major area or that such misconduct is act-

ually the product of bad faith or evil design.”

(Emphasis added.)

In light of the heavy case load facing a prosecuting attorney,

it is clear that the failure to prosecute charitable organiza-

tions in no way establishes that the defendants were denied

equal protection. The State showed that there was a rea-

sonable basis for the way the gambling laws were enforced

Hollingsworth and Runau allege that the trial court

erred in denying their motions for separate trials pursuant

to IND. CODE 35-3.1-1-11 (Supp. 1979) which were filed

on the morning of the trial. The statute reads as follows:

“‘(a) Whenever two (2) or more offenses have

been joined for trial in the same indictment or

information solely on the ground that they are

of the same or similar character, the defendant

shall have a right to a severance of the offenses.

In all other cases the court, upon motion of the

defendant or the prosecutor, shall grant a

severance of offenses whenever the court deter-

mines that severance is appropriate to promote

a fair determination of the defendant’s guilt or

innocence of each offense with a view to the

number of offenses charged, the complexity of

the evidence to be offered, and whether the

trier of fact will be able to distinguish the

evidence and apply the law intelligently as to

each offense.

(b) Whenever two (2) or more defendants

have been joined for trial in the same indictment

-21-

or information and one (1) or more defendants

move for a separate trial because another defen-

dant has made an out-of-court statement which

makes reference to the moving defendant but

is not admissible as evidence against him, the

court shall require the prosecutor to elect either:

(1) a joint trial at which the statement is

not admitted into evidence;

(2) a joint trial at which the statement is

admitted into evidence only after all references

to the moving defendant have been effectively

deleted; or

(3) granting the moving defendant a separate

trial.

In all other cases, upon motion of the defendant

or the prosecutor, the court shall order a se-

parate trial of defendants whenever the court

determines that a separate trial is necessary to

protect a defendant’s right to a speedy trial or

is appropriate to promote a fair determination

of the guilt or innocence of a defendant.

(c) When such information would assist

the court in ruling on a motion for a separate

trial, the court may order the prosecutor to

disclose to the court in camera any statements

made by the defendants whicn the prosecutor

intends to introduce in evidence at the trial.”

(Emphasis added.)

Defendants argue that part (a) gives them the right for

separate trials. However, part (a) deals with severance of

offenses, not separate trials. Defendants did not ask for

2>

severance of offenses. The statutory language emphasized

above is the relevant language here, and it states that the

granting of separate trials is at the discretion of the trial

court. In a denial of a motio:: for separate trials, there

is reversible error only when there is a clear showing that

the trial court abused its discretion. McFarland v. State,

(1977) Ind. App., 359 N.E.2d 267.

When a pretrial motion for separate trials is over-

ruled any error is deemed waived by failure to renew the

motion before or at the close of all the evidence. IND.

CODE 35-3.1-1-12(b). We find no indication that Hollings-

worth and Runau renewed the motion, and thus, they

waived their right to separate trials.

Defendants argue next that the trial court erred by

admitting testimony that went beyond the time frame of

the statute of limitations. Defense counsel objected to testi-

mony by L. P. Dallas and Sidney Gynn concerning the times

when they participated in gambling activities. In both

instances, the record shows that immediately after the

objection was overruled, the prosecution pinpointed the

time in question which was within the statute of limitations.

IV.

The sufficiency of the evidence is also challenged by

the defendants. When we review the sufficiency of the

evidence, we consider only that evidence of probative value

most favorable to the State, together with reasonable in-

ferences which may be drawn therefrom. We will not disturb

a verdict if the evidence and inferences would permit the trier

of fact fo find the existence of the elements of the crime

beyond a reasonable doubt. Diggs v. State, (1977) Ind.,

-2%

364 N.E.2d 1176.

In Duling v. State, (1976) Ind. App., 354 N.E.2d

286, Judge Lowdermilk noted the factors which constitute

a conspiracy, at 289:

“In order to be a conspiracy there must be

an intelligent and deliberate agreement to com-

mit the offense charged. It is sufficient if the

minds of the parties meet understandingly to

bring about an intelligent and deliberate agree-

ment to do the acts and commit the offense,

though the agreement is not manifest by any

formal words. Concurrence of sentiment and

co-operative conduct in the unlawful and crimi-

nal enterprise are the essential ingredients of

criminal conspiracy. There must be an agree-

ment and there must be evidence to prove the

agreement directly, ro such a state of facts

that an agreement may be legally inferred.

Conspiracies cannot be established by a mere

suspicion. Evidence of mere relationship of

association between the parties does not show

a conspiracy.” (Citation omitted.)

He also said that an agreement need not be directly proven,

but it may be inferred from other facts.

_ The conspiracy statute, IND. CODE 35-41-5-2, reads,

in pertinent part:

“(a) A person conspires to vommit a felony

when, with intent to commit the felony, he

agrees with another person to commit the

felony....

(b) The state must allege and prove that

either the person or the persons with whom he

agreed performed an overt act in furtherance of

the agreement.”

IND. CODE 35-45-5-3 (Supp. 1978), the Indiana pro-

fessional gambling statute reads as follows:

“A person who knowingly or intentionally:

(1) engages in pool-selling;

(2) engages in bookmaking;

(3) maintains, in a place accessible to the e

public, slot machines, one-ball machines or

variants thereof, pinball machines that award

anything other than an immediate and un-

recorded right of replay, roulette wheels, dice

tables, or money or merchandise pushcards,

punchboards, jars, or spindles;

(4) conducts lotteries, gift enterprises, or

policy or numbers games, or sells chances there-

im,

(5) conducts any banking or percentage

games played with cards, dice, or counters, or

accepts any fixed share of the stakes therein; or

(6) accepts, or offers to accept, for profit,

money or other property risked in gambling;

commits professional gambling, a class D felony.”

Testimony of the State’s witnesses at trial showed that

the defendants worked together in conducting the gambling

operation by selling and cashing chips, working as stickmen

in the dice game, or dealing blackjack. From this testimony

the jury could reasonably infer that the intent, agreement,

and overt act required by IND. CODE 35-41-5-2 took place

and were supported by sufficient evidence.

25-

V.

Defendants also contend that the trial court erred by

denying the defendants’ motion to correct judgment in which

they argued that the jury’s verdict was inconsistent. Defen-

dants were found guiity of the conspiracy charges, but the

jury failed to return a verdict regarding the substantive

offenses which were charged.

In providing a conspiracy, it is not necessary to prove

that the object of the conspiracy has been carried out. Bates

v. State, (1977) Ind., 366 N.E.2d 659. Once the conspiracy

has been established, we need not address the substantive

offense. In Bates, supra, there was evidence tending to

show murder and evidence tending to show conspiracy to

commit murder. The defendant was convicted upon the

conspiracy county. The court held that under the standard

of review such a verdict is not objectionable.

One matter remains though not raised in the briefs,

that of the sentencing. Three defendants, Knight, Hollings-

worth, and Carter, were each convicted on Count V and

Count VI of the indictment. The imposed sentence was

one general sentence to each defendant, and the trial court

did not designate whether the sentence was imposed on

Count V or Count VI. The trial court is directed to correct

the sentence and sentence and/or dispose of each count

separately. For the reasons stated above the decision of

the trial court must be affirmed upon correction of the

sentencing as directed.

Affirmed and remanded for correction of sentence.

LOWDERMILK, P. J. and ROBERTSON, J. CONCUR.

-26-

APPENDIX B

ORDER OF THE INDIANA COURT OF APPEALS

DENYING REHEARING

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

CHARLES LEE, JR., et. al.

Defendants-Appellants

vs. NO. 1-579 A 133

STATE OF INDIANA

Appellee-Plaintiff

Nee Ne Ne ee ee ee”

Appellant Louis Hollingsworth Petition for Rehearing Denied.

Buchanan, C. J.

Appellants Charles Lee, Jr., Thomas Knight, David Martin,

Vernon Carter and Mike Runau Petition for Rehearing

Denied.

Buchanan, C. J. (sic)

January 22, 1980

OF

APPENDIX C

ORDER OF THE INDIANA SUPREME COURT

DENYING TRANSFER

IN THE

SUPREME COURT OF INDIANA

CHARLES LEE, JR., et. al.

Defendants-Appellants

vs. NO. 1-579 A 133

STATE OF INDIANA

Appellee-Plaintiff

Nee Ne Ne ee ee Se

Appellant, Louis Hollingsworth’s, Petition to Transfer is Denied.

Given, C. J. All Justices Concur.

Appellant, Lee, Knight, Martin, Carter and Runau, Petition to

Transfer is Denied.

Given, C. J. All Justices Concur. (sic)

July 22, 1980

-28-

APPENDIX D

Excerpt from testimony of Alan Shuttle, vice squad

chief of the Evansville, Indiana Police Department on the

hearing on petitioner’s motion to dismiss.

“Q.

Can you tell why you have not, that is ask (sic)

for the prosecution of any religious, veterans or

private organization engaged in gambling?

Well, with every chief and probably every Pro-

secutor we’ve had all the years I’ve been here,

I’ve discussed it with them. And after a dis-

cussion, we always felt like if we didn’t get too

many complaints on them or anything, we just

didn’t get too worried about them; and I’ve had

very few .complaints over the years on clubs,

churches.

And in other words then as I understand your

testimony, during your twenty-one years as

tenure on -- during your twenty-one years on

the vice squad you have met with the respective

chiefs of police and the prosecuting attorneys

through the years, and you’ve all agreed that you

would not prosecute religious organizations,

veterans’ organizations, and private clubs for any

gambling activities?

Well, no, not exactly that way unless we got

repeated complaints, then we probably would

have took some action, which we never did get

repeated complaints. We got a complaint on

somebody why we talked to them about it, and

usually that’s the last we ever heard of it, but if

it would have kept coming back to us why I

believe somebody probably would have got

prosecuted.

-29-

Okay, then if I understand your position is that

again, you during your tenure on the vice squad,

that you and the chief of police and the respec-

tive Prosecutors would agree that you would not

prosecute any religious, veterans, or private

organizations for gambling unless you got too

many complaints would that be correct?

That’s about right.

And when you got too many complaints, you

would go and give them a talking to?

Well, they usually got talked to on the first

complaint.

And what kind of talks were they?

Well, we have an understanding with the Council

of Clubs that we have a committee of three mem-

bers from the Council of Clubs, that way I can

always reach somebody if we do get a complaint.

And that’s usually my first step if I get a com-

plaint on a club, I will contact one of those mem-

bers and explain to them what we have and tell

them I don’t want to hear anymore about it, if

I do, then I will be out; and I never had to go

back out.

Okay, now what is the Council of Clubs, Sergeant

Shuttle?

It’s a sort of a governing body I suppose with all

the clubs in it or most of the clubs, I won’t say

all of them, most of the clubs probably in Van-

derburgh County. I don’t really know.

0 > © >

-30-

That is that would not be -- they would have

no jurisdiction over a religious club for instance?

I don’t really know. I don’t think so.

Or a veterans’ club?

Yes, I believe they do over a veterans’ club.

And then what kind of complaints are you

talking about, does someone complain that they

were gambling?

Somebody called in and complained that their

husband was gambling at a club or somebody

had lost some money there or somebody didn’t

get paid far winning or something like that why

they would complain to me, and then I would

contact - -.

Well, what would you tell the club then to do

or not do after you went to them?

I would just tell them to satisfy the complaint or

stop it or whatever it took. I just told them I

didn’t want to hear anymore about it, if I got

anymore complaints, I would be out.

And you did this a number of times?

Oh, yes.

In other words if some wife felt her husband was

blowing all his money at the VFW or someone

felt the game was crooked you’d go and tell

them, that particular club, that you didn’t want

to hear anymore about it?

$i.

That’s right.

After any of these talks, did you ever ask that

any of these clubs be prosecuted?

No, I don’t believe so.

So, in all your twenty-one years none of these

particular types of clubs which you talked about

veterans, private, religious, have been prosecuted

for gambling law violations?

Not to my knowledge. I don’t believe there has.”

(Direct examination on hearing on motion to

dismiss, R. 385-388)