Allen v. State
| Decision Date | 05 May 2003 |
| Docket Number | No. 49A05-0208-CR-408.,49A05-0208-CR-408. |
| Citation | 787 N.E.2d 473 |
| Parties | William ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kimberly A. Jackson, Indianapolis, IN, for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, for Appellee.
William Allen appeals his convictions for dealing in marijuana, dealing in cocaine, and possession of cocaine with a firearm. Specifically, Allen argues that the trial court erred in excluding a statement of a police officer that was made prior to Allen's arrest as hearsay. In addition, Allen argues that the trial court abused its discretion in admitting into evidence Allen's admission to police that the drugs and a firearm found in the house were his. Allen also argues that the prosecutor committed misconduct by commenting on Allen's post-arrest silence during the State's closing arguments. Finally, Allen argues that the State presented insufficient evidence to establish that he knowingly possessed the drugs and firearm used to support his convictions.
Because the statement of the police officer was a statement of a party-opponent, we find that it did not constitute hearsay, but we find that its exclusion was harmless error because it was merely cumulative of other evidence presented to the jury. In addition, we find that Allen's admission to police was voluntary and was therefore properly admitted into evidence. Because the prosecutor made no comments concerning Allen's post-arrest silence, we find that there was no prosecutorial misconduct. Finally, because the drugs and firearm were found in Allen's residence, he attempted to hide from police, and he admitted that the drugs were his and that he was watching over the firearm, we find that there is sufficient evidence to support his convictions and affirm.
At approximately 7:30 p.m. on November 15, 2001, the Indianapolis Police Department served a search warrant at a house at 1616 Marlowe Avenue. Members of the SWAT Team first entered and secured the house before other police officers began searching the house. One person was detained outside the home, and six people were detained on the first floor of the house. Allen was asleep in an upstairs bedroom when the police arrived, and he ran to the attic in an attempt to hide from police. The police officers found Allen, brought him downstairs, and read him his Miranda rights along with everyone else detained in the house.
During a search of the home, police found a loaded handgun in the upstairs bedroom where Allen had been sleeping. Police officers also found another gun in the front room of the house and a yellow laundry bag in the dining room. The laundry bag contained marijuana and a Crown Royal bag, which in turn contained two large individually wrapped baggies of cocaine along with four smaller baggies filled with cocaine. In addition, the police found marijuana in a wastebasket in a downstairs bathroom, and they found a silver scale with marijuana residue on it on top of the stove in the kitchen. The police also found documents in the house establishing that Allen lived in the house. After Allen was read his Miranda rights, he told police that he was holding the gun that was found upstairs for a friend. When Officer Joseph Kraeszig confronted Allen with the drugs that were found in the house, Allen told the police, "It's mine, all mine." Tr. p. 51.
On November 16, 2001, the State charged Allen with Count I, Dealing in Cocaine as a Class A felony;1 Count II, Possession of Cocaine as a Class C felony; 2 Count III, Possession of Cocaine and a Firearm as a Class C felony;3 Count IV, Possession of a Handgun with an Obliterated Serial Number as a Class C felony;4 Dealing in Marijuana as a Class D felony;5 and Possession of Marijuana as a Class D felony.6 Following a trial, the jury found Allen guilty of all counts except for possession of a handgun with an obliterated serial number. At sentencing, the trial court merged Allen's conviction for possession of cocaine with the conviction for dealing in cocaine and Allen's conviction for possession of marijuana with the conviction for dealing in marijuana. The trial court then sentenced Allen to twenty years for dealing in cocaine with twenty years suspended and four years on probation, six years for possession of cocaine and a firearm with four years suspended, and a suspended sentence of eighteen months for dealing in marijuana. The trial court ordered that Allen serve all of the sentences concurrently with the executed portion on home detention. This appeal ensued.
Allen raises a number of issues on appeal. First, he argues that the trial court abused its discretion in excluding on hearsay grounds the statements made by a police officer prior to Allen's arrest because those statements were of a party-opponent. Second, Allen argues that the trial court abused it discretion in admitting Allen's admission to police into evidence because the admission was involuntary and thus inadmissible. Third, Allen argues that the prosecutor committed misconduct by commenting on Allen's post-arrest silence. Finally, Allen argues that the State presented insufficient evidence to support his convictions. We address each argument in turn.
Allen argues that the trial court erred in excluding a statement made by a police officer prior to Allen's arrest as hearsay testimony. Specifically, Allen argues that the police officer's statement was a statement of a party-opponent and therefore could not be hearsay. Typically rulings on admitting or excluding evidence are reviewed for an abuse of discretion. Hirsch v. State, 697 N.E.2d 37, 40 (Ind. 1998). However, a ruling is reviewed de novo when it turns on a misunderstanding of a rule of evidence, specifically the hearsay rule. Id. The Indiana Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c); City of Indianapolis v. Taylor, 707 N.E.2d 1047, 1055 (Ind.Ct.App.1999), trans. denied.
In this case, Allen challenges the trial court's decision to exclude evidence of statements made by police shortly before Allen admitted that the drugs and guns found in the house were his. During his testimony, Officer Kraeszig denied that he told or implied to Allen that if Allen did not admit that the guns and drugs were his then everybody in the house would be arrested. Tr. p. 88. However, during his case-in-chief, Allen presented the testimony of Patricia Schlarb, an individual who was detained in the house at the time of the police search. During Schlarb's testimony the following exchange occurred:
While there are a number of possible arguments Allen could have raised at trial for the admissibility of the police statement, Allen is now limited to the specific grounds argued to the trial court and cannot assert new bases for admissibility for the first time on appeal. Taylor v. State, 710 N.E.2d 921, 923 (Ind.1999). At trial, Allen argued that the police officer's statement was admissible because it was the statement of the party-opponent and thus not hearsay. A statement is not hearsay if the "statement is offered against a party and is (A) the party's own statement, in either an individual or representative capacity; or ... (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]" Ind. Evidence Rule 801(d)(2); City of Indianapolis v. Taylor, 707 N.E.2d at 1057.
While this Court has held that the statement of the arresting officer or another police officer would not be hearsay when it was used in a wrongful death case against two police officers and the City of Indianapolis because it was a statement by a party-opponent, we are unable to find any Indiana cases addressing the issue of whether a statement of a government employee in a criminal case constitutes a statement of a party-opponent. City of Indianapolis v. Taylor, 707 N.E.2d at 1057. However, this issue has been addressed by numerous federal jurisdictions with varying results. While federal authority is not binding, this Court may consult federal authority for guidance in interpreting Indiana Rules. Gerald v. Turnock Plumbing, Heating & Cooling, LLC, 768 N.E.2d 498, 503 (Ind.Ct.App.2002).
The United States Seventh Circuit Court of Appeals has refused to apply the federal equivalent to Indiana's party-opponent rule, Federal Rule of Evidence 801(D)(2), to government employees testifying in criminal trials. United States v. Prevatte, 16 F.3d 767, 779 n. 9 (7th Cir. 1994); United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.1979). In rejecting the rule's application the Seventh Circuit noted:
Prior to adoption of the Federal Rules of Evidence, admissions by government employees in criminal cases were viewed as outside the admissions exception to the hearsay rule. Because the agents of the...
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