Bergfeld v. State

• Decision Date: 15 December 1988
• Docket Number: No. 49S00-8607-CR-689,49S00-8607-CR-689
• Parties: Gregory L. BERGFELD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 486

531 N.E.2d 486

Gregory L. BERGFELD, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8607-CR-689.

Supreme Court of Indiana.

Dec. 15, 1988.

Sheila K. Zwickey, Rushville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Possession with Intent to Deliver Cocaine, a Class A felony, for which he received a sentence of thirty-five (35) years; Possession of Diazepam, a Class D felony, for which he received a sentence of four (4) years; and Carrying a Handgun Without a License, a Class A misdemeanor, for which he received a sentence of one (1) year, all sentences to run consecutively.

The facts are: On April 28, 1985, Officer Odle of the Indianapolis Police Department received a radio dispatch which sent him to a residence on Epler Avenue. At the residence, J.M. informed Odle that appellant and his codefendant, Robert Orth, abducted her from a local nightclub and took her to a motel on Post Road. In the motel room, she was held at gunpoint, tied up, injected with cocaine, and repeatedly raped by both men. After the men consumed drugs and passed out, J.M. escaped from the motel room and took a cab to the residence on Epler Avenue and called police.

Officer Maxey was sent to the motel to investigate the incident. The hotel clerk informed him that Orth had registered and paid for Room 117 on April 27. Several officers were placed in and around the motel to watch the room. At approximately 11:30 a.m., police asked the hotel clerk to call Room 117 and ask whether they planned to check out at noon or stay another day. Appellant told the clerk that he would come to the desk and pay for another day in a few minutes.

Shortly thereafter, police watched appellant leave the motel room, get in his car and quickly drive out of the parking lot. Police followed appellant and, driving directly behind him, turned on their flashing red lights. Appellant accelerated quickly and police were able to surround his vehicle and force him off the road. As appellant stepped out of his vehicle, police noticed a gun in his right rear pocket. They removed the gun from his pocket and transported him back to the motel.

Police then knocked on the door of Room 117 and identified themselves. Orth opened the door. Police entered and saw white powder and some scales on a table. Orth was arrested. Upon a warrantless search, police found narcotics "cutting" agents, a grinder, a sifter, plastic sandwich bags, small bottles, and other drug paraphernalia. A forensic chemist determined that the seized items were seven tablets of Diazepam and over ten grams of cocaine.

Appellant first argues the trial court erred in denying his motion to suppress certain evidence found in his motel room. He contends that there was no probable cause for his arrest and the warrantless search of the motel room violated his Fourth Amendment right of protection against unreasonable searches and seizures.

An arrest without a warrant is permissible if, at the time of the arrest, the arresting officer had probable cause to believe the defendant had committed a felony. Probable cause exists when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances which would warrant a man of reasonable caution to believe that the defendant committed the criminal act in question. Collins v. State (1987), Ind., 509 N.E.2d 827.

In the present case, the information supplied by the informant and appellant's attempted getaway were sufficient probable cause to justify his arrest.

A warrantless search is not illegal when police have probable cause to believe the search will produce evidence that a crime has been committed and are faced with exigent circumstances which render the procurement of the warrant impractical. Probable cause exists where the facts and circumstances with the knowledge of the officer making the search are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. Robles v. State (1987), Ind., 510 N.E.2d 660.

In appellant's case, police acted upon the information from an alleged rape victim that appellant and Orth had kidnaped her, injected her with cocaine, and had possessed and consumed cocaine in the motel room. They had probable cause to believe that an offense had been or was being committed. Because appellant and Orth still occupied the room in which the alleged offenses occurred, it was reasonable for them to believe that a search of the room would produce evidence of the crimes.

Further, it would have been impractical for police to delay the search until a warrant was issued. A postponed search could have resulted in the disappearance of appellant and the evidence with no means of tracing his whereabouts. We find that sufficient probable cause and exigent circumstances existed to justify the warrantless search of appellant's motel room.

The record shows that immediately after police entered appellant's motel room and detained Orth, they saw a white powdery substance, a scale, and a device used for smoking marijuana in plain view. Grocery bags on the bed contained narcotics and drug paraphernalia. Because police were lawfully in a place where they could view the property seized, the seizure of the evidence was proper under the plain view doctrine. Clark v. State (1986), Ind., 498 N.E.2d 918. The trial court did not err in denying appellant's motion to suppress.

Appellant argues that the evidence is insufficient to sustain his convictions of possession with intent to deliver cocaine and possession of diazepam. He asserts that there is no evidence that the drugs belonged to him, especially considering the fact that he had no drugs and only a small amount of money with him when he was arrested.

Appellant acknowledges that this Court will not reweigh the evidence or judge the credibility of the witnesses. Alfaro v. State (1985), Ind., 478 N.E.2d 670.

The State does not need to prove actual physical possession to establish an accused's possession of illegal drugs, but needs only to prove constructive possession. Constructive possession is the intent and capability to maintain dominion and control over the illegal drugs. Proof of a possessory interest in the premises in which the illegal drugs are found is adequate to show the capability to maintain dominion and control over the items in question. However, when possession of the premises is not exclusive, the inference of intent must be supported by additional circumstances pointing to an accused's knowledge of the nature of the controlled substances and their presence. Davenport v. State (1984), Ind., 464 N.E.2d 1302, cert. denied, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416.

Both the record and appellant's brief make it clear that he spent the night in the motel room, provided money for its rental and planned to spend another night there. These facts, coupled with appellant's attempt to escape from police, were sufficient to show he knew of the presence and nature of the drugs in the motel room. Id.

Appellant next argues that the trial court erred in allowing a police officer to testify as an expert about the usual way narcotics are packaged and sold. He contends that because no foundation was laid to qualify the witness as an expert, his objections to the admission of the testimony should have been sustained.

A police officer who discovered scales in the motel room testified that he had been a narcotics officer for over five years, that he had trained in both standard and advanced narcotics investigation in federal Drug Enforcement Administration Schools, and that he had made approximately three to four hundred arrests as a narcotics officer. He was then asked whether he had encountered the type of scales found in appellant's motel room. Over appellant's objection, he was allowed to testify that the scales were typically used to measure different types of controlled substances by weight or dosage units.

An expert witness is one who, due to his experience or education, has knowledge of a certain subject about which persons with no particular training are incapable of forming an accurate opinion. Wade v. State (1986), Ind., 490 N.E.2d 1097. The trial court has broad discretion in determining qualifications of experts and in admitting opinion evidence. Id.

We find that the officer's qualification as an expert was sufficiently established and there was no abuse of trial court discretion.

Appellant argues the trial court erroneously denied his motion for mistrial. He believes that because members of the jury observed him wearing handcuffs while his codefendant Orth remained unrestrained, the jury was left with the impression that he was more guilty than Orth. Appellant avers that the prejudice from this error is apparent because the jury found Orth to be guilty of the less serious Class D felony of possession.

A ruling on a motion for a mistrial is made within the trial court's discretion. The fact that a defendant has been seen by jurors while being transported in handcuffs is not a basis for reversal, absent a showing of actual harm. Jenkins v. State (1986), Ind., 492 N.E.2d 666.

During a brief hearing on this matter, appellant stated that he believed it was very likely that certain jurors saw him in handcuffs while being transported to the courtroom, but he could not attest to the fact that they saw him for certain.

Even if there was evidence that the jurors did in fact see him handcuffed, appellant has shown no prejudice because jurors would reasonably expect that anyone in police custody would be restrained, regardless of the nature of the charge against the accused. Id.; Malott v. State (1985), Ind., 485 N.E.2d 879. Because appellant has not established that jury members improperly saw him handcuffed or that he was harmed thereby, we find no error in the...