Berry v. State, 82A01-9012-CR-480

• Decision Date: 18 July 1991
• Docket Number: No. 82A01-9012-CR-480,82A01-9012-CR-480
• Citation: 574 N.E.2d 960
• Parties: Leonard BERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 960

574 N.E.2d 960

Leonard BERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9012-CR-480.

Court of Appeals of Indiana,

First District.

July 18, 1991.

Rehearing Denied Sept. 4, 1991.

R. Mark Inman, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Leonard Berry (Berry) appeals from a conviction of four counts: Dealing in a Schedule II Narcotic Substance, ¹ a Class A felony, Possession of Cocaine, ² a Class D felony, Operating a Motor Vehicle While Intoxicated, ³ a Class A misdemeanor, and Driving While License Suspended, ⁴ a Class A misdemeanor. We affirm.

ISSUES

We restate the issues on appeal as:

1. Was the trial court correct in not questioning the jurors regarding the reason they desired to hear a replay of a witness' testimony during their deliberations?

2. Was the evidence on the intent to deliver sufficient to sustain a conviction?

3. Was the stop and ensuing search of Berry lawful, thus making any evidence thereby obtained admissible and justifying the trial court's denial of Berry's motion to suppress physical evidence?

FACTS

On July 20, 1989, at approximately 11:45 p.m., Evansville Police Officers Patrick Bradford and Andrew Woods, were on a routine patrol. As they drove along Cross Street, they observed a Nissan vehicle, which had been parked on the wrong side of the street, pull out and continue on the wrong side of the street toward their patrol car. The officers stopped and backed their car into a driveway to allow the Nissan to pass, in order to make an investigative stop to question the Nissan's driver, since he had committed a traffic violation by driving on the wrong side of the street.

The Nissan, however, pulled into the driveway beside the officers' car and to a parking area. After some maneuvering, the two cars ended up on Cross Street, with the Nissan positioned behind the police car. The officers approached the Nissan and observed that Berry was the driver and sole occupant.

The officers asked Berry for identification, but he was unable to produce a driver's license. The officers asked Berry to exit his vehicle and accompany them back to the patrol car, so that the officers could run a check on Berry's driving status. Prior to placing Berry in the patrol car, Officer Woods conducted a pat-down search which revealed a bulge in Berry's shirt pocket. A motion to suppress evidence of the pat-down search was granted, since the trial court determined that the pat-down search was unlawful. Berry, without handcuffs, was placed in the patrol car's rear passenger-side seat.

After Berry was placed in the patrol car, he gave Officer Woods permission to search the Nissan for the car's registration. Meanwhile, Berry told Officer Bradford that his driver's license was suspended, and Officer Bradford confirmed this through a check on Berry's driving status. Berry appeared intoxicated but refused a blood or breathalyzer test offered by Officer Woods.

During his search of Berry's car, Officer Woods found what he believed to be a smoked marijuana cigarette in the car's ashtray. As Officer Woods returned to the patrol car, he saw Berry stick his hand out of the patrol car's rear window, and drop something on the ground.

As he returned to the patrol car, Officer Woods saw a bag of white powder by the car, underneath the rear passenger door. A few inches under the patrol car, he discovered another bag of white powder, and a clear plastic bag containing two separate bags filled with orange pills.

Officer Woods retrieved the bags and gave them to Officer Bradford. The bulge earlier observed in Berry's pocket was no longer evident. Officer Bradford identified the pills as dilaudid, and the white powder as cocaine. The officers arrested Berry Other relevant facts will be stated in our discussion of the issues.

and inventoried the car. They found two bags full of smaller plastic bags, a large quantity of twist ties, and additional plastic bags stuffed with smaller bags.

DISCUSSION AND DECISION

ISSUE ONE

Berry first asserts that the trial court erred in not asking the jurors why they wanted to hear a tape of Officer Woods' testimony during their deliberations, and states that such error warrants reversal of Berry's conviction on all counts. This claim must fail because the jury never heard the disputed evidence, and because Berry's claim falls within the doctrine of invited error.

Initially, we note that the denial of the jury's request to hear a replay of Officer Woods' testimony is harmless error because the jurors never heard the testimony replayed. Thus, Berry may not complain that the jurors were unfairly influenced. See Underwood v. State (1989), Ind., 535 N.E.2d 118, 122.

Defendants cannot complain of errors that they induced the trial court to make; a party may not invite error and then rely on such error as a reason for reversal, because error invited by the complaining party is not reversible error. Amburn v. State (1990), Ind.App., 550 N.E.2d 762, 764, Stolberg v. Stolberg (1989), Ind.App., 538 N.E.2d 1, 5. Such invited errors are not subject to review by this court. Id.

As in Stolberg, Berry objected to the admission of evidence and now asserts the trial court's failure to admit the evidence as error. Specifically, he objected to the tape of Officer Woods' testimony being replayed for the jury, the judge sustained the objection and refused the jury's request. Now, he claims that the court erred by failing to interrogate the jury regarding why they wanted to hear the tape. Under the doctrine of invited error, he is therefore estopped to argue error based on the trial court's denial of the jury's request to which he objected.

ISSUE TWO

Berry next claims that the evidence on intent to deliver was insufficient to sustain his conviction of dealing in a Schedule II narcotic substance. He asserts that the evidence presented against him fails to meet the sufficiency test. We disagree.

We will neither reweigh the evidence nor judge the witnesses' credibility. Peate v. State (1990), Ind., 554 N.E.2d 825, 827. We consider only the evidence that is most favorable to the verdict, together with all reasonable inferences drawn therefrom, and will sustain a conviction if a reasonable trier of fact could conclude that the defendant is guilty beyond a reasonable doubt. Id.

Circumstantial evidence showing possession with intent to deliver may support a conviction. Adamov v. State (1989), Ind., 536 N.E.2d 281, 283. Possessing a large amount of a narcotic substance is circumstantial evidence of intent to deliver. Id. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally. Id.

On arrest, Berry possessed a large quantity of dilaudid tablets, much more than a typical user would possess on any given day. Also, the police recovered many small plastic bags and twist ties, and yet there was no paraphernalia found, nor were there any needle marks on Berry's body. Thus, there was ample evidence to support the inference that Berry possessed the controlled substances with intent to deliver and not for personal use, and the sufficiency test is met.

ISSUE THREE

Finally, Berry asserts that the trial court's denial of the motion to suppress physical evidence was error, and argues that State v. Pease (1988), Ind.App., 531 N.E.2d 1207, mandates reversal. We disagree.

The Fourth Amendment's fundamental precept is that individual privacy should not be subjected to unreasonable intrusions by governmental authorities. Roll v. State (1985), Ind.App., 473 N.E.2d 161, 164. Every seizure of a person, whether an arrest or an investigative stop, is subject to the Fourth Amendment requirement of reasonableness. Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899. In determining whether a particular search was reasonable under the Fourth Amendment, the legitimate governmental interest underlying the particular intrusion must be balanced against the degree of intrusion on individual privacy. Id.

Initially, we note that a trial court's decision to deny a motion to suppress is reviewed as a matter of sufficiency, and our inquiry focuses on whether there is sufficient evidence of probative value to support the denial; we will not reweigh the evidence or judge the credibility of witnesses. Lepard v. State (1989), Ind.App., 542 N.E.2d 1347, 1349. A police officer does not violate the Fourth Amendment by detaining and questioning someone who has just committed a traffic violation in the officer's presence. Id. Police may stop a vehicle for erratic driving alone, Castle v. State (1985), Ind.App., 476 N.E.2d 522, 524, and in evaluating the validity of an investigative stop, the totality of the circumstances must be considered. United States v. Sokolow (1989), 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10.

Both parties agree that Berry committed a traffic violation in Officer Woods' and Officer Bradford's presence by driving on the wrong side of the street, and Berry was therefore rightfully detained; thus, the officers properly approached Berry's vehicle and asked to see his driver's license. See Id. Even in a routine stop, based on safety concerns, an officer may ask a vehicle's driver, if lawfully detained, to exit the vehicle even though the officer has no particularized reason to believe that the driver possesses a weapon, and still not offend the Fourth Amendment. Poling v. State (1987), Ind., 515 N.E.2d 1074, 1077, cert. denied, 490 U.S. 1008, 109 S.Ct. 1646, 104 L.Ed.2d 161. This...