Beverly v. State
| Decision Date | 20 September 1989 |
| Docket Number | No. 49S00-8712-CR-1181,49S00-8712-CR-1181 |
| Citation | 543 N.E.2d 1111 |
| Parties | Orlester BEVERLY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Orlester Beverly, Michigan City, pro se.
Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in appellant's conviction of Count I, Dealing in Heroin, a Class A felony, and Count III, Possession of Heroin, a Class C felony, which was incorporated into Count I. For his conviction under Count I, he received a sentence of fifty (50) years, which was enhanced by thirty (30) years due to a finding that he is an habitual offender, for a total sentence of eighty (80) years.
The facts are: On July 15, 1987, Detectives Kraeszig and Blackwell of the Indianapolis Police Department acted upon information supplied by a confidential informant and positioned themselves near appellant's apartment to observe his activities. They learned from the informant that appellant was in the process of moving a large quantity of drugs. They conducted surveillance and observed appellant and a man, woman, and child enter an apartment in the complex which was not appellant's. Appellant and the others then got into his car and left the complex. Police followed them, pulled the car over, and advised appellant that they were going to search his apartment pursuant to their search warrant. When they arrived at his apartment, appellant let them in with his key, and he was read the search warrant and given his Miranda rights.
After appellant was advised of his rights, he stated that the drugs were on the table, that they belonged to him, and that the people who were with him had nothing to do with it. Inside a sack on the table were envelopes containing 522 bindles of heroin, weighing 35.5 grams which were 3.7 percent pure. Police also seized two plastic plates covered with cocaine residue and a set of scales which had on its pans cocaine residue. Also, two electric coffee grinders with heroin residue in them were seized, as well as eight bottles of quinine and packing materials.
In his pro se brief, appellant argues the trial court erred in denying his motion for continuance due to the unavailability of witnesses. On the first day of trial, he moved for a continuance for the purpose of procuring the testimony of the couple who were in the car at the time he was stopped. His motion stated that a Ms. Wilson, who was absent due to being stationed in Washington State in the National Guard, was prepared to testify that she was in appellant's apartment before they got in his car and were stopped by the police, and at that time, no drugs were in the apartment. Appellant asserts her testimony was vital to his case because it was the only evidence to rebut the affidavit for probable cause and the testimony of the police officers.
Indiana Code Sec. 35-36-7-1 allows a continuance to be granted due to the absence of a witness, provided a motion is made five days prior to the commencement of trial and is supported by appropriate affidavits. Continuances not conforming to the statutory requirements may be granted within the sole discretion of the trial court. The denial of a motion for continuance is reversible only when the denial constitutes an abuse of discretion and the record demonstrates that the accused was prejudiced. Clarkson v. State (1985), Ind., 486 N.E.2d 501.
The record shows that the trial court denied appellant's motion for continuance made on the first day of trial because both parties had been given every opportunity to locate their witnesses prior to trial, and if his motion had been filed earlier, the trial court could have made a request to the National Guard that Wilson participate in the trial, if she were truly needed. Additionally, the police officers testified that Wilson was not in appellant's apartment prior to his arrest. We find no abuse of discretion or prejudicial error in denying appellant's motion for continuance made on the first day of trial.
Appellant contends the trial court should have granted his motion to suppress the evidence obtained from the search of his apartment. The affidavit for probable cause states that police received information from a confidential, credible, and reliable informant that cocaine and heroin were being stored and sold in appellant's apartment, and that it may be moved in a short time. The informant stated that he or she had been inside appellant's apartment within seventy-two (72) hours of the time in which the information was supplied to police. Appellant claims that the affidavit supporting the search warrant was based on unsubstantial and untruthful information because he was in Evansville during those seventy-two hours, so the informant could not have been in his apartment. Thus, the search was invalid, and the evidence obtained therefrom should have been excluded.
Probable cause to issue a search warrant does not require a demonstration of a prima facie showing of criminal conduct, nor does it require a demonstration that contraband will be found on the premises to be searched. Probable cause to issue a search warrant need only show there is a probability of criminal activity. The decision to issue a warrant should be based on the facts stated in the affidavit and the rational and reasonable inferences drawn therefrom. Blalock v. State (1985), Ind., 483 N.E.2d 439.
When an affidavit is based upon an informant's tip, the task of the magistrate is to simply make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Culver v. State (1988), Ind.App., 519 N.E.2d 196, citing Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. In reviewing an affidavit, this Court will not conduct a de novo review, but will ensure that the magistrate had a substantial basis for concluding that the affidavit established probable cause. Culver, supra.
In appellant's case, the affidavit stated that Officer Breen had good cause to believe that a controlled substance was being kept, used, and sold in appellant's apartment because the confidential informant stated he or she was inside appellant's apartment and observed cocaine being kept, used, and sold by appellant. The informant was known to Officer Breen to be a past user of cocaine and knows its appearance and the manner in which it is packaged for sale. The informant was said to be reliable because he or she provided information previously which resulted in at least three arrests with at least three seizures of controlled substances and convictions.
Considering the fact that this informant had supplied reliable tips several times in the past, that he or she had firsthand information about the activity inside appellant's apartment, that he or she was familiar with drug use and trade, and that time was of the essence, we find that the rational and reasonable inferences drawn from the affidavit support the conclusion that there was a fair probability that contraband or evidence of a crime was inside appellant's apartment. Culver, supra. Because the affidavit was sufficient, we find the evidence obtained from the search was properly admitted.
Appellant contends his motion to compel the identity of the confidential informant was erroneously denied. Appellant's motion stated that he was not in...
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