Carey v. State

• Decision Date: 05 March 1981
• Docket Number: No. 280S29,280S29
• Citation: 416 N.E.2d 1252,275 Ind. 321
• Parties: Wilbur CAREY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1252

416 N.E.2d 1252

275 Ind. 321

Wilbur CAREY, Appellant, v. STATE of Indiana, Appellee.

No. 280S29.

Supreme Court of Indiana.

March 5, 1981.

James A. Neel, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Wilbur Carey was charged in Marion Criminal Court, Division Two, with two counts of unlawful dealing in a controlled substance, to-wit: heroin, under Ind.Code § 35-24.1-4.1-1 (Burns 1975), and with being a habitual criminal, under § 35-8-8-2. On the motion of the State, the habitual criminal count was dismissed prior to trial. Carey was tried to a jury and convicted on the two remaining charges. The trial court sentenced him to twenty years on each count, and fined him in the amount of two thousand dollars on each count. Following the denial of two belated motions to correct error, appellant initiated this appeal.

The sole issue on this appeal concerns several alleged instances of prosecutorial misconduct regarding the informant's testimony and the disclosure of information about the informant. Appellant contends the prosecutor failed to disclose exculpatory evidence relating to the credibility of the informant. He further asserts that the informant made several statements during his testimony which the prosecutor knew or should have known were of a perjurious nature. Therefore, he argues, under United States v. Agurs, (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, and Richard v. State, (1978) 269 Ind. 607, 382 N.E.2d 899, the convictions should be set aside as violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The charges against Carey arose out of two controlled buys executed by an informant working for the Indianapolis Police Department and the federal Drug Enforcement Administration (D.E.A.). While this investigation was conducted and completed primarily through the efforts of the Indianapolis Police Department, a number of D.E.A. agents assisted in the preparation of this case against Carey. On September 13, 1977, the informant, Stacy Shields, telephoned Carey at the latter's home in Indianapolis. Shields placed the call from a room in a hotel some distance away. Two Indianapolis Police Officers, Schneider and King, and a D.E.A. Special Agent, McGivney, were present in the room when Shields placed the call. With Shields' permission, Officer Schneider monitored and tape recorded the conversation. Appellant Carey agreed to meet Shields in the parking lot of the Meadows Shopping Center and sell him some heroin. At the same time, another Indianapolis Police officer was conducting visual surveillance on Carey's home.

At the conclusion of the conversation between Shields and appellant Carey, police officers prepared for Shields to make the heroin purchase from Carey. Police officers searched Shields' automobile and conducted a strip-search of Shields. Shields was then given one hundred thirty dollars to be used in buying the heroin from Carey. In addition, a "kel-set" radio transmitting device was placed in Shields' shirt pocket. Shields then drove his car to the Meadows Shopping Center to meet Carey. Police officers kept Shields in sight at all times. Meanwhile, Carey left his home in his automobile shortly after talking with Shields. A police officer followed Carey as he drove to the Meadows Shopping Center parking lot.

Upon arriving at the parking lot, Shields parked in the prearranged area. Two police officers parked a few hundred feet from Shields' car in a van. Shortly thereafter, Carey drove into the lot and parked next to Shields' car. Appellant Carey then exited from his car and joined Shields in the front seat of the latter's car. At that time, Carey gave Shields two small balloons containing a brown powdery substance, and Shields tendered the cash in the amount of the prearranged purchase price. Appellant Carey then returned thirty dollars to Shields, indicating he was willing to sell the heroin for only one hundred dollars. Carey then returned to his own car and left the parking lot. Likewise, Shields returned to the hotel. This sequence of events in the parking lot was observed by the officers in the van and was recorded in a series of six photographs, showing Carey walking to Shields' car and sitting with him in the car.

At the hotel, police officers recovered the balloons and the thirty dollars from Shields. Once again, Shields' car was searched and Shields was subjected to a strip-search. No other narcotics or money was recovered from Shields' car or person.

The next day, September 14, this procedure was repeated with only minor differences. Four telephone calls were required to finalize plans for Shields to meet with Carey. Each call on the second day was also placed from the hotel room; however, Indianapolis Police Officer Schneider was the only law enforcement officer present. With the exception of these two facts, the second day's controlled buy proceeded along substantially the same lines as had the first day's purchase. The informant, Shields, was searched before and after the purchase, as was his automobile. A series of photographs also corroborated the informant's and the police officers' testimony as to what had taken place with appellant Carey.

The purchase on the second day also netted two small balloons containing a brown powdery substance. On both days, police officers conducted field tests on the substances, and the tests indicated the presence of an opium derivative. In addition, expert testimony from two forensic chemists established that the balloons obtained from appellant Carey contained heroin.

This recitation of the facts reveals that Stacy Shields was the linchpin in the narcotics investigation of Carey and was the key witness against him. As noted above, appellant asserts that he was victimized at trial by repeated acts of perjury allegedly committed by Shields and the prosecutor's failure to disclose exculpatory evidence concerning Shields to defense counsel and to the jury. While one alleged perjurious statement concerns one fact of the actual case against Carey, the significance of the perjury and disclosure issues lies primarily in their bearing on the important question of Shields' credibility. We shall proceed to review these alleged instances of perjury and the alleged failure to disclose exculpatory evidence in the context of the entire trial.

Stacy Shields was the first witness called by the prosecution. He testified in detail concerning the two purchases of heroin from appellant Carey. Shields testified on direct and cross-examination that only Officer Schneider was present in the room when he telephoned Carey on the first day to arrange the first controlled buy. He also testified on direct examination that he had never been involved in the distribution of heroin and that he had never sold heroin. Shields asserted that he had volunteered to act as an informant in the investigation that resulted in the prosecution of Carey. He also testified that there were no pending state or federal charges pending against him, and that no promises or inducements had been given to him in exchange for his agreeing to testify against Carey. Shields further testified that his only felony arrest was in 1971 for a violation of the 1935 Firearms Act. At the conclusion of Shields' testimony, the court recessed for the day.

The next morning, before the jury was returned to the courtroom, the deputy prosecutor in charge of this case addressed the court. She stated that she had just been informed that federal surveillance reports indicated that Stacy Shields had delivered narcotics to an undercover federal agent. The prosecutor recognized that there was, to say the least, "some disparity" between these reports and the testimony given by Shields on the previous day. The prosecutor proposed to recall Shields to the witness stand to clear up this matter. In the colloquy which followed, defense counsel moved for a mistrial. Counsel argued that the prosecutor was charged with knowing of Shields' relationship with federal agents; he alleged that the Indianapolis Police detective in charge of this case actually knew when he first met Shields that Shields had delivered narcotics to federal agents. The deputy prosecutor asserted that she had just learned for the first time of narcotics transactions between Shields and D.E.A. agents. She claimed that Shields never told her that he had sold drugs to anyone.

At that point, outside the presence of the jury, an evidentiary hearing was held, during which two law enforcement officers testified regarding Stacy Shields. Indianapolis Police Officer Tom Schneider testified that he directed the general investigation in which Stacy Shields was used as an informant, including the activities which led to the arrest of appellant Carey. Shields first became known to Schneider when he learned that Shields was a "courier" for a heroin distribution organization. In connection with the D.E.A., Indianapolis Police decided to have an undercover federal agent purchase heroin from Shields; as a result of the obvious bargaining leverage gained by police through such a transaction, Shields would be forced to work for them as an informant. This plan was put into action, and Shields unwittingly made three deliveries of heroin to Special Agent Howard Hayes of the D.E.A. These deliveries were made in early 1977, approximately six months before appellant Carey's two sales to Shields. Officer Schneider testified that Shields was never arrested for these deliveries, and that there were no pending state or federal criminal charges pending against Shields. He also testified that the details of Shields' deliveries to Agent Hayes were recorded in surveillance reports prepared by Indianapolis Police Officers and D.E.A. personnel. However, Schneider admitted that these reports, and therefore,...