Carey v. State, 2-1278A438

• Decision Date: 17 May 1979
• Docket Number: No. 2-1278A438,2-1278A438
• Parties: Wilbur CAREY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 357

389 N.E.2d 357

180 Ind.App. 516

Wilbur CAREY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-1278A438.

Court of Appeals of Indiana, Fourth District.

May 17, 1979.

James A. Neel, Davis Neel & Headlee, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

The appellant, Wilbur Carey, was found guilty of possession of a narcotic drug, heroin, in violation of the Indiana Uniform Controlled Substances Act, IC 1977, 35-48-4-6. He appeals the trial court's refusal to permit questioning of the arresting officer, called as a witness by the defense, either directly or indirectly as to the identity of the confidential informant on whose information a search warrant was issued.

The State urges that Carey has waived this issue by his mistaken characterization of the questions as cross-examination. We do not think this mistake was material. Both the motion to correct errors and the appellant's brief on appeal clearly indicate the facts constituting the alleged error. No one was misled.

The general rule regarding disclosure of confidential informants' identities is that policy prevents it, unless disclosure is relevant and helpful to the defense of an accused or is necessary for a fair determination of the cause. Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814, as explained in McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613, the Indiana Supreme Court established the rule that when the State introduces hearsay evidence from a confidential informant which the jury can consider in determining the guilt or innocence of the accused, the State has opened the door to the identity of the confidential informant. In McCulley, the court found that testimony that surveillance was undertaken as a result of an informant's tip did not require disclosure of the informant's identity, because that evidence did not bolster the prosecution's case with regard to any matter in issue.

Carey argues that the State opened the door in this case by introducing into evidence the search warrant and supporting affidavit, by the authority of which he was searched. His conviction is based on the heroin found in his pockets at that time. The supporting affidavit includes statements of a confidential informant that he had been present in the appellant's house a few days prior and that the appellant was keeping and selling drugs at that time. The presentation of this statement to the jury clearly would require disclosure of the informant's identity under the Glover-McCulley rule. However, the record before us does not indicate that this statement was made known to the jury.

Carey's trial included a continuing disagreement between the prosecution and defense whether the documents were admitted as a general exhibit or for a limited purpose. The prosecution clearly intended that the documents serve only as evidence that the search by which the heroin was found was a lawful one. ¹ By way of foundation, the affiant-arresting officer identified the documents, making no mention of their contents. The prosecution then formally offered them as State's exhibits, to which the defense objected on the bare assertion that they were inadmissible. The defense declined the trial judge's invitation to expand on this objection, whereupon the judge overruled the objection. The prosecution then stated that the documents were offered for limited purpose, but the defense objected on the grounds that the documents were already in evidence as a general exhibit. The judge stated, ambiguously, that they were in evidence. Nevertheless, the prosecution apparently chose to treat the exhibits as admitted for a limited purpose. The documents were neither read aloud to the jury, summarized for their benefit, nor given to the jurors that each might read them himself. At the close of the State's case and in the course of responding to Carey's motion for judgment on the evidence, the prosecution again raised the issue. Stating that the documents were offered for the limited purpose of showing the lawfulness of the search and were in fact used for that sole purpose, the prosecution pointed out that the jury had neither heard nor viewed the contents. The trial judge responded only by overruling Carey's motion for judgment on the evidence. The defense then called, as its own witness, the arresting officer on the basis of whose testimony the documents were admitted into evidence. The officer was given the documents which he identified as the same he had identified earlier. The defense then requested the officer to read the probable cause affidavit to the jury. The prosecution objected on the grounds that it was offered for a limited purpose. The trial court resolved prior ambiguity by overruling the objection. However, notwithstanding permission to disclose the contents of the affidavit, the defense did not repeat its request to the officer that he read the affidavit out loud. Instead, defense asked if there were mention in the document of an informant. Until this moment, the word had not been uttered in the presence of the jury. Upon the officer's response, "yes," the defense asked the name of the informant. The prosecution objected. Upon the objection being sustained, the defense asked the officer to explain the three prior incidents in which the informant had given reliable information. Again, the prosecution objected and was sustained. Some discussion was entered into regarding an offer to prove. The defense requested that it be made later so that the jury need not be sent out at that time, to which the trial judge consented. The prosecution declined cross-examination and the defense rested. Our record ends after Carey's second motion for judgment on the evidence was overruled. If the jury ever was informed of the contents of the affidavit, it must have occurred during proceedings not included in the record before us. However, we cannot speculate as to what a more complete record might have revealed. Sekerez v. Lake County Bd. of Comm'rs (1976), Ind.App., 358 N.E.2d 140, 143. Rather, we must infer that the record before us omits nothing favorable to the appellant, since it is his duty to present a proper record reflecting the facts on which alleged error is based. Bryant v. Owens (1953), 232 Ind. 237, 111 N.E.2d 804, 806; Fort Wayne v. Bishop (1950), 228 Ind. 304, 92 N.E.2d 544. See also State v. Hancock Superior Court (1979), Ind., 383 N.E.2d 1042; Chustak v. Northern Ind. Public Service Co. (1972), 259 Ind. 390, 288 N.E.2d 149. We must presume then that the statement of the confidential informant included in the affidavit was never disclosed to the jury.

Carey argues that because the affidavit was Formally admitted into evidence as a general exhibit, the State opened the door with respect to the confidential informant regardless of whether that informant's statement was made known to the jury. We disagree.

We perceive a distinction between "evidence" as a broad term, defined as "that which tends to produce conviction in the mind as to the existence of a fact," Taylor v. Fitzpatrick (1956), 235 Ind. 238, 132 N.E.2d 919, 922, and items which are "In evidence." The latter implies an official proceeding for the purpose of determining the truth of a matter. Items offered as proof in the course of the proceedings are admitted "into evidence" if deemed eligible according to rule, and on the basis of items so admitted the trier of fact makes its determination.

Dean McCormick describes the procedure for presenting documentary evidence as follows:

The party wishing to introduce any sort of evidence of this type should first have the thing marked by the clerk for identification as an exhibit for the party. Having had the thing marked by the clerk for identification as an exhibit, the proponent should "lay the foundation" for its introduction as an exhibit by having it appropriately identified or authenticated by the testimony of a witness who is qualified to identify or authenticate it.

Next, the proposed exhibit should be submitted to the opposing attorney for his inspection, at least upon his request, and then the proponent should present it to the judge, stating, e. g., "Plaintiff offers this (document or object, describing it), marked, 'Plaintiff's Exhibit No. 2' for identification, as Plaintiff's Exhibit ...