Carter v. State

• Decision Date: 26 December 1984
• Docket Number: No. 1182S441,1182S441
• Citation: 471 N.E.2d 1111
• Parties: Lindsey CARTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1111

471 N.E.2d 1111

Lindsey CARTER, Appellant, v. STATE of Indiana, Appellee.

No. 1182S441.

Supreme Court of Indiana.

Dec. 26, 1984.

Law Office of Dock McDowell, Jr., Gary, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Lindsey Carter was found guilty by a jury in the Lake Superior Court of class A felony dealing in cocaine and of class B felony dealing in LSD, a schedule I controlled substance. The trial court subsequently sentenced Appellant to twenty-five years imprisonment for his class A felony conviction and to eight years for his class B felony conviction, said terms to be concurrently served. Appellant now directly appeals and raises the following four issues:

1. admissibility of evidence indicating similar deliveries by Appellant of other illegal drugs;

2. denial of Appellant's motion for mistrial;

3. denial of Appellant's motion for directed verdict; and

4. sentencing.

Paula Vido, an undercover narcotics officer, approached Appellant on October 1, 1981, and asked about purchasing some cocaine. In reply, Appellant told Vido and another undercover officer that "he didn't have any but his brother [Charles] had some." Appellant then offered to accompany Vido to Charles' house in order to complete a purchase. Vido further testified that after he purchased cocaine for $525 at Charles' house, Appellant told him: "If I ever needed to cop anything else, to let him know, he can get it for me." Appellant sat next to Vido during the entire exchange at Charles' house. As Vido prepared to leave, Cheryl Campbell, Charles' girlfriend, inquired if he would like to purchase some LSD. Vido purchased some LSD and, as he prepared to leave, Appellant again told him to call if he ever needed to "cop" anything else. Cheryl Campbell testified that she sold drugs to Vido because Vido was with Appellant and she therefore figured that Vido was "O.K.". She stated that if he had been by himself, she would not have sold to him.

I

Appellant first claims that the trial court committed reversible error by admitting evidence of two marijuana transactions involving Appellant which were analagous in time, place, and mode to the instant illegal drug sales. The testimony was that the two marijuana sales were within three weeks of the instant cocaine and LSD sales and were consummated by the same narcotics agent, Paula Vido. All of the sales were at the same location and involved Appellant and his brother Charles. Notwithstanding the general rule that evidence of prior crimes committed by a defendant which are separate and distinct from the charged crime is inadmissible to prove commission of the charged crime, this Court consistently has held that such evidence is admissible when it tends to prove intent, motive, purpose, identification or common scheme or plan. Downer v. State, (1982) Ind., 429 N.E.2d 953. In Downer, this Court went on to hold that the admission of evidence of a defendant's prior drug dealings is proper to show a common scheme or plan to engage in drug dealing. We find no error on this issue.

II

During trial, the State attempted to put into evidence Exhibit B, an ounce of marijuana, and Exhibit D, a pound of marijuana, which were the subjects of the other acts of selling involving Appellant and discussed in Issue I above. The record shows that the trial judge sustained an objection to Exhibit B and refused its admission into evidence. The trial court also admonished the jury:

"The objection of the defense on relevancy is sustained. There is no charge of possession or delivery of marijuana at all."

With regard to Exhibit D, there was no objection to the testimony concerning its purchase. Defense did object, however, when Exhibit D was offered into evidence. Following a discussion outside the hearing of the jury, the prosecution withdrew this Exhibit and it was never admitted into evidence. Appellant now states that the offering of Exhibits B and D amounted to prosecutorial misconduct which entitled him to a mistrial. He moved for mistrial before the trial court but said motion was denied.

We repeatedly have held that the reviewing court will reverse a trial court's decision to deny a mistrial motion only when it is shown that the defendant was placed in a position of grave peril to which he should not have been subjected. Morgan v. State, (1981) 275 Ind. 666, 419 N.E.2d 964. When the jury is admonished by the trial judge to disregard what has occurred at trial or if other reasonable curative measures are taken, the trial court's refusal to grant a mistrial is not reversible error. Tinnin v. State, (1981) 275 Ind. 203, 416 N.E.2d 116. There is no showing here that the State deliberately attempted to admit these Exhibits in order to prejudice Appellant with an "evidentiary harpoon" as Appellant claims. We have held that it was proper to allow testimony tending to prove that Appellant had, in fact, taken part in the delivery and sale of the marijuana represented by these two Exhibits. Since Appellant was charged with the delivery and sale of cocaine and LSD and there was strong evidence showing these illegal dealings, it hardly can be said that an attempt to offer into evidence amounts of marijuana that were later withdrawn placed Appellant in grave peril to which he should not have been subjected. This Court has noted:

"It is admitted, of course, that as a general rule, evidence which is withdrawn from the consideration of the jury by the direction of the trial judge may not serve as a basis for reversible error, that the direction of exclusion by the court cures any error which may have been committed in its introduction. * * But where, as here, the improper evidence was calculated to make such an impression on the jury that no direction from the court however strong, can eliminate the prejudice thereby created, the trial court must declare a mistrial." [emphasis deleted].

White v. State, (1971) 257 Ind. 64, 74, 272 N.E.2d 312, 318, quoting Helton v. United States, (1955) 221 F.2d 338, 341. We now do not find that the withdrawn Exhibits were calculated to make such an impression on the jury that the direction of exclusion by the trial court could not cure the alleged error.

At trial, the State introduced Exhibits A and C which were identified as the cocaine and LSD delivered in this case. With regard to these Exhibits, Police Officers Garnett Watson and Carsten Falkenberg testified as to their chain of custody and as to the proof of their chemical authenticity. The State, however, never offered these two exhibits into evidence. Appellant now claims that it was prosecutorial misconduct to have these exhibits identified but not put into evidence. Although it is not clear why the State did not put these Exhibits into evidence, we fail to find that Appellant has shown that the State engaged in prosecutorial misconduct or in any way improperly prejudiced him. The trial court correctly found that it was not necessary to offer said Exhibits into evidence as there was...