Castillo v. State

• Decision Date: 31 August 2000
• Docket Number: No. 09A02-9909-CR-00648.,09A02-9909-CR-00648.
• Citation: 734 N.E.2d 299
• Parties: Fidel CASTILLO, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

734 N.E.2d 299

Fidel CASTILLO, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 09A02-9909-CR-00648.

Court of Appeals of Indiana.

August 31, 2000.

Rehearing Denied October 16, 2000.

Caroline B. Briggs, Lafayette, Indiana, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Barbara Gasper Hines, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant, Fidel Castillo (Castillo), appeals his convictions for Possession of Cocaine,¹ a Class A felony,² and for Dealing in Cocaine,³ a Class A felony.⁴

We affirm in part, reverse in part, and remand.

Upon appeal, Castillo presents four issues for our review:

1) Whether the convictions for possession of cocaine and delivering cocaine constitute double jeopardy;

2) Whether the trial court erred by failing to require the jury to decide unanimously which of two specific acts of dealing constituted the crime charged;

3) Whether there was sufficient evidence adduced at trial to conclude that Castillo committed the offense of possession of cocaine; and

4) Whether the search warrant issued was invalid because a police officer testified that the confidential informant was male when the confidential informant was actually female.

The facts⁵ most favorable to the jury's verdict reveal that on February 6, 1998, Dorla A. Salmons (Salmons), an inmate at the Cass County Jail, contacted Logansport Police Officer Robert A. Burgess (Burgess) and informed him that she could purchase cocaine from Castillo. Salmons agreed to act as a confidential informant for the Logansport Police Department and purchase cocaine from Castillo and another man named Arnaldo Garcia (Garcia).

Officer Burgess picked Salmons up at the Cass County Jail and brought her to his office. Officer Burgess searched Salmons to ensure that she did not have any drugs on her person, outfitted her with a wire, and gave her $200 to buy cocaine from Castillo. Indiana State Police Detective Larry Mote (Mote) then transported Salmons to Garcia's home at 401 East Miami Street in Logansport. Garcia's home is situated across from El-Tip-Wa which is a career center funded through the Logansport School Corporation. Detective Mote watched Salmons enter the home and monitored the transaction by radio from inside his car.

Inside Garcia's home, Castillo sold Salmons four "rocks" of cocaine for $200. Record at 930. Salmons immediately left the home, returned to Detective Mote's car and gave him the cocaine she had purchased from Castillo. Detective Mote then drove Salmons to a cemetery to meet with Officer Burgess who searched Salmons again to ensure that she was not carrying any money or drugs.

Later that same day, Detective Mote gave Salmons another $200 to purchase more cocaine and drove her to Castillo's apartment at 420½ Tenth Street in Logansport. Castillo's apartment is located next door to a licensed day care facility. Salmons entered the residence, purchased six rocks of cocaine, and then returned to Detective Mote's car. Officer Burgess again searched Salmons to make sure she did not have any hidden drugs or money.

On the evening of February 6, 1998, after obtaining a search warrant, the police officers conducted a search of Castillo's apartment. Upon approaching the apartment, Officer Burgess observed someone in an upstairs bedroom throw something from the window. The package landed between Castillo's apartment and the day care center and was later determined to contain over 15 grams of cocaine. Once inside the apartment, the police officers observed Castillo leaving the bedroom from which the cocaine had been thrown. At the time, Castillo lived in the apartment with his sister and brother-in-law.

In addition to the cocaine found outside the apartment, during the search of Castillo's apartment, the police also discovered the money that Salmons had used to make the two purchases of cocaine earlier that day, a stolen gun,⁶ $3,325 in cash, postal scales, and other property. Castillo was arrested, and on February 9, 1998, he was charged with Possession of Cocaine, Dealing in Cocaine, Maintaining a Common Nuisance,⁷ and Receiving Stolen Property.⁸

On December 23, 1998, Castillo filed a Motion to Suppress Evidence seized in the search of Castillo's home on February 6, 1998. He alleged that the testimony upon which the search warrant was issued was defective because it stated that the informant was reliable but did not state why the informant was reliable or credible. The trial court held a hearing on Castillo's motion to suppress on April 7, 1999. On April 26, 1999, the trial court denied Castillo's motion to suppress the evidence. On April 29, 1999, after a trial, the jury returned a verdict of guilty on all counts.

I. Double Jeopardy

Castillo first contends that his conviction for possession of cocaine and his conviction for dealing in cocaine violate the standards of double jeopardy because possession of a drug is an included offense of delivering that drug. Castillo asserts that the charging information for both the possession and the dealing allege the same date and do not differentiate between the time of the possession of the cocaine and the time of dealing.⁹ Castillo, therefore, concludes that the possession of cocaine was not sufficiently differentiated in the charging information from the possession inherent in the dealing charge, and therefore, convictions on both charges violated his right against double jeopardy.

Double jeopardy concerns usually arise when a defendant is either twice tried or given multiple punishments for the same offense. Redman v. State (1997) Ind.App., 679 N.E.2d 927, 928, trans. denied. In Richardson v. State (1999) Ind., 717 N.E.2d 32, 49, our Supreme Court recently analyzed the issue of double jeopardy and concluded:

"two or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." (emphasis in original).

Upon comparing the essential elements necessary to convict Castillo of possession of cocaine with those necessary to convict him of dealing cocaine, we conclude they are not the same. Possession involves knowingly or intentionally possessing cocaine, while dealing, as here charged, involves the knowing delivery of cocaine.¹⁰

However, even if a double jeopardy violation does not exist when comparing the essential elements, a violation may still have occurred if the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts. The "defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Richardson, supra, 717 N.E.2d at 53.

Here, evidence was presented at trial that Salmons visited Castillo's home and that Castillo sold and delivered cocaine to Salmons, thus, constituting the crime of dealing in cocaine. Evidence was also presented that later that same day, upon executing the search warrant to search Castillo's home, the police observed an unknown person toss almost 15 grams of cocaine out a bedroom window. Upon entering the home, Castillo was observed exiting the bedroom from which the cocaine had been thrown. This evidence was sufficient to establish that Castillo possessed cocaine. The evidence adduced at trial was sufficient for the jury to conclude that Castillo had committed two separate crimes at two different times on the same day. We, therefore, hold that convictions for both crimes did not violate the standards of double jeopardy.

II. Jury Unanimity

Castillo next asserts that it was error to allow the jury to hear evidence of two separate episodes of dealing in cocaine when he was charged with only one. He further contends that the trial court should have instructed the jury that they were required to unanimously agree upon which act supported the conviction for dealing in cocaine.

Recently, in Richardson v. United States (1999) 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985, the Supreme Court held that a jury must unanimously agree regarding which crime a defendant committed. The facts in that case, however, were markedly different from the facts in the instant case. There, Richardson was charged with violating a federal law making it a crime for any person to engage "`in a continuing criminal enterprise.'" Id. at 815, 119 S.Ct. 1707. (quoting 21 U.S.C. § 848(a)). The federal law defined a "`continuing criminal enterprise'" as a violation of the drug laws where that "`violation is a part of a continuing series of violations.'" Id. (quoting 21 U.S.C. § 848(c)).

The Court determined that it was error for the trial court to instruct the jury that they must agree that Richardson committed at least three violations, but that they did not have to agree upon which three violations he committed. Id. at 816, 119 S.Ct. 1707. The Court reasoned that it would be unfair to allow juries to avoid discussion of specific factual considerations when determining whether a defendant committed a violation. Id. at 819, 119 S.Ct. 1707. To do so would increase the danger that juries may conclude "that where there is smoke there must be fire," and to convict the defendant because he is a bad person. Id. at 819, 119 S.Ct. 1707.

Although factually different, that same reasoning is applicable in this case.¹¹ Here, the State chose to charge Castillo with one act of dealing in cocaine even though there was evidence that Castillo committed two separate acts of dealing in cocaine. The dealing charge was unspecific and only charged that "on or about February 6, 1998, in Cass County, State of...