Coleman v. State

• Decision Date: 31 March 1992
• Docket Number: No. 20A05-9109-CR-304,20A05-9109-CR-304
• Citation: 588 N.E.2d 1335
• Parties: Michael J. COLEMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1335

588 N.E.2d 1335

Michael J. COLEMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A05-9109-CR-304.

Court of Appeals of Indiana Fifth District.

March 31, 1992.

Transfer Denied July 2, 1992.

R. Brent Zook, Goshen, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

A jury found Michael Coleman guilty of delivering more than three grams of cocaine, a Class A felony under Ind.Code 35-48-4-1 ("Sec. 4-1"). This direct appeal argues (1) Sec. 4-1 on its face is unconstitutionally vague, and violates the substantive due process and equal protection guarantees of the federal constitution as well as the Indiana constitutional guarantee of proportionality in sentencing; and, (2) it was reversible error to allow prosecution witnesses to testify about what Coleman's girlfriend said when he was arrested. We affirm.

I. CONSTITUTIONAL ISSUES

Turning first to the constitutional challenges to Sec. 4-1, we set out that portion of the statute relevant to Coleman's case:

(a) A person who: (1) knowingly or intentionally ... delivers ... cocaine or a narcotic drug, pure or adulterated, ... commits dealing in cocaine or a narcotic drug, a Class B felony, except as provided in subsection (b).

(b) The offense is a Class A felony if: (1) the amount of the drug involved weighs three (3) grams or more;

....

Coleman acknowledges that the adjectives "pure or adulterated" in subsection (a) modify "cocaine" as well as "narcotic drug," so delivery of a mixture containing even a trifle of cocaine is a Class B felony. But, he points out, the Class A felony defined in subsection (b)(1) speaks to three grams or more "of the drug involved," with no mention of adulteration. From that change of language, Coleman derives four constitutional arguments. We review those arguments mindful that " 'every statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary.' " Hall v. State (1980), 273 Ind. 425, 435, 403 N.E.2d 1382, 1389 (quoting Sidle v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763).

A. VAGUENESS

Coleman decries Class A enhancement as unconstitutionally vague for not providing clear notice that one may be convicted of a Class A felony for delivering a mere trace of cocaine mixed with enough adulterant to make three grams. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903.

Coleman's vagueness argument touches only cases involving less than three pure grams, because his criticism of Sec. 4-1 would be inappropriate in cases that indeed concerned three grams or more of pure drug. The State's evidence showed that Coleman delivered a white powder weighing 3.23 grams and containing cocaine. The mixture was not assayed. However, Coleman described it as 75% to 80% pure to the confidential informant to whom he delivered it. Accepting that as true for the sake of argument, Coleman delivered between 2.42 and 2.58 grams of pure cocaine.

Our case law holds that Class A enhancement turns on gross rather than net weight. See Clark v. State (1989), Ind., 539 N.E.2d 9, 12 (discussing the issue in terms of sufficiency of the evidence); Tobias v. State (1985), Ind., 479 N.E.2d 508, 511 reh'g denied (same); Hall, supra, 273 Ind. at 436-38, 403 N.E.2d at 1389-90 (same; for predecessor statute with enhancement for amounts over ten grams). See also Burst v. State (1986), Ind.App., 499 N.E.2d 1140, 1150, trans. denied (enhanced sentence for delivery of larger amounts of marijuana turns on gross weight). Although we know of no Indiana case discussing this issue in express terms of vagueness, we believe the question is answered in Lawhorn v. State (1983), Ind., 452 N.E.2d 915, which in addressing what seems a vagueness argument reported only that the appellant considered the enhancement "unconstitutional," without specifying the constitutional basis for the argument. Id. at 917. In Lawhorn the supreme court explained:

The antecedent of 'drug' in the second sentence is the drug discussed in the first sentence which is 'narcotic drug, pure or adulterated.' ... This is the statutory meaning as well as the usage and meaning common in drug trafficking.

Appellants and those with whom they dealt treated these transactions as cocaine sales of the aggregate weight of the substance.

452 N.E.2d at 917. In light of that discussion, we cannot say the Class A felony enhancement of Sec. 4-1 is unconstitutionally vague. Ordinary people can understand that it is the overall rather than pure weight that counts, and there has been no showing that Sec. 4-1 lends itself to arbitrary and discriminatory enforcement.

B. DUE PROCESS & EQUAL PROTECTION

Coleman next argues that the legislature's enactment of the Class A enhancement of Sec. 4-1 violates the guarantees of substantive due process and equal protection of the laws found in the fourteenth amendment to the federal constitution. In regard to due process, he quotes Richardson v. Belcher (1971), 404 U.S. 78, 84, 92 S.Ct. 254, 258, 30 L.Ed.2d 231 for the idea that a statute must seek legitimate goals through classifications that are rationally related to achievement of those goals. In Coleman's view, if the purpose of Sec. 4-1 is to punish more severely delivery of larger amounts of illegal drugs, then including adulterants for enhancement defeats that purpose and is irrational. The negation of that is found in the supreme court's reasoning in Clark, supra:

The obvious intent of the legislature [in enacting Sec. 4-1] was to prohibit the sale of controlled substances and to increase the violation to a Class A felony if the amount of drugs sold exceeds three grams. It is common knowledge, which we must assume was known to the legislature, that drugs such as cocaine are not sold on the street in their pure form but are "cut" with inert substances to dilute them to a usable form which will not overdose the user. It is the sale of just such a prepared substance to which the legislature addressed itself.

539 N.E.2d at 12. Although the issue was raised in Clark as a sufficiency of the evidence question, we find implicit in the quoted passage a rejection of Coleman's substantive due process argument. See also Hall, supra (approving rational basis test and finding a rational basis for predecessor statute of Sec. 4-1).

As to equal protection of the laws, Coleman asserts that Sec. 4-1 is unconstitutional because it punishes a defendant who delivered .01 gram of cocaine mixed with 2.99 grams of adulterant more severely than one who delivered 2.99 grams of pure cocaine, citing United States Dep't of Agric. v. Moreno (1973), 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782. This argument fails because precisely the same theory was raised in Tobias, supra, but in dissent. 479 N.E.2d at 512 (Prentice, J., dissenting). The majority opinion in Tobias, as in Clark, focused on the enhancement issue as a sufficiency of the evidence question. However, because the .01/2.99 equal protection theory was argued in dissent, we must conclude that the majority rejected such a position. Moreover, our supreme court in Lawhorn unanimously repudiated an argument numerically distinct from the foregoing but nevertheless expressly based on equal protection. See 452 N.E.2d at 917-18 (argument that Sec. 4-1 enhancement "would unequally penalize persons who sell identical amounts of pure cocaine--the inequality based on whether the cocaine was mixed with enough other substance to make an aggregate weight in excess of three grams.... The primary state interest served by drug dealing statutes is not simply the harm caused by a particular dosage, but the societal harm caused by the dealing itself.")

That Sec. 4-1 is not unconstitutionally vague and does not offend the rights of due process and equal protection is reinforced by Chapman v. United States (1991), --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524, reh'g denied, in which the Supreme Court considered a federal statute imposing an enhanced sentence for distributing more than one gram of a "mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD)." 21 U.S.C. 841(b)(1)(B)(v). The petitioner argued that because the weight of LSD is trivial compared to that of its carrier medium, the weight of the carrier should be excluded when determining sentence. That is, one dose of pure LSD weighs only .05 milligrams, meaning there are 20,000 doses in a pure gram. Because a dose is so miniscule, it is routinely combined with a more substantial carrier medium. One type of carrier medium, a sugar cube, weighs typically more than two grams. Therefore, one who distributes but one dose in a sugar cube is subject to an enhanced sentence, while one who distributes pure LSD sufficient to make 19,999 doses is not. The Court held the statute requires the weight of the carrier to be included for sentencing purposes, and that such a construction was neither unconstitutionally vague nor a violation of due process.

C. PROPORTIONAL SENTENCING

Coleman's final constitutional theory restates the foregoing equal protection argument in terms of our state constitution, which in art. 1, Sec. 16 mandates that penalties be proportioned to the nature of the offense. ¹ According to Coleman, basing enhancement on total rather than pure weight can yield disproportional sentences, imposing for example the Class A felony presumptive thirty-year sentence for delivery of three grams of "tainted talcum powder," while imposing only the ten-year presumptive sentence for a Class B felony...