Conn v. State

• Decision Date: 28 March 1989
• Docket Number: No. 485S150,485S150
• Citation: 535 N.E.2d 1176
• Parties: James D. CONN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1176

535 N.E.2d 1176

James D. CONN, Appellant, v. STATE of Indiana, Appellee.

No. 485S150.

Supreme Court of Indiana.

March 28, 1989.

Michael J. McDaniel, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a conviction upon a count charging dealing in pentazocine, brand name Talwin, a Schedule II controlled substance. I.C. 35-48-4-2(a)(1); I.C. 35-48-2-6. The jury was unable to reach a decision on twenty-eight additional counts of forgery alleging the uttering of unauthorized prescriptions and insurance claim forms with the intent to defraud. An enhanced sentence of twenty years was given for the Class B felony.

The issues raised relate to the following events in the trial court:

1) The denial of a motion for change of judge.

2) The denial of a motion for mistrial and admonition of the jury.

3) The refusal to give an instruction on the defense of mistake of fact.

4) The refusal to give an instruction defining the lesser offense of delivery of a Schedule IV controlled substance and appurtenant verdict form.

5) The refusal to give an instruction defining responsibilities for dispensing Schedule III and IV drugs.

6) The grant of permission to defendant's co-counsel to withdraw from the case.

7) The refusal of the court to investigate the possible bias of a juror after commencement of the trial.

8) Questions and statements of the court during voir dire examination of prospective jurors regarding the right to remain silent and not testify.

9) The denial of a defense motion for a judgment of acquittal on the evidence on all forgery charges following all of the evidence.

10) The denial of a motion for change of venue from the county.

The evidence upon which the jury was warranted in returning a verdict of guilty on Count I, showed the following. Appellant was a licensed pharmacist on November 9, 1983, running the Marengo Drug Store. On that evening, one J.C. Gray entered the store at about closing time. He told appellant he wanted a couple of bottles of Talwin. Appellant went outside the store and looked around. He then went back inside, got them off a shelf and handed them to Gray. Gray paid appellant sixty-four dollars. Each bottle contained one hundred tablets. Appellant affixed no label identifying a dosage and prescription number. Gray did not provide a prescription for the tablets at the time. Gray exited the store and was arrested. He had seven hundred dollars on his person.

There was evidence that Gray was visiting the drug store three and four times a week and making drug purchases amounting to as much as two hundred dollars. Gray testified that he resold the drugs for a significant profit. An expert for the State testified that Talwin was classified in Indiana as a Schedule II controlled substance on the date in question and, at that time, it appeared on the schedule in the statute as such.

Appellant was arrested. A search of the store pursuant to a warrant resulted in the seizure of many written prescriptions, including State's exhibit 24-A, an alleged prescription dated October 11, 1983 for one hundred tablets of Talwin, allegedly signed by a Dr. Snyder with a notation for five refills; and including state's exhibit 24-B, an alleged prescription dated November 7, 1983 for one hundred tablets of Talwin, allegedly signed by Dr. Snyder made out to J.C. Gray. There was evidence presented from which it could reasonably be inferred that these prescriptions were written by appellant in such a manner as to make them appear to have been written by Dr. Snyder and that Dr. Snyder had not authorized them in any manner.

After both sides had rested, the defense renewed its motion for judgment of acquittal on the evidence on all counts. The motion was denied. The jury was instructed as to all twenty-nine counts. The jury returned a verdict of guilty as to Count I, the delivery of Talwin, and reported in open court that it was unable to reach a decision on the remaining counts of forgery. The court received the single verdict of guilty and entered a judgment of guilty upon it. The court stated that the jury was hung and the jury was discharged. No express discrete order was made declaring a mistrial on the remaining twenty-eight counts. The defense made a motion for mistrial as to all counts, based upon alleged mishandling of the jury, which was denied.

I.

Appellant challenged the denial of his motion for judgment on the evidence in his motion to correct errors. The motion was denied. Appellant claims now on appeal that the evidence was insufficient to support a conviction on the forgery counts, arguing that the ruling on the motion for judgment on the evidence at the close of the case, as it relates to the forgery counts, was error.

In Dunn v. State (1973), 260 Ind. 142, 293 N.E.2d 32, cited by appellant, this Court reversed a murder conviction for insufficiency of evidence and ordered discharge. In so doing, the Court wrote that the denial of the defendant's motions for directed verdict had been error. There the appeal was from a judgment of conviction on a single murder indictment; and the directed verdict motion claimed insufficient evidence to warrant that conviction. Here, by contrast, there has been no judgment upon the forgery charges. The question presented is whether this Court should now canvass the evidence in support of the forgery counts to determine its sufficiency.

Most recently this Court recognized that a trial court would have jurisdiction to rule upon a criminal defendant's motion under Trial Rule 50 for judgment on the evidence, after a hung jury where no verdict was rendered. State v. Lewis (1981), Ind., 429 N.E.2d 1110. The State can appeal from the granting of such a motion and the standard to be applied by the trial court and by the appellate court is that a motion should be granted if there is no evidence or reasonable inference to be adduced therefrom to support an essential element of the charge. Appellant did not file a motion pursuant to Trial Rule 50 as in Lewis; however, he did file a motion to correct errors pursuant to Trial Rule 59, since amended, claiming that the trial court had committed error in overruling his motion for judgment on the evidence at the end of the trial and requesting discharge. The motion was denied. This motion served the same purpose as the Trial Rule 50 motion in Lewis and, if granted, would have been appealable under Lewis. Id. The denial of this motion to correct errors should, for appeal purposes, be treated the same as a denial of a Trial Rule 50 motion. Lewis did not decide whether the denial of such a motion was appealable. Id. We note at this point that the trial court has stayed further proceedings on the remaining forgery counts.

Appellant's sufficiency claim runs afoul of the rule requiring the existence of an appealable order. In those cases now pending against appellant on the remaining twenty-eight counts of forgery, there has been no appealable order. The determination of a deadlocked jury and discharge of the jury is not final and appealable. The denial of the post-trial motion for judgment on the evidence, encompassed by the motion to correct errors, following the determination of a hung jury and discharge of the jury, is not final. It contemplates and permits the restarting of a trial on the unresolved charges; whereas, by contrast, the grant of such a motion as in Lewis does not. Lewis, 429 N.E.2d at 1117. For this reason, the sufficiency claim is not deemed presented. This ruling does not trench upon rights protected by the Double Jeopardy Clause because there has been no termination of first jeopardy. Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).

II.

Three young men lived and worked with appellant at the drugstore. They used drugs from the inventory with his knowledge. One defense theory was that they were victimizing him. A month before his arrest on these charges, appellant reported a robbery of the store by several unidentified men. One of the young men testified against appellant; and, on cross-examination, defense counsel brought this robbery to the forefront and sought to get the witness to admit that he had been one of the robbers. The main police witness was called by the defense and questioned in sweeping fashion about the scope of the investigation of the robbery. It was brought out that the investigation was stopped without an arrest or identification of the robbers. The inference raised was that of police corruption, incompetence or bias against appellant. On cross-examination by the trial prosecutor, the following occurred:

Q. Detective Graves, why was the robbery investigation suspended?

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A. Information at the time that I interviewed Mr. Conn along with Trooper Gilbert on September the 28th, I advised Mr. Conn that in my opinion he was lying about the information that he was giving us; that's the reason that Trooper Gilbert asked me to help with the interview. He suspected that Mr. Conn was not divulging all of the information. I told Mr. Conn that in my opinion he knew who it was who had been to the pharmancy early that morning and robbed him, and I asked him if he would submit to a polygraph test and he refused.

Defense counsel moved for a mistrial because of mention of appellant's refusal to take the polygraph with its inference that he was a liar. The trial court denied the motion and refused another request for an admonition to disregard the testimony.

Proof of the fact that a polygraph examination was taken or was refused, like the result of a polygraph examination, is, in the absence of some sort of waiver or stipulation, inadmissible in a criminal prosecution. Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540; Williams v. State (1978), 268 Ind. 365, 375 N.E.2d 226. A mistrial should be granted where the accused, under...