Evans v. State, No. 73S02-9411-CR-1117

• Docket Nº: No. 73S02-9411-CR-1117
• Citation: 643 N.E.2d 877
• Case Date: November 23, 1994
• Court: Supreme Court of Indiana

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643 N.E.2d 877 Ronald Dale EVANS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 73S02-9411-CR-1117. Supreme Court of Indiana. Nov. 23, 1994.

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Jerry J. Lux, Lux & Barrett, P.A., Warren R. Good, Robison, Apsley & Good, Shelbyville, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

SHEPARD, Chief Justice.

A jury found appellant Ronald Evans guilty of possessing cocaine with the intent to deliver and maintaining a common nuisance. The Court of Appeals reversed both convictions. We grant transfer to affirm the conviction for dealing cocaine.

Facts

The evidence most favorable to the judgment show that on July 10, 1992, Robert Decker called Evans to purchase some cocaine. Evans, who lived in Shelbyville, explained that he would have to go to Indianapolis to buy the cocaine. Decker offered to accompany him, and the two drove to Indianapolis in Evans' small pick-up truck. Once in the city, Evans purchased the cocaine and sold a portion to Decker, who then injected himself with the drug using a syringe he had brought with him. On the way back to Shelbyville, Evans stopped by the side of the road so that Decker could urinate. Decker also disposed of the syringe before returning to the vehicle.

Unbeknownst to Evans and Decker, law enforcement officers from Shelbyville had received a tip that Evans was selling cocaine, and they were tracking his movements. The police arrested both Evans and Decker as they were returning to Shelbyville. The police found two baggies of cocaine on Decker's person and one on the floor of Evans' truck on the passenger's side. They did not find any cocaine on Evans at the time of arrest.

Based on their surveillance of Evans and a statement given by Decker, the prosecutor charged Evans with possession of cocaine with intent to deliver, Ind.Code Ann. § 35-48-4-1(a)(2)(C) (West Supp.1994), and maintaining a common nuisance, Ind.Code Ann. § 35-48-4-13(b) (West Supp.1994). A jury found Evans guilty of both crimes. The Court of Appeals, however, reversed the convictions. Evans v. State (1994), Ind.App., 627 N.E.2d 832. The court held that the prosecution had deliberately solicited inadmissible testimony in order to prejudice the jury against Evans and ordered a new trial. Id. at 833-34. The court further held that the evidence was insufficient to support the conviction for maintaining a common nuisance. Id. at 834. We summarily affirm this latter decision. Ind.Appellate Rule 11(B)(3).

I. The Alleged Evidentiary Harpoon

We first address Evans' claim that the prosecution deployed an "evidentiary harpoon." An evidentiary harpoon occurs when the prosecution places inadmissible evidence before the jury for the deliberate purpose of prejudicing the jurors against the defendant. Moffatt v. State (1989), Ind., 542 N.E.2d 971; White v. State (1971), 257 Ind. 64, 272 N.E.2d 312. Thus, to prevail on such a claim of error, the defendant must show that (1) the prosecution acted deliberately to prejudice the jury and (2) the evidence was inadmissible. While the trial court agreed

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with Evans that the evidence was inadmissible, it held that the testimony in question did not constitute a harpoon. We agree with Judge Rucker's dissent in the Court of Appeals, Evans, 627 N.E.2d at 834, that the evidence was admissible and that there was therefore no evidentiary harpoon. Defense counsel's motion for mistrial was properly denied.

To prove that Evans possessed cocaine, the prosecution relied primarily on Decker's testimony. It also solicited testimony from Larry Coleman, a Shelby County Jail officer, who testified that during a strip search of Evans he discovered "a baggie with white powder residue" in the defendant's shirt pocket.

The defense objected to Coleman's testimony and moved for a mistrial, claiming that any inference about Evans' possession of cocaine drawn from Coleman's testimony concerning the baggie would be unwarranted. The defense pointed out, and the prosecution admitted, that the State could neither produce the baggie nor demonstrate that the substance was in fact cocaine. In response, the prosecution explained that Coleman was prepared to testify further that the baggie he found on Evans was similar to the baggies found in Evans' vehicle. The prosecution argued that the jury should be permitted to determine the extent to which Coleman's testimony supported the contention that Evans possessed the cocaine. The trial court sustained the defense's objection, and so instructed the jury, but denied the motion for mistrial.

Absent some particular prohibition, evidence that is material and relevant should go to the jury. Trial courts are vested, however, with the discretion to exclude relevant evidence where its probative value is substantially outweighed by the threat of unfair prejudice to the defendant. ¹ Chittenden v. State (1982), Ind., 436 N.E.2d 86. In applying this standard, courts must first determine the probative value of the evidence, including the proponent's need for that evidence. Second, courts must determine the likely prejudicial impact of the evidence. In particular, courts will look for the dangers that the jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury. See Stone v. State (1989), Ind.App., 536 N.E.2d 534; see also Cook v. Hoppin, 783 F.2d 684 (7th Cir.1986). Finally, courts must weigh the probative value against the danger of unfair prejudice and will exclude relevant evidence only where the threat of prejudice substantially outweighs its probative value.

In this case, if the jury believed Coleman's testimony that Evans had the baggie in his possession, they might have reasonably inferred in the context of the State's case that the white powdery residue in that baggie was cocaine. This, of course, would have been important corroboration of Decker's testimony.

As for potential unfair prejudice, Coleman's testimony was not likely to stir the emotions of the jurors, but it is troublesome that the State lost or discarded the baggie and failed to test the white residue. While these failures do raise the possibility that the jury might have overestimated the value of this testimony, we conclude that the jury was capable of discounting the value of the evidence in light of the possibility that it was manufactured by the jailor after the fact or that the white substance was not cocaine.

We conclude that the value of the evidence was not substantially outweighed by the danger of unfair prejudice. The trial court could well have denied the motion to strike the testimony. The court exercised good caution in granting the motion and admonishing the jury, but the testimony of the jailer hardly placed Evans in a position of grave peril, and the court properly denied the request for a mistrial.

II. Admission of the Syringe

Evans claims that the trial court abused its discretion in admitting a syringe found on the road between Indianapolis and

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Shelbyville. The syringe was allegedly used by Decker to inject himself with cocaine on the way back from Indianapolis and then abandoned near an overpass on I-74. Recovered four months after the incident, the syringe was not unique, and Evans argues that Decker could have planted the syringe to substantiate his story. This threat of fabrication, counsel contends, required exclusion of the syringe. Counsel also claims that the prejudicial impact of the syringe substantially outweighed its probative value. We disagree and uphold the trial court's admission of the instrument.

First, real evidence is admissible where (1) a witness is able to testify that the exhibit is "like" the item associated with the crime, and (2) there is a showing that the exhibit is connected to the defendant and the commission of the crime. Andrews v. State (1989), Ind., 532 N.E.2d 1159, 1162-63. The proponent of the evidence is not required to conclusively identify the item, and the lack of positive identification goes to the weight of the evidence, not its admissibility. Oglesby v. State (1987), Ind., 513 N.E.2d 638 (upholding admission of crowbar found six weeks after robbery), cert. denied, 485 U.S. 1037, 108 S.Ct. 1600, 99 L.Ed.2d 914 (1988).

In this case, Decker testified that the syringe offered into evidence at trial was like the one he had used to inject himself with cocaine and abandoned by the overpass. The syringe was connected to the defendant and the crimes charged not only by the fact that the police found the syringe at the described location but further by the observations of Officer Carney, who testified that he saw Evans and Decker stop at that overpass. While fabrication was a possibility, the defense was free to raise this question in the minds of the jurors on cross-examination, leaving them to discount the evidence according to their own perceptions of this threat.

Second, where the prejudicial nature of relevant evidence is slight, trial courts enjoy wide latitude in determining its admissibility. E.g., Hunter v. State (1991), Ind., 578 N.E.2d 353. Here, the syringe was not likely to lead the jury to decide the case on improper grounds, and the State rightly introduced the evidence to support Decker's claim that he was the user, not the dealer, in the transaction. The trial court did not abuse its discretion in admitting the syringe.

III. Admission of Decker's Prior Statements

Appellant claims that the trial court erred when it admitted a transcript of Decker's statement to the police after his arrest and his deposition taken by the defense. On cross-examination,...