Everroad v. State

• Decision Date: 14 December 1982
• Docket Number: No. 181S23,181S23
• Citation: 442 N.E.2d 994
• Parties: Garnet D. EVERROAD, Danny J. Henning, Mark A. Smith, Nancy Calender, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 994

442 N.E.2d 994

Garnet D. EVERROAD, Danny J. Henning, Mark A. Smith, Nancy Calender, Appellants, v. STATE of Indiana, Appellee.

No. 181S23.

Supreme Court of Indiana.

Dec. 14, 1982.

Colman & Loftman, Bloomington, for appellants.

Linley E. Pearson, Atty. Gen., Margarett L. Knight, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellants were jointly tried and convicted in a jury trial in the Brown Circuit Court on July 18, 1980. The following convictions and sentences were handed down: Nancy Calender, Conspiracy to Deal in a Controlled Substance, Ind.Code Sec. 35-41-5-2 (Burns Repl.1979) and Ind.Code Sec. 35-48-4-2 (Burns Supp.1982), six (6) years and a fine of one dollar ($1.00); Possession of Cocaine, Ind.Code Sec. 35-48-4-6 (Burns Supp.1982), two (2) years, sentences to run concurrently; Danny J. Henning, Conspiracy to Deal in a Controlled Substance, fourteen (14) years and a fine of five thousand ($5,000) dollars; Possession of Cocaine, five (5) years, sentences to run concurrently; Mark A. Smith, Conspiracy to Deal in a Controlled Substance, six (6) years; Possession of Cocaine, two (2) years, sentences to run concurrently; and Garnet D. Everroad, Conspiracy to Deal in a Controlled Substance, ten (10) years and a fine of five thousand ($5,000) dollars; Possession of Cocaine, five (5) years, sentences to run concurrently; and Possession of Methaqualone and Marijuana, Ind.Code Sec. 35-48-4-6, (Burns Supp.1982) and Ind.Code Sec. 35-48-4-11 (Burns Supp.1982), two (2) years, to be served consecutively to the previous sentences. Appellants now appeal.

Six issues are raised by Appellants, concerning:

1. whether the trial court erred in denying Appellants' motion for continuance made on July 2, 8, and 9, 1980;

2. whether the trial court erred in failing to find that Danny J. Henning was entrapped;

3. whether the trial court erred by admitting into evidence certain items since chain of custody has not been established;

4. whether the trial court erred in denying Appellants' motion to compel discovery;

5. whether there was sufficient evidence to convict Appellants; and

6. whether the trial court erred in overruling Appellants' motion to suppress evidence.

On February 13, 1980, members of the Indiana State Police and the Greenwood Police Department had undercover agents in the Narcotics Division in the Greenwood area. Members of the Greenwood Police Department contacted the Indiana State Police Department, indicating they needed some help in locating a possible two-hundred (200) pounds of marijuana. Detective Sergeant Douglas M. Sheets, of the Indiana State Police, was at that time working with Sergeant Roy Waddell, also of the Indiana State Police, in the Greenwood area. That same day, Sergeant Dyne, of the Greenwood Police, contacted an informant, Leo Smith, to purchase marijuana. Informant Smith contacted Dennis Allen Hestand, who later was charged as a co-conspirator in this cause and who entered a plea of guilty to conspiracy in dealing in a controlled substance, namely cocaine, a class B felony. Hestand did not know anyone else was involved when first contacted by informant Leo Smith. As far as Hestand knew, the marijuana was for Leo. Hestand then called defendant Danny J. Henning at his home, thinking Henning might be able to help him. He thought he could trust Henning as he had known him since about the fourth grade and Hestand and Henning had gotten "high" together on marijuana and "coke" in the past. Henning told Hestand that he could not furnish marijuana but after two or three telephone conversations with Hestand, Henning told Hestand he could furnish cocaine. Leo Smith and Officer Sheets then met Hestand at Green Acres Tavern in Greenwood, Indiana, at approximately 4:30 p.m. on February 13, 1980. Officer Sheets mentioned a kilo of cocaine and Hestand said he could do more than a kilo if Sheets had the money. Apparently Hestand had been told by Henning that more than a kilo was available. Officer Sheets had been advised by Hestand that he had contacted his source for cocaine and his source would meet them at Green Acres Tavern at 7:00 p.m. Sheets and Hestand did meet Danny J. Henning at Green Acres Tavern in Greenwood at 7:00 p.m. on that day, February 13, 1980. Henning arrived at 7:10 p.m., carrying a plastic sandwich bag containing a white powder which he produced when Officer Sheets asked him if he had the "tester." The bag contained an ounce of white powder. Officer Sheets tested the powder and found it was cocaine. Henning then took back the bag of cocaine. Henning stated he could not "do" a kilo but he could "do" a pound. The only previous discussion as to how much would be delivered was the statement by Hestand to Sheets that he could get more than a kilo if he had the money. After discussing the money and setting a price at $28,000, a deal was made at the Green Acres Tavern.

Sheets and Henning then agreed to meet at Sambo's restaurant in Franklin, Indiana, at 10:00 that night. Henning wanted Hestand to be present also. Sheets was not advised as to where Henning was going to get the pound of cocaine. Henning arrived at Sambo's a little after 10:00 p.m., drove around the parking area and left. About ten minutes after 10:00, he came back, parked next to Sheets in Sambo's parking lot and told Sheets there was a State policeman parked on the north side of the restaurant. Sheets got into the car Henning was driving. Henning said he did not have the "coke" with him but asked Sheets to follow him and they would take care of it. Henning said he had to go to his partner's house to get it and that Sheets could stay out on the street. Sheets agreed to this. Henning mentioned State Road 135. Sheets then followed Henning down some back roads to the town of Spearsville, where Henning stopped at a phone booth and made a phone call. This was about 11:10 p.m. When he came back he told Sheets they had the package and were ready to deliver. Sheets then followed Henning to a residence on Greasy Creek Road in Nashville, Indiana. Henning pulled into the drive at the residence and Sheets pulled in behind him and backed up to where he could look at the house. When he backed up, Sheets was looking straight at the house, at a back porch and what was later found to be the living room. Henning said he had to go to the house to get the package. Henning was wearing a light colored pullover shirt, Levis, and no coat. He walked to the back door of the house and was handed something by a tall individual. The person was of medium build and was not comparable to Everroad. Sheets said it could not have been Everroad. The person was comparable to Mark Smith, who was 6'7" tall.

When Henning came from the house he showed Sheets a plastic bag which contained white powder. Henning was within Sheets' sight at all times during this transaction. When Henning went up the hill he was not carrying anything and when he came to the car he was carrying the sack containing the white powder. They started to make the exchange for the money when, according to Sheets, Henning seemed to be "breaking" with both the package and the money. Sheets then identified himself as a State Police Officer and got the package which was introduced at trial as State's Exhibit I. It was later determined to contain cocaine. Henning grabbed the money and ran. Sheets started to get out of the car when he heard a gun shot and saw a flash from the house. Sheets determined someone was firing shots at him. This was between 11:00 and 11:30 p.m. Sheets then fired a shot toward Henning who was fleeing the scene on foot with the money. He also fired a shot toward the house. One of the surveillance units was down the road about a thousand yards away and two officers came to the scene. Sheets radioed police units and other police came to the scene. Police officers yelled at the residents in the house to surrender but received no response. The police then identified themselves over a p.a. system, advising the people in the house that they were police and advising them to come outside and throw out any weapons they had before coming out. No one came out at that time. The police then laid down covering fire and moved to surround the house. Again the police called for persons to come out but there was no response. Appellant Everroad came out on the porch but went back into the house. A minute later Appellant Mark Smith came out and was placed under arrest. Smith called for Everroad to come out and about three minutes later, Everroad came out of the door and was placed under arrest. Nancy Calender then came out and was also placed under arrest. It had been approximately twenty to thirty minutes from the time the police arrived until Smith first came from the house. Several police officers then entered the house to look for any other possible occupants. The police searched the house, including closets, for other occupants, but did not open drawers or search for controlled substances. The only occupants of the house were Appellants Everroad, Mark Smith and Nancy Calender. No one else was seen on the premises. When the police entered the residence, the family room was full of smoke from a stove in which there was smoldering material which appeared to be burned paper. There were five plastic bags containing white powder on the kitchen counter, there was a plastic bag on the family room floor and one on the kitchen floor, both containing white powder. A search warrant was obtained and other plastic bags about the home were found to contain a residue of cocaine. The facts also tended to show that this residence was the home of, and under the custody and control of appellant Everroad. He was the only person who lived there full time, but Nancy Calender had been his girl friend for approximately two years and he saw her two or three times a week. Along with Nancy, Everroad's sister and mother did all of his errands, all of his bill-paying, and took...