Ferguson v. State, 1285S503

• Citation: 485 N.E.2d 888
• Decision Date: 04 December 1985
• Docket Number: No. 1285S503,1285S503
• Parties: Harry FERGUSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 888

485 N.E.2d 888

Harry FERGUSON, Appellant, v. STATE of Indiana, Appellee.

No. 1285S503.

Supreme Court of Indiana.

Dec. 4, 1985.

Susan K. Carpenter, Public Defender, Rick Ranucci, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

CRIMINAL PETITION FOR TRANSFER

GIVAN, Chief Justice.

On March 16, 1977, appellant was convicted of possession of less than ten grams of heroin, a Class D felony. On March 26, 1982, appellant petitioned for permission to file a belated motion to correct error, which was granted. From a denial of his belated motion, appellant filed his appeal with the Court of Appeals raising two questions:

"I. Whether the evidence was sufficient to support the conclusion that Ferguson was in constructive possession of heroin?

"II. Whether Ferguson was denied effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution?"

The Court of Appeals reversed on the sufficiency issue and therefore did not address the second allegation of error. We grant transfer and vacate the Court of Appeals' decision reported at 481 N.E.2d 161 (1985).

The facts are: At 8:00, during the evening of November 11, 1976, Detective James Wurz, Sergeant Thomas Casey and other officers of the narcotics branch of the Indianapolis Police Department arrived at 2606 North College Avenue to execute a search warrant. The building at that address is known as the Sutherland Hotel. It consists of a lobby and five single hotel rooms on two floors, which are let at hourly rates. In the rear is a three-room apartment with access through a single doorway to the basement.

Upon arrival at the hotel, Detective Wurz went to the southwest corner of the building where the only entrance to the apartment was located. Sergeant Casey was in a position where he could see into the apartment through a window. Detective Wurz knocked on the door several times and announced that he was a police officer. Sergeant Casey observed a man wearing a maroon long-sleeved shirt and black trousers run past the window into the bathroom, where he remained for three or four seconds before running back past the window and disappearing through a doorway.

Detective Wurz attempted to force open the door but was unable to do so. The officers had to knock a hole in the wall with a sledgehammer in order to remove two two-by-fours barricading the door. Upon entering the apartment, they found the door through which appellant had passed led to a basement. The officers made an extensive search of the basement but found no one. The only door exiting the basement was the one through which they had come. However, there was a cold air duct large enough to allow passage to a human being. On the basement floor they found a tinfoil packet containing heroin. The basement floor was very dusty, but the tinfoil packet had no dust upon it. The inside of the air duct was also covered with dust; however, it was apparent that someone had recently been inside the duct.

Detective Wurz climbed through the air duct into the first floor hotel room. No one was in that room. When he knocked at one of the other doors in the hotel, appellant answered. He was wearing the same type of clothing that had been observed by Sergeant Casey as that being worn by the person running through the apartment. In addition the clothing was covered with the same type of dirt that was found inside the furnace duct.

The majority opinion of the Court of Appeals proceeds to weigh this evidence and find it to...