Filler v. State
| Decision Date | 23 June 1981 |
| Docket Number | No. 1-1280A345,1-1280A345 |
| Citation | 421 N.E.2d 1146 |
| Parties | Kenneth FILLER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
This is an appeal by defendant-appellant Kenneth Filler (Filler) from a decision of the Shelby Superior Court revoking his probation. Filler had been placed on probation for two years following his convictions of escape, a Class D felony, and criminal recklessness, a Class A misdemeanor, for which he received suspended sentences of two years and one year respectively.
We affirm.
On May 29, 1979, the Shelby Superior Court entered a judgment sentencing Filler to two years imprisonment for escape, a Class D felony, and one year imprisonment for criminal recklessness, a Class A misdemeanor. The court suspended both sentences and placed Filler on probation for two years on the conditions that Filler behave well, incur no violations of the law, and make restitution. On February 7, 1980, a petition to revoke the suspension and probation was filed, alleging that on September 11, 1979, Filler committed two criminal offenses consisting of two sales of a controlled substance, namely lysergic acid diethlamide (L.S.D.). A hearing was held on the petition and the following evidence most favorable to the decision was presented relative to the violation of probation.
Detective Sergeant Robert Schuler, with the aid of a confidential informant, Bobby Cash, was conducting an undercover drug investigation in Decatur County. Schuler became aware of Filler through one Fred Baltus, a suspected drug dealer. On September 11, 1979, Schuler and Cash attempted to purchase drugs from Baltus, but Baltus had none at the time and referred them to Filler. Filler was contacted through Baltus, and all four men, Schuler, Cash, Baltus, and Filler, went to Baltus' house. There, the illicit drug transaction was consummated wherein Filler sold Schuler 12 pills containing L.S.D. for $24. The four talked for another 15 or 20 minutes, and upon parting, Schuler purchased another two pills containing L.S.D. for $4. The men had spent a little more than two hours together. Filler was charged with the sales in the Decatur Circuit Court, and these sales formed the basis of the revocation of probation petition.
The issues presented for review on this appeal are asserted by Filler as follows:
I. Whether the court erred in permitting two witnesses to identify Filler in court where Filler filed a Motion for Lineup which was granted by the court but never conducted;
II. Whether the court erred in admitting evidence concerning identification of controlled substances, and erred in admitting said substance, where there was not a complete chain of custody III. Whether the evidence was insufficient to establish the sale of L.S.D., where there was no proper foundation for identification of the substance sold and the tests conducted were inadequate to establish that the substance was in fact controlled;
IV. Whether the court erred in denying Filler's motion for a continuance to call a necessary witness, Fred Baltus, where said witness' failure to appear surprised defense counsel; and
V. Whether the court erred in refusing to admit polygraph test results offered by Filler.
Issue I. Denial of pretrial lineup
Filler claims the trial court erred in permitting, over timely objection, the in-court identification of Filler by Schuler and Cash. Prior to the hearing the court had granted Filler's motion for a line-up. Insomuch as Filler had already been charged, arrested, and identified, the evident purpose of the line-up was to test the reliability of Schuler's and Cash's identifications. The line-up was never conducted because, according to the prosecuting attorney, Filler could not be found to participate in it. Filler made no pretrial attempt to enforce the ruling.
Filler has cited no authority for the proposition that an accused has a right to have a pretrial line-up conducted to test the perception of the identification witnesses. The cases relative to pretrial lineups as well as other pretrial identification procedures are generally concerned with impermissibly suggestive pretrial procedures alleged to taint the in-court identification. That, of course, is totally absent here. The cases hold that regardless of error in pretrial identification procedures or their suggestiveness if there is sufficient basis for identification independent of the pretrial procedure, there is no error in permitting the in-court identification. See, e. g., Long v. State, (1979) Ind., 385 N.E.2d 191; Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193; Bennett v. State, (1981) Ind.App., 416 N.E.2d 1307. To determine whether an independent basis for the in-court identification exists a "totality of circumstances" standard is used. Young v. State, (1979) Ind., 395 N.E.2d 772.
September 11, 1979, Schuler and Cash met Filler and Baltus and spent a little more than two hours with him in broad daylight. We conclude that a sufficient basis exists for the court to allow an in-court identification. Filler claims that the prior contact between himself, Schuler, and Cash occurred eight months prior to the hearing at which the in-court identifications were made, that on this occasion Schuler and Cash were drinking, and that the contact was relatively brief. He appears to contend that these circumstances are such as to render the basis for the identifications insufficient to support the in-court identification. We disagree. These factors go to the weight to be given the testimony and not its admissibility. There was no error committed by the court in allowing the in-court identification.
We further note that Filler does not, in his testimony or his version of events, really challenge that he was with Schuler and Cash, or was the person involved. His entire defense was that Baltus, and not he, conducted the sale of the L.S.D. and received the money. We see no prejudice to Filler's case.
Issue II. Chain of custody
At trial, State's Exhibits No. 1 and No. 2, the tablets seized at the time of the sale, were admitted into evidence. George Smith, a chemist at the State Police Laboratory, testified that four tests were conducted on the pills which indicated the presence of L.S.D. In this issue, Filler contends that these exhibits and Smith's testimony relative to his findings were improperly admitted into evidence because the State failed to establish a proper chain of custody of the physical evidence between the time the items were seized and the time the tests were conducted.
Facts adduced at trial reveal that on September 14, 1971, after Schuler seized the pills, he mailed them in a sealed package by certified mail, return receipt requested, to the State Police Laboratory for testing, and later received a green card attesting to the receipt of the package by the laboratory. Smith received the package on September 17, 1979, but he was not the person who acknowledged receipt on the green card. At the time Smith received the package, the seal was intact and the package bore the certified mail numbers. Neither the person who signed for the package nor any intermediate handler or handlers of the package testified as to the custody of the package during the time between receipt and delivery to Smith.
We think Gilliam v. State, (1978) Ind., 383 N.E.2d 297, a case very similar on its facts relative to this issue, is dispositive. There the court said:
"Appellants challenge the admissibility of the two tin foil packets of heroin on the grounds of an allegedly inadequate chain-of-custody.
Sergeant Schultz placed the packets in his packet after appellant Braxton gave them to him. After leaving the Braxton house he placed them in a plastic envelope sealed with 'evidence tape' which disintegrated upon removal. Schultz wrapped the envelope for mailing and sent it by registered mail to the State Police laboratory in Indianapolis. The chemist who analyzed the heroin testified...
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