Garner v. State, 2--174A3

• Decision Date: 10 April 1975
• Docket Number: No. 2--174A3,2--174A3
• Citation: 325 N.E.2d 511,163 Ind.App. 573
• Parties: Merle T. GARNER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 511

325 N.E.2d 511

163 Ind.App. 573

Merle T. GARNER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--174A3.

Court of Appeals of Indiana, Second District.

April 10, 1975.

[163 Ind.App. 574] Robert E. Stewart, Danville, for appellant.

Theodore L. Sendak, Atty. Gen., Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-Appellant Merle T. Garner (Garner) appeals from a jury conviction of possession of a narcotic drug in violation of the 1935 Narcotics Act, claiming insufficient evidence to support the conviction, and failure by the trial court to suppress certain evidence and to order the State to reveal the identity of an informant.

We affirm.

FACTS

The evidence and facts most favorable to the State are as follows:

On or about December 13, 1972, Indianapolis Police Department officer John M. Sims (Sims) received information from a reliable informant that Garner was concealing bags of heroin behind a barber shop in the 500 block of Indiana Avenue, Indianapolis, Indiana.

Pursuant to the tip, Sims (wearing civilian clothes) and another officer conducted a stakeout of the area. Sims observed Garner disappear behind the building on several occasions and then return to the street side of the location and converse with various people.

Sims then situated himself behind the building and at 5:00 p.m. observed Garner reach into a pile of trash and withdraw a white Excedrin bottle. Sims, only twenty-five feet from Garner, identified himself as a police officer . . . even though they were acquainted as a result of past questionings.

Seeing Sims, Garner fled even though Sims ordered him to half and fired a warning shot. Sims gave chase, but Garner eluded him.

While fleeing, Garner stumbled and dropped the bottle and several tinfoil packages on the ground while Sims recovered and he immediately performed a field test on the brown powdery substance contained in the packages . . . the results of which indicated the presence of an opium derivative.

Sims took the bottle and tinfoil packets to Police Headquarters after which Dr. Phillips of the I.P.D. Crime Laboratory performed a complete analysis of the substance contained in the bottle and in the packages and determined it to be heroin.

Garner was apprehended and arrested two weeks later. He presented no evidence or witnesses at trial, but did object to the introduction of the Excedrin bottle and the packages into evidence on the ground that an unbroken chain of custody was not demonstrated. The jury found him guilty, and the court sentenced him to imprisonment for a period of not less than two (2) nor more than ten (10) years. Garner appeals.

ISSUES

ISSUE ONE. Did the trial court err by admitting into evidence the bottle and tinfoil packets of heroin obtained as incident to an unlawful arrest and an illegal search and seizure?

ISSUE TWO. Did the trial court err in refusing to order the State to disclose the identity of the informant?

ISSUE THREE. Is the evidence sufficient to sustain the judgment of and conviction for the illegal possession of a narcotic drug?

As to ISSUE ONE, Garner contends that the evidence should have been excluded because the State failed to establish the reliability or identity of the informant and the resulting arrest, search and seizure were therefore illegal.

The State responds that there was no arrest, search, or seizure and the bottle and the heroin packages were dropped by the fleeing suspect in plain view of the pursuing police officer, Sims.

As to ISSUE TWO, Garner contends that the State failed to show a substantial interest in nondisclosure of or risk to the informer's life.

The State argues that the informer provided only information concerning the location of the heroin . . . the guilt and identity of Garner was established by Sims' personal observation of the defendant's acts.

As to ISSUE THREE, Garner contends that the State failed to prove the possession of the narcotic with the requisite intent and knowledge thereof.

In response, the State contends that Garner's knowledge of the character of the drug and his intent to possess it may be inferred from the evidence establishing possession, a fact personally witnesses by Sims.

DECISION

ISSUE ONE

CONCLUSION--It is our opinion that Garner has waived the issue of the admissibility of the bottle and heroin packages dropped by him while fleeing the police because he failed at trial to object to the admission of the evidence on the ground that it was incident to an unlawful arrest or a product of an illegal search and seizure.

The record reveals that Garner objected to State's Exhibit No. 2 (the packets and Excedrin bottle) on two occasions and on each occasion his objection was that the State had failed to prove a continuous chain of custody of the evidence.

Not until he filed his Motion to Correct Errors did Garner argue that the evidence was illegally seized on the grounds that the search which produced his evidence was incident to an unlawful arrest.

Failure to object on the grounds argued on appeal constitutes a waiver and preserves no issue for this Court to determine. Recent decisions of the Indiana Supreme Court reinforce this well-established principle. See Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98, 99.

Justice Hunter reviewed the law on this subject in Guthrie v. State (1970), 254 Ind. 356, 260 N.E.2d 579, 582:

'The general rule was stated by Wigmore in his treatise on evidence to be as follows:

"Specific objection. A specific objection overruled will be effective to the extent of grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not: . . .'

1 Wigmore on Evidence, § 18, at 339--40 (1940). (Original emphasis.)

'The courts in this state have applied the rule on numerous occasions. See e.g. Automobile Underwriters v. Camp (1940), 217 Ind. 328, 27 N.E.2d 370; Michigan City v. Werner (1916), 186 Ind. 149, 114 N.E. 636; Stout v. Rayl (1896), 146 Ind. 379, 45 N.E. 515. Although we do not pass lightly on the question of appellant's constitutional right, neither are we ready to expand the scope of review in this court to include anything which appellant chooses to argue on appeal. The grounds of appellant's objections at trial being of a different nature than here urged on appeal, we need not pass on the validity of the argument now presented.' (Emphasis supplied.)

See also Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Hardin v. State (1970), 254 Ind. 56, 257 N.E.2d 671; Moore v. State (1970), 254 Ind. 23, 256 N.E.2d 907; Johnson v. State (1969), 252 Ind. 70, 245 N.E.2d 659.

Accordingly, the question of the trial court's admission into evidence of the packages of heroin and their container has been waived.

ISSUE TWO

CONCLUSION--It is our opinion that the trial court did not err in refusing to compel the State to disclose the identity of the informant.

If disclosure of the identity of an informant is relevant and helpful to the defense of an accused or is essential to the fair determination of a cause, disclosure is required unless the State shows a paramount interest in nondisclosure or an unwarranted risk to the life of the informant. See, Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814; Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.

However, we discern no relevancy in revealing the identity of the informant.

Sims testified that the informant's tip led to the surveillance of the area and specifically of Garner, but Sims also testified that he was previously acquainted with Garner from past questionings and was able to independently identify him from his own knowledge. Finally, the crime was committed by Garner in Sims' presence.

Thus, the Glover case on which Garner relies is inapplicable because the informant in Glover was used 'to help identify the appellant from a picture', thereby participating in establishment of the identity of the defendant. Strikingly similar, however, is McCulley v....