Gilliam v. State, 977S707

• Docket Nº: No. 977S707
• Citation: 270 Ind. 71, 383 N.E.2d 297
• Case Date: December 15, 1978
• Court: Supreme Court of Indiana

Page 297

383 N.E.2d 297 270 Ind. 71 Kenneth GILLIAM and Minnie Braxton, Appellants,
v.
STATE of Indiana, Appellee. No. 977S707. Supreme Court of Indiana. Dec. 15, 1978.

[270 Ind. 72]

Page 298

Geoffrey A. Rivers, Public Defender, Alan K. Wilson, Muncie, for appellants.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellants were convicted of unlawful dealing in a Schedule I controlled substance, (heroin). Ind.Code § 35-24.1-4.1-2(a) (Burns 1975) repealed October 1, 1977.

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Each appellant received a sentence of imprisonment for a determinate period of thirteen (13) years.

On appeal both appellants raise four issues in common:

(1) whether the trial court erroneously refused to order the pre-trial production of a witness from the state prison for defense interviewing;

(2) adequacy of the chain-of-custody foundation established for admission of the heroin;

(3) admissibility of evidence and propriety of questioning concerning previous sales of heroin by appellant Braxton;

(4) prosecutorial misconduct in alluding to "perjury" in final argument.

In addition, appellant Gilliam raises two issues relating only to himself:

(5) denial of a motion to dismiss the charging information; and

(6) sufficiency of the evidence of appellant Gilliam's guilt.

Booker Tyrone Braxton (Tyrone), the estranged husband of appellant Minnie Braxton, worked as an informant for Sergeant Douglas Schultz, a narcotics investigator for the Indiana State Police. On March 16, 1976, Tyrone went to Muncie with Schultz and another detective, Harris. They met appellant Braxton at a service station, and Tyrone told her they wanted to buy heroin. She made arrangements to meet them at her house in an hour to deliver three "buttons" of heroin for sixty dollars.

[270 Ind. 73] Appellant Gilliam was inside the station during the initial conversation outside. He and appellant Braxton were both observed talking on the station's public telephone before the arrangements for the sale were finalized, and he accompanied her when she emerged to complete the sale agreement and accept Schultz's money. Both appellants left the station in Gilliam's automobile which he drove.

About an hour later appellants met Tyrone and the detectives at appellant Braxton's house. They sat in the kitchen and conversed; appellant Braxton mentioned difficulties in obtaining the heroin. After ten or fifteen minutes of conversation, appellant Braxton produced three tin foil packets. She gave two to Schultz and kept one for herself. Upon analysis one of the packets proved to contain heroin; the other was not tested.

I.

During the period before trial Tyrone was serving a sentence for forgery in the Indiana State Prison in Michigan City. On April 12, 1977, six days before trial, the State served appellants with a list of witnesses, including Tyrone. On April 15, a Friday, appellants filed with the trial court a motion seeking to have the court order Tyrone's production for interviewing by defense counsel. Appellants also subpoenaed Tyrone to appear as their witness. On the morning of Monday, April 18, before commencement of the trial, argument was held on the motion and the trial court held that Tyrone would be produced the next day, and that defense counsel would be given an opportunity to interview him before he testified. The court noted that Tyrone was in the process of being discharged on the 18th.

Tyrone was produced the 19th. He was not called as a witness for the State, but testified for appellants. The thrust of his testimony was that no drug transaction had taken place, and that various portions of the detectives' testimony related impossible events.

On appeal it is urged that the trial court's failure to order Tyrone's immediate production on the morning of trial deprived appellants of a fair trial in that they were denied the benefit of Tyrone's knowledge of the prosecution evidence in the preparation of their defense. In the trial court, however, appellants rested their request for Tyrone's production on two entirely different bases: [270 Ind. 74] the need to preview and meet Tyrone's anticipatedly unfavorable testimony, and concern that if Tyrone were released from prison he might not appear at trial voluntarily. The trial court's ruling accommodated both of these asserted defense

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interests. The court assured appellants that Tyrone would appear and that an opportunity to interview him would be provided. Appellants asserted no interest in having access to Tyrone in order to develop evidence favorable to themselves through his cooperation with the defense, a factor no one seems to have anticipated. Appellants cannot fault the court below for failing to accommodate an interest which they never asserted before that court. Ortez v. State, (1975) Ind.App., 333 N.E.2d 838, and Dorsey v. State, (1970) 254 Ind. 409, 260 N.E.2d 800, cases in which the State concealed informants or sent them beyond the reach of the court's process, are relied on by appellants, but have no application here. The trial court's failure to produce Tyrone on the morning trial began did not deny appellants a fair trial.

II.

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 pocket 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 that he received the package still wrapped and bearing the registered mail receipt stub. The envelope within was still sealed with evidence tape. The chemist did not receive the package from the mail carrier; the receipt was signed by a lab technician, who apparently gave the package to a secretary who gave it to the chemist.

Appellants contend that since the secretary and technician who handled the evidence did not testify concerning their handling of the evidence, the chain-of-custody shown was incomplete. We believe that it was not. The purpose of the requirement that a chain-of-custody be shown is to eliminate the possibility of tampering, loss, or substitution of the evidence. Graham v. State, (1970) 253 Ind. [270 Ind. 75] 525, 255 N.E.2d 652. Here the possibility of tampering was precluded by the sealing of the envelope, that of loss or substitution by the recording of the registered mail number by both Sergeant Schultz and the chemist. These precautions give "reasonable assurance that the exhibit has passed through the various hands in an undisturbed condition," Guthrie v. State, (1970) 254 Ind. 356, 363, 260 N.E.2d 579, 584, and obviate any need for the testimony of the technician, secretary, and any postal employees who handled the sealed package in transit.

III.

Before trial appellants moved for and obtained an order In limine instructing the prosecutor to make no reference in the presence of the jury to any separate offenses committed by appellants, except convictions admissible to impeach the credibility of either accused who might testify.

During the direct examination of appellant Minnie Braxton, she detailed her history of heroin abuse and addiction: at the time of the alleged offense she had used heroin for one or two years and was addicted to its use; subsequently she sought treatment for her addiction and was no longer using heroin at the time of trial. She denied having handed over the...