Graham v. State

• Decision Date: 26 February 1970
• Docket Number: No. 1267,1267
• Citation: 253 Ind. 525,255 N.E.2d 652
• Parties: Anthony GRAHAM, Appellant, v. STATE of Indiana, Appellee. S. 150.
• Court: Indiana Supreme Court

Page 652

255 N.E.2d 652

253 Ind. 525

Anthony GRAHAM, Appellant, v. STATE of Indiana, Appellee.

No. 1267 S. 150.

Supreme Court of Indiana.

Feb. 26, 1970.

William C. Erbecker and James Manahan, Indianapolis, for appellant.

John J. Dillon (former Atty. Gen.), Richard V. Bennett (former Deputy Atty. Gen.), for appellee.

HUNTER, Chief Justice.

Appellant, Anthony Graham, was charged by indictment in two counts with possession and sale of heroin, a narcotic drug in violation of the 1935 Indiana Narcotic Act, as amended (§§ 10--3520, 10--3538). Trial was had to the court in the Marion County Criminal Court, Division Two, and appellant was found not guilty as to count one relating to the sale of narcotics, and guilty as to count two relating to the possession of same. Upon the timely filing of his motion for new trial, and the overruling thereof by the trial court appellant brings this appeal contending that (1) the finding of the court is not sustained by sufficient evidence, and (2) that the finding of the court is contrary to law.

The arguments set forth in the memorandum accompanying appellant's motion for new trial may be summarized as follows: (a) there is insufficient evidence to support the conviction of possession of narcotics, to-wit: heroin, because there was at least one unexplained break in the chain of custody of the seized narcotic which break precluded a finding that the white powder substance allegedly received by a 'buyer' from appellant was in fact the same white powder found to contain heroin in the police laboratory. (b) The finding of the trial court was contrary to law because there is no existing law of the State of Indiana regulating the possession and/or sale of heroin, one of the two such laws having been repealed by the 1963 Indiana General Assembly and the other such law having been abrogated by presidential decree on June 12, 1967. (c) The finding of the trial court was contrary to law in that it was reached in a manner contrary to the principles of law as applied to the facts and issues in the case.

Because of the holding we reach herein, our discussion of appellant's assignment of errors will be directed to arguments (a) and (b) only. A brief recitation of the facts revealed by the record follows.

On November 22, 1966, Sergeant William Owen of the Indianapolis Police Department met one Willie B. Williams, a known narcotics user, at 2:0o P.M. just west of Senate and Walnut Streets in Indianapolis. After a brief conversation between the two men, Williams made a telephone call to the appellant which phone conversation Officer Owen was able to hear. Owen testified that he heard Williams ask the person on the other end of the line if he had any heroin and the reply was 'yes'. After the phone conversation Officer Owen and Williams, along with a Lieutenant Jones and Sergeant Dora Ward of the Indianapolis Police Department Narcotics Squad, got into a panel truck and drove to the vicinity of the 2300 block of Parker Avenue.

Upon their arrival there, the officers searched Williams and then gave him a ten dollar bill which was intended to be used for the purchase of narcotics. Williams then got out of the truck and walked north on Parker Avenue.

At or about 3:00 P.M., the accompanying officers observed Williams entering the drugstore as planned at the corner of 23rd and Dearborn Street. Shortly before Williams went in, the officers had observed two men arrive at that location in a black Chevrolet. The two men, recognized by the officers as appellant and one Charles Hardister, entered the drugstore, went over and sat down at the soda fountain.

According to the testimony of Charles Hardister, he and appellant were sitting at the soda fountain drinking a coke when Williams came in and sat down next to them. The appellant, according to Hardister, asked Williams if he wanted a stick of gum and at the same time handed him 'a stick of chewing gum in a yellow wrapper and some money exchanged.' Williams gave the defendant 'paper money' and the witness left.

Williams testified that he received a Juicy Fruit chewing gum wrapper foil from the appellant which he took directly to the waiting police officers upon leaving the drugstore. The police officers met Williams at the panel truck, where they received from him the Juicy Fruit chewing gum wrapper which they noted upon opening the same that it contained a white powder substance wrapped in tin foil. All of the officers present initialed the tin foil wrapper at the scene whereupon it was placed in a manila envelope and taken to police headquarters at the City-County Building in Indianapolis.

Lt. Ward testified that when he returned to police headquarters he conducted a Marquees test on the white powder and then deposited it in the police department's property room. Although the test is used to determine whether or not opium is present in a particular substance, the record is unclear as to whether or not Officer Ward actually did determine that it was present in the powder in this case. In any event he did testify that such a test was preliminary in nature and inconclusive as to the existence or non-existence of narcotic substances.

All of the above-described events took place on November 22, 1966. The police for reasons which do not appear from the record did not arrest appellant for the offenses in question until January 4, 1967. In any event appellant expressly states in his brief that his appeal is not intended to raise any objection to the testimony regarding the occurrence or non-occurrence of the transaction which took place in the drugstore between appellant and Williams. Nor does he question the status of the items or their whereabouts from the time of the transaction until they were first deposited in the police department property room. Instead what appellant does contend is that there was a complete break in the chain of police custody of the Juicy Fruit Gum wrapper and its contents, unexplained by testimony at the trial, which prevents any finding that appellant was in possession of heroin as charged. Not only was there a break in the chain of custody between the time of defendant's possession of the chewing gum wrapper and the laboratory test of its contents, but there was also a second break which occurred between the execution of the laboratory test and the trial. Although no heroin was actually admitted into evidence at the trial, and we believe that conviction could be sustained without such admission, appellant seeks to exclude testimony relating to the results of the laboratory tests conducted by various state's witnesses, contending that whatever it was that was tested could not be shown to have come from his possession.

The chain of evidence method of identification is a widely recognized concept in both criminal and civil law. In most cases it is not possible to establish the identity of an exhibit in question by a single witness. The exhibit has usually passed through several hands before being analyzed or examined or before being produced in court. Certainly this is the case here. The record indicates that, from the time of the alleged 'buy' until the trial, the exhibit was handled by at least eight different property clerks who either received or released it from the police property room. In addition it was handled by at least three police officers at different times during the same period.

Under such circumstances as these it is necessary to establish a complete chain of evidence tracing the possession of the exact and orginal exhibit to the final custodian. If one link of the chain is entirely missing, the exhibit cannot be introduced or made the basis for the testimony or the report of an expert or officer. If the testimony of the state's expert witnesses as to the narcotic content of the white powder is sought to be offered at trial, then the state should be prepared to establish a 'chain of evidence' by either producing police custody records showing the same or by testimony of witnesses. This is not a new rule in Indiana but rather a shorthand recognition of the well-established evidentiary requirement that a foundation must be laid connecting the evidence with the defendant before it is admissible at the trial. Dixon v. State (1963), 243 Ind. 654, 189 N.E.2d 715; Smith v. State (1961), 241 Ind. 598, 172 N.E.2d 673; Neuwelt v. Roush (1949), 119 Ind.App. 481, 85 N.E.2d 506; Hall v. State (1928), 199 Ind. 592, 159 N.E. 420; Berry v. State (1919), 188 Ind. 102, 122 N.E. 324.

Although research reveals no Indiana cases which recite the phrase 'chain of evidence' or 'chain of possession' there is little doubt that the rule of law it represents prevails in this state. Especially is this true in the case of offenses such as the one before us where narcotics are involved. The danger of tampering, loss, or mistake with respect to an exhibit is greatest where the exhibit is small and is one which has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. The white powder in this case could have been heroin, or it could have been for example, baking powder, powdered sugar, or even powdered milk. The burden on the state in seeking to admit such evidence is clear. Unless the state can show by producing records or testimony, the continuous whereabouts of the exhibit at least between the time it came into their possession until it was laboratory tested to determine its composition, testimony of the state as to the laboratory's findings is inadmissible. For cases in other jurisdictions so holding see: United States v. Freeman (10th Cir. 1969), 412 F.2d 1181; United States v. Burris (7th Cir.1968), 393 F.2d 81; Williams v. United States (9th Cir.1967), 381 F.2d 20; Barquera v. State of California (9th Cir.1967), 374 F.2d 177; Novak v. District of Columbia (1947), 82 U.S.App.D.C. 95, 160 F.2d 588; Jemison...