Graham v. State, No. 1267

Docket NºNo. 1267
Citation253 Ind. 525, 255 N.E.2d 652
Case DateFebruary 26, 1970
CourtSupreme Court of Indiana

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.

[253 Ind. 527] 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

Page 653

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law of the State of Indiana regulating the possession and/or sale of heroin, one of the two such laws having been repealed by the 1963 Indiana General Assembly and the other such law having [253 Ind. 528] been abrogated by presidential decree on June 12, 1967.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,[253 Ind. 529] 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

Page 654

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[253 Ind. 530] 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...

To continue reading

Request your trial
97 practice notes
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Junio 1984
    ...failed in a duty to "show, by producing records or testimony, the continuous whereabouts of the exhibits," citing Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d We have held that "[t]he showing as to a proper chain of custody is only that reasonable assurance be provided that the exhibit ......
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1975
    ...the F.B.I., and returned them to the property room. We agree with appellant that the chain is not complete. In Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652, this Court noted that there must be a foundation connecting the evidence to the crime before the evidence will be admissible a......
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...of custody rule. The purpose of the rule is to prevent "tampering, loss, or mistake with respect to an exhibit." Graham v. State, (1970) 253 Ind. 525, 531, 255 N.E.2d 652, 655. The dangers posed by tampering, loss or mistake are that (1) similar or fungible items will be confused or comming......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Noviembre 1980
    ...where the articles in question are fungible articles susceptible to tampering or substitution. Appellant relies on Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d 652. That case involved a quantity of heroin that, of necessity, passed through several hands from the time it was taken from [......
  • Request a trial to view additional results
97 cases
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Junio 1984
    ...failed in a duty to "show, by producing records or testimony, the continuous whereabouts of the exhibits," citing Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d We have held that "[t]he showing as to a proper chain of custody is only that reasonable assurance be provided that the exhibit ......
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1975
    ...the F.B.I., and returned them to the property room. We agree with appellant that the chain is not complete. In Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652, this Court noted that there must be a foundation connecting the evidence to the crime before the evidence will be admissible a......
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...of custody rule. The purpose of the rule is to prevent "tampering, loss, or mistake with respect to an exhibit." Graham v. State, (1970) 253 Ind. 525, 531, 255 N.E.2d 652, 655. The dangers posed by tampering, loss or mistake are that (1) similar or fungible items will be confused or comming......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 Noviembre 1980
    ...where the articles in question are fungible articles susceptible to tampering or substitution. Appellant relies on Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d 652. That case involved a quantity of heroin that, of necessity, passed through several hands from the time it was taken from [......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT