Grayson v. State
| Decision Date | 08 June 1992 |
| Docket Number | No. 48A02-9110-CR-482,48A02-9110-CR-482 |
| Citation | 593 N.E.2d 1200 |
| Parties | Sam GRAYSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 |
| Court | Indiana Appellate Court |
William D. McCarty, Anderson, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
A jury found defendant-appellant Sam Grayson guilty of dealing in cocaine, a Class B felony. 2 It also concluded Grayson was a habitual offender. 3 The trial court sentenced Grayson to ten years' imprisonment on the cocaine charge and enhanced the sentence by an additional 30 years because of Grayson's habitual offender status. Grayson appeals, raising the following issues for our consideration:
I. Whether the prosecution adduced sufficient evidence that the substance Grayson sold was a prohibited form of cocaine.
II. Whether Grayson received ineffective assistance of counsel.
III. Whether the trial court erred in refusing to allow the jury to rehear a portion of Grayson's testimony.
IV. Whether the prosecutor engaged in misconduct and thereby denied Grayson a fair trial.
V. Whether the trial court improperly denied Grayson credit for pretrial detention time.
We affirm and remand for a determination of pretrial detention credit.
The evidence most favorable to the verdict shows that in January of 1990 an individual approached the Anderson Police Department and offered his services as a confidential informant (the C.I.). The offer was accepted. Over the next eleven months the C.I. made between 30 and 35 controlled buys. Two of these involved Sam Grayson.
The first occurred on August 26, 1990. After being searched, given money, and wired with a concealed microphone, the C.I. went to the home of Gladys Woods and asked her if she had cocaine for sale. He entered her home and saw Grayson smoking cocaine. Grayson offered to sell 40 dollars' worth of the drug to the C.I., who accepted.
Three days later the C.I. again met with Anderson police officers, and was again searched, given money, and fitted with a concealed microphone. The C.I. met Grayson outside a local tavern and purchased 50 dollars' worth of cocaine from him.
On both occasions the C.I. turned the purchase over to the police who subsequently tested it and identified it as cocaine. Grayson was arrested and convicted by a jury for his participation in the August 29th transaction.
Grayson claims the evidence failed to establish that the substance he sold was a prohibited form of cocaine. He relies on an elaborate strategy known as the "cocaine isomer defense." 4
When reviewing a challenge to the sufficiency of the evidence, we do not reweigh evidence or reassess the credibility of witnesses. Byrd v. State (1991), Ind.App., 579 N.E.2d 457, 465. We consider only that evidence favorable to the verdict, together with all reasonable and logical inferences derivable therefrom. Id. If there is substantial evidence of probative value, we will not disturb the verdict. Id.
The evidence here shows that Steven First, a chemist for the Anderson Police Department with nine years' experience, analyzed the substances Grayson sold to the C.I. He conducted five spot tests to determine the presence of major drug groups. He then submitted the sample to ultra-violet spectroscopy, gas chromatography, and infra-red spectrophotometry tests which positively identified the substance as cocaine. Officer Faust testified that the area in which the transaction occurred was a known drug area. The two prices the C.I. paid, $40 and $50 per rock of cocaine, comport to the drug's standard values. The C.I. testified he was a former cocaine user thoroughly familiar with the drug and knowledgeable about "how it was being sold, how it was coming in, who was doing it, who was using and who was selling." Record at 209. He testified Grayson sold him cocaine. Based on this evidence, the jury obviously could reasonably conclude the substance Grayson sold the C.I. was cocaine. There was sufficient evidence adduced to warrant a finding that the substance Grayson sold was cocaine.
The claim that the prosecution failed to prove the substance possessed or sold was a prohibited form of cocaine has repeatedly failed. "Although the government has the burden ... of proving every element of the offense charged, it has no burden of proving that a term used in its commonly understood sense has no other possible meaning--at least until the possibility of another meaning is raised by the defense." United States v. Puglisi (2nd Cir.1986), 790 F.2d 240, 242, cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed.2d 55 (citing United States v. Francesco, supra, at 821). See also Schlobohm, supra, 157 Ill.App.3d at 95, 109 Ill.Dec. at 425, 510 N.E.2d at 46 (), and Thomas, supra, 565 A.2d at 1337 (). Grayson's sufficiency of the evidence claim fails. 5
Grayson next contends he was denied his Sixth Amendment right to effective assistance of counsel.
We review ineffective assistance of counsel claims under the two-step process first articulated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under this test, we first look to see whether counsel's performance was deficient; a strong presumption exists, however, that it was not. If we do find counsel's performance to be outside the wide range of professional competence, we then look to see whether the defense was prejudiced by the deficient performance. Id. We will not speculate about what may have been a more advantageous strategy, and isolated bad tactics or inexperience do not necessarily amount to ineffective assistance. Gann v. State (1991), Ind.App., 570 N.E.2d 976, 978, trans. denied; Berry v. State (1990), Ind.App., 561 N.E.2d 832, 839.
Grayson bases his ineffective assistance claim on his trial counsel's failure to object to the absence of foundation supporting the chemist's testimony. At trial, however, Gray defended himself by claiming he was not present for the first buy, and although he was in the general locale of the second sale, he was not the one who sold the substance to the C.I. Grayson did not claim the substance the C.I. purchased was not cocaine.
The choice of defenses is a matter of trial strategy. We will not fault trial counsel for refusing to argue that Grayson was not the individual who sold the cocaine to the C.I., but if it was Grayson who sold it, the substance wasn't cocaine. Grayson was much more likely to prevail using a defense that claimed either he was not the seller or the substance was not cocaine. Trial counsel reasonably chose the former as a matter of strategy. We refuse the invitation to speculate that the latter may have been more fruitful. We note any objection to a lack of foundation concerning the chemist's testing procedures would only have called added attention to the nature of the drug and would have been easily rectified by a preliminary question. The choice to downplay the identification of the substance was a reasonable tactic which we will not second guess. Grayson's trial counsel was not ineffective for failing to object to the lack of foundation preceding the chemist's testimony.
Grayson argues the prosecution committed misconduct by asking certain questions during Grayson's cross-examination, depriving him of a fair trial. Specifically, Grayson directs our attention to the following exchange:
Record at 505-06. Grayson argues the prosecutor's questions denied him a fair trial by suggesting he went to trial solely to reveal the identity of C.I. # 8921 so that the C.I. would be "taken care of," i.e., killed.
We note initially that because no objection was made to the prosecutor's questions the issue has been waived on appeal. Haynes v. State (1980), Ind.App., 411 N.E.2d 659, 665-66. Notwithstanding the waiver, Grayson is not entitled to reversal on this issue, because he has failed to show prejudice stemming from the prosecutor's misconduct.
"A prosecutor must have a reasonable basis for asking a question designed to impeach a witness on collateral matters." Id. at 665. Improper matters cannot be introduced by means of a question that contains an unsubstantiated assertion of fact. Id. Here, the state concedes there was no reasonable basis for the prosecutor's questions about Grayson's motive in proceeding to trial. The state is correct in asserting the error is harmless, however.
Errors which do not affect the substantial rights of the parties are to be disregarded. Ind.Trial Rule 61. In other words, Grayson must demonstrate a resultant prejudice. Telfare v. State (1975), 163 Ind.App. 413, 324 N.E.2d 270. This he has not done. The issue at trial was whether Grayson sold cocaine to the C.I., not Grayson's motive to testify. After reviewing the record as a whole to determine the probable...
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