Grzesiowski v. State

• Decision Date: 09 March 1976
• Docket Number: No. 1--475A69,1--475A69
• Citation: 168 Ind.App. 318,343 N.E.2d 305
• Parties: Richard Jan GRZESIOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 305

343 N.E.2d 305

168 Ind.App. 318

Richard Jan GRZESIOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--475A69.

Court of Appeals of Indiana, First District.

March 9, 1976.

John D. Clouse, Evansville, for appellant

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

This is an appeal from a conviction by a jury for the offense of delivery of marijuana in violation of Burns § 10--3559c(d)(10) (IC 1971, 35--24.1--2--4) and Burns § 10--3561i(c) (IC 1971, 35--24.1--4.1--1).

ISSUES

The issues of this case will be hereinafter treated separately as argued in appellant's brief.

FACTS OF THE CASE

On February 22, 1974, the Evansville police had information there was marijuana On the date and place Detective Brinkley was in charge and was in communication with undercover agents in the house by means of a body surveillance protection kit.

to be sold and delivered by the appellant-defendant (Defendant) that day.

Officers Harold Chaffin, Sgt. Bray and James Atherton assisted in the raid. When Chaffin arrived at 828 Washington Avenue Detective Brinkley had been admitted into the house by Gary Anderson, an undercover agent, who, along with a fellow undercover agent, John Garrigan, had already gained admission into the home to make the buy.

When Brinkley entered the residence he observed in plain view on the kitchen table a small quantity of marijuana. He then proceeded into the room where the occupants were and observed a large quantity of marijuana being prepared for delivery and also the Defendant counting $2,200 in cash he had been paid for twenty-five pounds of marijuana. Brinkley, after seeing this, informed the five or six people in the house, other than Garrigan and Anderson, they were under arrest. The marijuana was then confiscated and marked for identification and the $2,200 recovered. Brinkley then telephoned Captain Seng, told him what had happened, and told him to get a search warrant. The warrant was secured and brought to the premises and a search was made under the authority thereof. Large quantities of marijuana were found, together with smoking paraphernalia. The information on which the affidavit had been signed was that Detective Brinkley had personally observed a large quantity of a green leafy substance at that address.

VERDICT AND JUDGMENT

Defendant was found guilty of delivery of a controlled substance and punishment was assessed at imprisonment for five years and no fine. The court duly entered judgment on the verdict accordingly after the filing of the pre-sentence investigation report.

DISCUSSION

Specification of error number 1(a) was that the court erred in overruling defendant's motion to dismiss Count II which was the Count defendant was tried on.

Defendant urges that he was arrested without a warrant and the Superior Court made no finding of probable cause; that a probable cause hearing is necessary even though there had been an 'on sight' arrest.

Defendant states there may have been a single finding of probable cause during the hearing on the preliminary charge pursuant to IC 1971 35--4--1--1, Burns § 9--704a which he contends is unconstitutional.

Our Supreme Court held in Sanders v. State (1972), 259 Ind. 43, 284 N.E.2d 751, at 755, that:

'. . . The record before us does not reveal whether probable cause for appellant's arrest did or did not exist. The record does indicate that appellant was brought before the judge in City Court and preliminarily charged pursuant to IC 1971, 35--4--1--1, (Ind.Ann.Stat. § 9--704a (1956 Repl.)). Implicit in the language of that statute is that probable cause for the arrest and the preliminary charge must exist. After hearing the nature of the charge and the facts surrounding it, including the defendant's explanation of the incident, the judge is required to rule as to whether the defendant should be discharged or committed to confinement for a period not exceeding seven days. In the present case, the judge apparently determined that commitment was justified.' (Our emphasis.)

In the case at bar the Defendant was brought before the City Court of the City of Evansville on a precharge affidavit filed pursuant to IC 1971, 35--4--1--1, supra and the order book entry of February 25, 1974, concerning Count II of the information shows that the Defendant waived a hearing and was committed for seven days. As in Sanders, supra, the City Judge apparently found probable cause.

Thereafter, the State filed in open court its information charging the Defendant, and issued the warrant for his arrest. IC 1971, 35--3.1--1--1, Burns Ind.Ann.Stat. § 9--903(d) states in pertinent part that:

'. . . Whenever an information is filed and the defendant has already been arrested or otherwise brought within the custody of the court, the court shall proceed to determine whether probable cause existed for the arrest of the defendant unless the issue of probable cause has previously been determined by a court issuing a warrant for the defendant's arrest or by a court holding a preliminary hearing after the defendant's arrest.' (Our emphasis.)

The Defendant had already received a preliminary hearing on probable cause, which hearing the Defendant waived. At that hearing he was apprised of the nature of the charge and advised of his constitutional rights, and the preliminary charge affidavit was filed. We are of the opinion that the State complied with the statutory requirements as to the arrest warrant and the finding of probable cause in so issuing it and that the trial court did not err in overruling Defendant's motion to dismiss.

The Defendant also urges that the penalty provisions under which the Defendant was sentenced is unconstitutional in that the penalty provisions draw no distinction between narcotic drugs and other controlled substances classified in Schedule I, II, and III and therefore are not proportioned to the nature of the offense. For that contention the Defendant cites no relevant Indiana authority. The State would argue that it is clearly within the sole power of the Legislature to fix the punishment for crimes and this court may neither rewrite the statute nor substitute a judicially determined sentence for a legislative sentence. IC 1971, 1--1--2--2 Burns Ind.Ann.Stat. § 9--2401. This court said in Clark v. State (1974), Ind.App., 311 N.E.2d 439 at 440:

'Moreover, the courts may not judicially alter the punishment provided by statute even if it seems excessive or inappropriate.'

See also McHaney v. State (1972), 153 Ind.App. 590, 288 N.E.2d 284; Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230.

We are of the opinion that the statute was constitutional and the trial court correctly overruled Defendant's motion to dismiss.

Part (b) of the specification of error is that the court erred in overruling Defendant's motion to quash the search warrant and suppress the evidence. Defendant charges that all things seized, and more especially the marijuana and drug paraphernalia found at 828 Washington Avenue, should be suppressed and assigns eleven separate reasons for the same.

We have determined from a careful review of the record that the objections to specifications 1, 2, 3, 4, 5, and 7 were not well founded. The rest and remaining specifications have been closely scrutinized and from which we have determined that the court correctly overruled the motion to suppress the evidence and that the arrest of the Defendant was valid.

Specification 4(e) of the motion to correct errors is that the court erred in overruling the objection of the Defendant to the introduction into evidence of State's Exhibits 2, 3, 4, 5, 6, part of 7, and 10 and admitting said exhibits into evidence.

State's Exhibits 2 through 5 are bags of marijuana which were found in plain view in the living room of the dwelling and were seized by Detective Brinkley immediately after he arrested Defendant. State's Exhibits 6, part of 7, and 10 were taken pursuant to a search warrant after entry had been made, Defendant arrested, and State's Exhibits 2 through 5 seized. Exhibits 7 and 9 were narcotics paraphernalia and number 8 was not offered. The court refused to admit number 9 and that part of number 7 which was a narcotics smoking pipe. All materials admitted in the exhibits were bags of marijuana, except Exhibit 10 which was a plastic bag containing three envelopes and a receipt.

Defendant contends that Brinkley's entrance was unlawful in that he failed to knock, announce his identity and purpose before seeking admission and that his failure so to do renders the seizing of evidence within the dwelling unlawful, thereby making it inadmissible at trial. Further, that the failure to first knock, announce their purpose and authority was a violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 11 of the Indiana Constitution. Defendant relies for his authority on the case of State v. Dusch (1972), 259 Ind. 507, 289 N.E.2d 515. Our Supreme Court reasoned in Dusch, supra, in interpreting Ker v. California (1964), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, as follows:

'It is important to note that under both of these opinions the type of exigent circumstances which justifies the breach of a knock and announce requirement are those which are particular to the facts of the case. . . . The Clark opinion allows activities and circumstances occurring sometime before the search to bear on the announcement requirement. Under both approaches, however, the focus is on the particular situation encountered by the police in a certain case which lead them to reasonably conclude that to announce their authority would be a useless gesture or would result in personal injury.' (Our emphasis.)

In the case at bar Gary Anderson, one of the informers, was in the house acting as an undercover agent. He and his associate had gained peaceful and...