Hauk v. State, 1--973A172

Decision Date13 June 1974
Docket NumberNo. 1--973A172,1--973A172
PartiesMilton C. HAUK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

Bob Good, Brunner, Brown & Brunner, Shelbyville, for appellant.

Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

This is an appeal by defendant-appellant Milton C. Hauk, from a conviction of sale of a dangerous drug, to-wit: Lysergic Acid Diethylamide, commonly known as LSD, in violation of IC 1971, 16--6--8--3 (Burns Code Ed.).

Hauk was charged by affidavit, tried by jury, found guilty, and sentenced to imprisonment for a period of not less than one (1) nor more than ten (10) years and fined $250.00.

Hauk presents four alleged errors for review upon appeal:

(1) Whether certain remarks by the trial judge concerning an LSD tablet prevented Hauk from having a fair trial?

(2) Whether the trial court erred in failing to instruct the jury on the crime of possession of a dangerous drug as a lesser included offense of sale of a dangerous drug?

(3) Whether the trial court erred in allowing the State to present certain rebuttal testimony?

(4) Whether the evidence revealed that the defendant was entrapped?

The facts most favorable to the State are:

Between December 1, and December 15, 1971, Joseph D. Hale, an Indiana State Police informer, was assisting the State Police in an investigation of drug traffic in the Shelbyville area. To that end, Hale became acquained with defendant-appellant Hauk and, prior to December 13, 1971, made two police supervised drug purchases from Hauk. On December 13, 1971, Hale, accompanied by Indiana State Police detective Louis Cinko, went to Hauk's home in Shelbyville. Hale introduced Cinko as a friend, and they were invited in by Hauk. The three of them engaged in a general discussion concerning drug availability in the Shelbyville area, narcotics agents, and police. During this conversation Hauk ironically boasted that some of the most incompetent narcotics agents in the State were those of the State Police and that there wasn't a 'narc' in the world that could 'bust' him because he was too 'slick' for them. At this point, detective Cinko asked Hauk if he knew any place where he (Cinko) and Hale could buy some marijuana or hash. Hauk replied in the negative but added that he had two tablets of 'white acid' for sale if either Cinko or Hale were interested. Cinko purchased these two tablets for $3.00. Later chemical analysis showed these tablets to be LSD.

ISSUE 1.

The record reveals the following exchange during the State's presentation of evidence:

'MR. LUX: State offers into evidence State's Exhibit No. 1.

MR. GOOD: I have no objection to the tablet itself, Your Honor, but the notations on the container are (inaudible) in my judgment---

COURT: Well, the tablet, I don't want to take it out of the container.

MR. GOOD: Well, let's have them put it in something else then because that's prejudicial.

COURT: (Iaudible).

MR. LUX: Everything has been testified to that's on there. Everything that is on there has been testified to. He most certainly did. Officer Cinko testified to that.

MR. GOOD: That's a conclusion.

COURT: All right. (Inaudible) Do you have something, a little box?

COURT REPORTED: No. Oh, wait a minute. I do.

COURT: Well, it makes--you can put it in a box to exhibit it to the Jury if you will turn it around. Now, if that's LSD you can get it through your hands. I don't want anybody to have a fit including myself.

MR. GOOD: She's got another plastic case here that don't have anything on it.

COURT: All right. Then put it in that and show it to the Jury, and then we will put it back into his in case somebody else wants to--here you do it.

A. You want me to transfer it?

COURT: Yeah. You handle it.

A. It's not quite that dangerous.

(INAUDIBLE)

COURT: There. Keep that.

Q Now, based upon those tests--

COURT: You've offered into evidence--now, wait a minute. Let's get--State's Exhibit 1, you have no objections now?

MR. GOOD: No.

COURT: State's Exhibit 1 is introduced into evidence.

Q Based upon those tests that you testified to, do you have an opinion as to what State's Exhibit No. 1 is?

A Yes.

Q And what is that opinion?

A The material is LSD or lysergic acid diethylamide.

MR. LUX: The State now requests permission to exhibit State's Exhibit No. 1 to the Jury, Your Honor.

COURT: Don't--it's sorta small, don't let is get unhitched there.'

Hauk alleges that these remarks gave the jury the impression that a single tablet, encased in plastic, was so dangerous that it might cause physical harm to the jurors by simply touching it. This impression, according to Hauk, prevented him from having a fair trial. Nevertheless, Hauk failed to object to these remarks. He explains that this failure to object at the time the remarks were made was an effort to avoid offending the court and giving the matter more attention than it deserved. This explanation does not suffice.

In order to preserve for appeal, asserted error concerning improper and prejudicial remarks by a trial judge in the presence of the jury, an objection to the remarks must be made during the proceedings and before the jury retires for deliberation. A party may not sit idly by without making such objections, await the outcome of the trial, and then raise the issue. Moore v. State (1972), Ind.App., 290 N.E.2d 472. As shown in Coakley v. State (1972), Ind.App., 283 N.E.2d 392, counsel's belief concerning the futility of action after such remarks are made is an inadequate excuse. The Coakley court, citing Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558, said:

". . . (I)f . . . (the Defendant) thinks misconduct is of such a character that the damage cannot be repaired by any action of the court, the (then Defendant should) move to discharge the jury or take such other steps as he may think will secure to him a fair trial. If he fails to do this, and permits the case to proceed to final determination, he must be deemed to have waived all questions arising out of such alleged misconduct." 283 N.E.2d at 394.

Hauk's failure to take appropriate action to preserve this alleged error for appeal constitutes waiver of all questions arising from these remarks. We find no error under this issue.

ISSUE II.

Under this issue, Hauk alleges that the failure of the trial court to instruct the jury on the offense of possession of dangerous drug is reversible error. However, Hauk readily admits that he neither tendered an instruction on this subject nor objected to the trial court's failure to give such an instruction.

Dispositive of Hauk's contention is Ind. Rules of Procedure, Criminal Rule 8(B), which reads:

'The Court shall indicate on all instructions, in advance of the argument, those that are to be given and those refused. After the court has indicated the instructions to be given each party shall have a reasonable opportunity to examine such instructions and to state his specific objections to each, out of the presence of the jury and before argument, or specific written objections to each instruction may be submitted to the court before argument. No error with respect to the giving of instructions shall be available as a cause for wew trial or on appeal except upon the specific objections made as above required.' (Ephasis Added.)

Pursuant to this rule, since appellant did not object to the failure to give such instruction and failed to tender an instruction on the subject, he is precluded from raising this issue on appeal. Hunt v. State (1973), Ind., 296 N.E.2d 116.

ISSUE III.

Hauk next contends that the trial court erred in allowing the State to present certain rebuttal testimony. After the defense had rested its case, the State recalled Detective Cinko to rebut Hauk's testimony concerning the conversation during which the LSD was purchased from Hauk. Hauk had testified that the LSD that he gave Cinko had been purchased several days earlier by Hale and that Hauk was keeping the tablets for Hale. Hauk further testified that the LSD tablets were offered to Cinko only after Hale had requested Hauk to do so. Cinko rebutted this by stating that Hauk offered to sell the tablets to either Hale or Cinko and did not merely agree to give back the tablets Hale had previously purchased.

Appellant contends that Cinko's testimony was nothing more than a repetition of his prior testimony on direct-examination and as such was not proper rebuttal.

' Rebuttal evidence, is, as the name indicates, that which tends to explain or contradict or disprove evidence offered by the adverse party.' Layton v. State (1973), Ind., 301 N.E.2d 633, 636. The admissibility of rebuttal testimony is within the sound discretion of the trial court, even if the rebuttal testimony is related to a matter not in rebuttal:

'. . . We recognize that it is within the sound discretion of the trial court to permit was witness to testify during rebuttal regarding a matter which is not in rebuttal but is related to the State's case in chief, and the irregularity in so doing will not be treated as reversible error unless the defendant was prevented from presenting rebuttal evidence thereto. Griffith v. State (1959), 239 Ind. 321, 157 N.E.2d 191; Hollowell v. State (1971), Ind., 269 N.E.2d 755.' Trinkle v. State (1972), Ind.App., 288 N.E.2d 165, 168.

Appellant did...

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