Hauk v. State, No. 1--973A172

Docket NºNo. 1--973A172
Citation312 N.E.2d 92, 160 Ind.App. 390
Case DateJune 13, 1974
CourtCourt of Appeals of Indiana

Page 92

312 N.E.2d 92
160 Ind.App. 390
Milton C. HAUK, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1--973A172.
Court of Appeals of Indiana, First District.
June 13, 1974.

[160 Ind.App. 391]

Page 94

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?

[160 Ind.App. 392] (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---

[160 Ind.App. 393] COURT: Well, the tablet, I don't want to take it out of the container.

Page 95

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 [160 Ind.App. 394] 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

Page 96

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...

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26 practice notes
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1976
    ...information which supplied probable cause to suspect that the accused was engaged in illegal activities. Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Smith v. State, supra; Walker v. State, supra; Locklayer v. State, supra. In Indiana, the probable cause for 'baiting the trap' issue is a ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1892), 133 Ind. 1, 5, 32 N.E. 725; Wright v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to tender desired instructions or to make specific objec......
  • Lahrman v. State, No. 4-883A275
    • United States
    • Indiana Court of Appeals of Indiana
    • July 17, 1984
    ...78; Jones v. State, (1982) Ind.App., 435 N.E.2d 616, 621; Coleman v. State, (1980) Ind.App., 409 N.E.2d 647, 649; Hauk v. State, (1974) 160 Ind.App. 390, 394, 312 N.E.2d 92, 95. However, on at least two occasions our supreme court has reviewed allegations of judicial misconduct which had no......
  • Burgett v. State, No. 2--1173A240
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1974
    ...v. State (1970), 255 Ind. 47, 262 N.E.2d 515; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558; Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Coakley v. State (1972), Ind.App., 283 N.E.2d [161 Ind.App. 165] While the Prosecutor's reference to the stricken prior contradictory statement......
  • Request a trial to view additional results
26 cases
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1976
    ...information which supplied probable cause to suspect that the accused was engaged in illegal activities. Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Smith v. State, supra; Walker v. State, supra; Locklayer v. State, supra. In Indiana, the probable cause for 'baiting the trap' issue is a ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...v. State (1892), 133 Ind. 1, 5, 32 N.E. 725; Wright v. State (1975), Ind.App., 324 N.E.2d 835, 837; Hauk v. State (1974), Ind.App., 312 N.E.2d 92, 96; Berry v. State (1972), Ind.App., 287 N.E.2d 557, This principle, obligating a party to tender desired instructions or to make specific objec......
  • Lahrman v. State, No. 4-883A275
    • United States
    • Indiana Court of Appeals of Indiana
    • July 17, 1984
    ...78; Jones v. State, (1982) Ind.App., 435 N.E.2d 616, 621; Coleman v. State, (1980) Ind.App., 409 N.E.2d 647, 649; Hauk v. State, (1974) 160 Ind.App. 390, 394, 312 N.E.2d 92, 95. However, on at least two occasions our supreme court has reviewed allegations of judicial misconduct which had no......
  • Burgett v. State, No. 2--1173A240
    • United States
    • Indiana Court of Appeals of Indiana
    • August 1, 1974
    ...v. State (1970), 255 Ind. 47, 262 N.E.2d 515; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558; Hauk v. State (1974), Ind.App., 312 N.E.2d 92; Coakley v. State (1972), Ind.App., 283 N.E.2d [161 Ind.App. 165] While the Prosecutor's reference to the stricken prior contradictory statement......
  • Request a trial to view additional results

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