Haynes v. State

• Decision Date: 27 October 1980
• Docket Number: No. 3-380A68,3-380A68
• Parties: George Q. HAYNES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 659

411 N.E.2d 659

George Q. HAYNES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 3-380A68.

Court of Appeals of Indiana, Third District.

Oct. 27, 1980.

Victor L. McFadden, South Bend, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Judge.

A jury found George Q. Haynes guilty of dealing in marijuana in an amount in excess of thirty (30) grams ¹ and possession of marijuana in an amount in excess of thirty (30) grams, ² both Class D felonies. The trial court, finding the possession charge to be a lesser included offense of the delivery charge, entered a judgment of conviction only for the greater offense, delivery of marijuana. ³ Haynes was sentenced to the Indiana Department of Correction for one year and was fined $100.00.

On appeal, Haynes raises two issues for our review:

(1) Did the trial court erroneously refuse to conduct an evidentiary hearing on Haynes' motion to suppress evidence?

(2) Did the trial court erroneously deny Haynes' repeated motions for mistrial based on the prosecutor's cross-examination questions which Haynes alleged prejudicially implied that he and his witnesses were guilty of unrelated and uncharged drug offenses?

We affirm.

I. Franks Hearing

Haynes contends that the trial court erroneously refused to conduct an evidentiary hearing on his motion to suppress evidence, which challenged the veracity of the probable cause affidavit used to procure a search warrant for his apartment. ⁴ Haynes cites Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, in support of his contention that the Fourth Amendment requires that a hearing be held to test the sufficiency of the probable cause affidavit. The relevant section of Franks provides "(W)here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request...."

438 U.S. at 155-56, 98 S.Ct. at 2676-77, 57 L.Ed.2d at 672.

Before addressing the merits of Haynes' contention, it is noted that the record shows that the trial court made an order book entry stating that a hearing was conducted on Haynes' motion to suppress evidence. Record at 57. This Court has recently held that "on appeal the record is conclusive and imports absolute verity." Minton v. State (1980), Ind.App., 400 N.E.2d 1177, 1179. The record contradicts Haynes' bare assertion that a hearing was not held on his motion. If Haynes believed the record to be inaccurate, his proper remedy would have been to file a petition for certiorari with the Court of Appeals under Ind. Rules of Procedure, Appellate Rule 7.2(C), and seek an order correcting the record. Haynes failed to follow this procedure. Thus, the record conclusively refutes Haynes' contention, and Haynes has failed to present a reviewable error.

Assuming arguendo that the trial court did not conduct a Franks hearing on Haynes' motion to suppress evidence and the record was properly corrected to reflect that fact, Haynes would nevertheless not have been entitled to a hearing. Franks requires a "substantial preliminary showing" that the challenged affidavit contains false statements before an evidentiary hearing should be granted. Justice Blackmun, writing for the majority, explained this requirement as follows:

"To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue." (Footnote omitted).

438 U.S. at 171-72, 98 S.Ct. at 2685, 57 L.Ed.2d at 682.

Haynes failed to support his challenge to the probable cause affidavit with reliable evidence establishing that the affiant, Sergeant Emmons, knowingly and intentionally falsified his probable cause affidavit. The trial court had before it only a conclusory statement in Haynes' motion that Emmons "fabricated portions of his testimony" and a brief discussion of Franks in a memorandum of law. Other jurisdictions have found such single sentence assertions of falsity to be insufficient to warrant a Franks hearing. United States v. Jeffers (5th Cir. 1980), 621 F.2d 221, 227; United States v. Giresi (D.N.J.1980), 488 F.Supp. 445, 461-62; United States v. Weingartner (D.N.J.1979), 485 F.Supp. 1167, 1181-83; People v. Anderson (1979), 74 Ill.App.3d 363, 30 Ill.Dec. 173, 392 N.E.2d 938, 944. We agree and find that Haynes failed to make a "substantial preliminary showing" that Emmons' probable cause affidavit contained false statements. ⁵ Thus, even if an evidentiary hearing was not conducted, the trial court's refusal to hear evidence on Haynes' contention of fabrication was not erroneous. ⁶

II. Cross-Examination

Haynes contends that the trial court erroneously denied his repeated motions for mistrial and objections to questions asked on cross-examination of his wife, Joann Haynes, and of him. Haynes argued that the factual predicate of several of the prosecutor's questions prejudicially implied that Haynes, his wife, and Danny Columbus, one of Haynes' witnesses, were guilty of unrelated and uncharged drug offenses. The rhetorical nature of the prosecutor's questions, Haynes asserted, placed before the jury extraneous matters which grievously imperiled Haynes' right to a fair trial.

The first allegation of improper cross-examination arose when the prosecutor questioned Mrs. Haynes about a moving vehicle violation that occurred on February 20, 1978. Mrs. Haynes stated on direct examination that the police stopped Haynes and her for allegedly driving with defective brakelights. No arrests or criminal charges resulted from this incident. On cross-examination, the prosecutor posed the following question about the incident to Mrs. Haynes:

"And, Mrs. Haynes, was it not a fact that there were five pounds of marijuana in your car at that time?"

Record at 341. Haynes objected to the question on the basis that the prosecutor was attempting to inject prejudicial evidence of extraneous acts of misconduct into the case. The trial court overruled Haynes' objection and denied his motion for a mistrial because Haynes "opened the door" to the prosecutor's question by raising the February 20 incident during direct examination of Mrs. Haynes.

Extraneous acts of misconduct that have not been reduced to convictions are generally inadmissible either to prove the guilt of a defendant, Meeker v. State (1979), Ind.App., 395 N.E.2d 301, 305, or to impeach the credibility of a witness. Chambers v. State (1979), Ind., 392 N.E.2d 1156, 1160. Even when acts of misconduct have resulted in convictions, only those convictions for crimes of an infamous nature or crimes involving dishonesty or false statement may be used for impeachment purposes. Ashton v. Anderson (1972), 258 Ind. 51, 62-63, 279 N.E.2d 210, 217. Impeachment based on a witness' unrelated drug use or involvement has been held improper. Boles v. State (1973), 259 Ind. 661, 666, 291 N.E.2d 357, 361; Otto v. State (1980), Ind.App. 398 N.E.2d 716, 717. In Otto, the court reasoned that evidence of drug use or involvement, even if reduced to conviction, does not have any bearing on a witness' propensity to tell the truth. Otto, supra, at 717.

The general rule prohibiting proof of unrelated drug use or involvement is inapplicable when the drug use or involvement is made an issue in the case. Evidence which tends to prove or disprove a fact in issue is admissible even though it implicates a defendant or a witness in the commission of another crime. Henderson v. State (1980), Ind., 403 N.E.2d 1088, 1090. For example, other drug use or involvement may be made an issue and thus admissible: (1) to show a common plan, scheme, or design of drug selling; Manuel v. State (1977), 267 Ind. 436, 438, 370 N.E.2d 904, 906; Perry v. State (1979), Ind.App., 393 N.E.2d 204, 207; (2) to show the defendant's motive or guilty knowledge; Coker v. State (1980), Ind.App., 399 N.E.2d 857, 860; (3) to show that a witness was under the influence of drugs at the time of the offense; Lusher v. State (1979), Ind.App., 390 N.E.2d 702, 704; or (4) to address an unrelated incident after the other party "opened the door" to the incident during direct examination of a witness. Gilliam v. State (1978), Ind., 383 N.E.2d 297, 301; Ottinger v. State (1977), Ind.App., 370 N.E.2d 912, 917-18. The State contends that Haynes "opened the door" to cross-examination about criminal conduct that may have occurred during the February 20 incident.

The trial court is vested with broad discretion in determining the scope and extent of...