Hudgins v. State

• Citation: 443 N.E.2d 830
• Decision Date: 19 January 1983
• Docket Number: No. 582S166,582S166
• Parties: Carlton E. HUDGINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 830

443 N.E.2d 830

Carlton E. HUDGINS, Appellant, v. STATE of Indiana, Appellee.

No. 582S166.

Supreme Court of Indiana.

Jan. 19, 1983.

Sheila Suess Kennedy, Treacy Cohen Mears & Crawford, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with one count of delivery of a controlled substance. He was tried before a jury and found guilty. He was sentenced to a twelve (12) year term of imprisonment.

The facts are these. One Joanna Burress had been working with the United States Drug Enforcement Agency (hereinafter "DEA") for some time as a confidential informant. The DEA was engaged in an investigation of illicit drug dealing by two other individuals, Wesley Shaw and Robert Slaughter, in which Burress was assisting.

On December 2, 1980, Burress was asked by DEA agent Tony King to attempt to make a narcotics purchase from Shaw and Slaughter. That morning at the DEA office in Indianapolis she and her car were searched by DEA agents and an Indianapolis police department officer. No drugs or money were found on her person or in her car. She was given five twenty dollar bills by agent King and sent off in her car to try and make a narcotics purchase from either Shaw or Slaughter. Agents King and Eaton and two Indianapolis police officers followed Burress in order to maintain a moving surveillance of her. She had also been "wired" with a radio transmitter so they could maintain voice contact with her.

Burress picked up Wesley Shaw at his home. The two drove around Indianapolis to try to find Slaughter, but were unsuccessful. After stopping to make a phone call, Shaw told Burress she could buy some drugs from "Carl." Burress left Shaw briefly to report to Agent King who told her to buy drugs from whomever she could. She returned to the location where she had left Shaw. Shortly thereafter appellant entered her car and remained for about five minutes. Burress bought two packets of a substance later shown to be heroin from appellant. She then drove to a location where she again met with agents King and Eaton. She gave them the two packets and told them she had purchased them from a man named Carl for the one hundred dollars she had been given earlier. After the sale Burress returned to the DEA office where she and her car were again searched. No drugs or money were found on her person or in her car. Appellant was subsequently arrested, tried and convicted as recited above.

At appellant's trial agent King testified as to the events described above. He testified he did not see the actual alleged buy of drugs from appellant by Burress, as he and Eaton were not in a position to do so. However, Indianapolis police officer Barbara Gilberti, who was also participating in the surveillance of Burress, testified she watched from behind a fence while a man, whom she positively identified as appellant, got in Burress' car and exited a short time later. Burress also testified as to these events. She positively identified appellant as the man from whom she purchased the two packets later shown to contain heroin on December 2, 1980.

Appellant first claims the verdict is not supported by sufficient evidence to show guilt beyond a reasonable doubt. Appellant claims the conviction depends "entirely upon the word of a not-so-ex-addict who knew she had to 'produce' in order to avoid going to prison herself" and thus fails to meet the test of proving guilt beyond a reasonable doubt. (Emphasis in original.)

Appellant's claim is without merit. It is well-settled that on appeal this Court does not judge the credibility of witnesses. Haynes v. State, (1982) Ind., 431 N.E.2d 83. The jury chose to believe Burress, which was entirely their prerogative. Appellant is not entitled to a reversal merely because Burress is an ex-drug addict, nor even if she is currently addicted. Moreover, the testimony of an informant is sufficient evidence to support a conviction. Haynes, supra.

Appellant also claims the evidence is insufficient to support the conviction because though the substance in the packets Burress allegedly purchased from appellant was shown to be heroin, no proof was entered showing heroin is a controlled substance.

No such proof is necessary. See, Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081. In the case at bar the trial court properly instructed the jury that delivery of a controlled substance is a Class B felony and that heroin is a schedule I controlled substance. There is ample evidence from which the jury could find the State proved beyond a reasonable doubt the substance appellant sold to Burress was heroin. See also, Ralston v. State, (1980) Ind.App., 412 N.E.2d 239 (no need for State to prove phenmetrazine is a controlled substance when it is on the statutory list). We hold the evidence is sufficient to support the conviction.

Appellant claims the trial court erred in admitting State's Exhibits 1 and 2 into evidence over his objection. These exhibits are aerial photographs of the area of urban Indianapolis, referred...