Jeffers v. State

• Citation: 485 N.E.2d 81
• Decision Date: 21 November 1985
• Docket Number: No. 1183S426,1183S426
• Parties: Leroy Rudy JEFFERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 81

485 N.E.2d 81

Leroy Rudy JEFFERS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1183S426.

Supreme Court of Indiana.

Nov. 21, 1985.

Phyllis J. Senegal, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

The appellant, Leroy Jeffers, was convicted by a jury of two counts of Dealing in Cocaine, Ind.Code Sec. 35-48-4-1(1) (Burns 1985 Repl.), both class B felonies, and one count of Possession of Cocaine with Intent to Deliver, Ind.Code Sec. 35-48-4-1(2) (Burns 1985 Repl.), a class B felony, and was sentenced to two concurrent terms of twenty years of imprisonment and a third term of twenty years to be served consecutively to the others. In this direct appeal, the following issues are raised:

1. Whether the evidence was sufficient to sustain the convictions;

2. Whether the State proved an adequate chain of custody of the cocaine;

3. Whether the court erred in denying appellant's pro se motion for a change of venue from the judge;

4. Whether appellant was denied effective assistance of counsel; and,

5. Whether the sentence imposed was excessive. ¹

The facts which tend to support the judgment of conviction are as follows. The Gary police department received an anonymous tip that narcotics were being sold from the rear apartment of a multi-unit dwelling. The police set up surveillance for three days. After observing what they believed to be narcotics traffic at the address, an undercover purchase was planned.

Officer Richardson testified that she knocked on the door of the rear apartment, and it was answered by appellant's fourteen-year-old son, Becelone. She told him she wanted "two dimes." He told her to move to a window where she gave him police department money. She saw him go to a refrigerator, then back to the window where he handed her two small white packets.

The officer returned to the police station, opened the packets, and saw they contained a white powdery substance. She marked the packets with her initials, the date, and the time, placed them in an envelope, sealed it, and dropped it in the property vault.

The next day, she took the envelope from the vault to the toxicology laboratory where the substance was analyzed. Later, she took the envelope back to the property vault. On the day of trial she took the envelope from the vault. She testified it was in the same condition then as it was when she had last put it in the vault.

The toxicologist for the State testified that he received the sealed envelope in his laboratory where it was assigned a laboratory number and, in the presence of the officer, placed in the laboratory vault. He testified that the normal procedure was followed, which is for the chemist to retrieve the envelope from the vault, not its sealed condition, then open it and perform the analysis. After analysis, the remaining evidence was returned to the vault. When the officer returned to the laboratory, she was present as the evidence clerk removed the envelope from the vault. The officer was then presented with the toxicologist's letter of analysis. The toxicologist testified that the white powder brought to him by Officer Richardson was cocaine.

Precisely the same testimony was presented as to a second purchase of cocaine by Officer Richardson at the same residence. Becelone answered the door, took her order and money for "two dimes," and handed her two packets through the window. Officer Richardson and the toxicologist testified the same procedures were used for sealing and securing the evidence, and the toxicologist found it to be cocaine.

A few days later, the police procured a warrant to search the rear apartment. After they announced themselves at the door, they heard shuffling inside and decided to force their entry. Inside they discovered appellant, his wife, Becelone, and the other six children huddled in the bathroom with a shotgun. A vial of cocaine was taken from the refrigerator. The remains of some marijuana cigarettes and a syringe with cocaine residue were taken from atop the kitchen table.

Later, Becelone made a statement to the police. He told them that both his parents knew he was selling the drugs from the house and that he did it because his father, the appellant, had told him to. He had not told his father he did not want to sell the drugs because he was afraid his father would hit him. Becelone told the police his father taught him that the packets cost ten dollars, and that he should first take the money, then go to the refrigerator and get the drugs.

Becelone told the police that he was never left alone to sell the drugs, which he had been doing for almost one year. His father sometimes was in the apartment during the sales, and sometimes his mother was present. Becelone did not know how the drugs came into the apartment, but he turned the money from the transactions over to the appellant.

Becelone's statement was introduced at trial after it was substantially contradicted by his direct testimony. On direct examination, Becelone testified he did not know if he had sold drugs on the two dates of the police undercover purchases, but he did admit that at times during that month he had sold drugs at the direction of his father. Then he stated, "Well, really, my father didn't tell me to sell them. My mother told me." He said his statement he gave the police was not truthful and that his mother had told him to implicate his father. Then he testified his father was sometimes present when he sold the drugs and that he gave the money to his father because the drugs belonged to his father.

I.

Appellant challenges the sufficiency of the evidence. He claims he was not shown to have had sufficient control and interest in the premises to have been convicted for aiding and abetting his son's dealing in cocaine or to have been convicted for possession with intent to deal the cocaine found in the refrigerator. We will neither reweigh the evidence nor judge the credibility of the witnesses. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. We will look only to the evidence most favorable to the State to determine whether the crimes were proved beyond a reasonable doubt. Id.

Apparently, appellant had set up official residence in the apartment above the rear apartment. His wife, Becelone, and the other children resided in the rear apartment where the drug traffic occurred. An employee of the utility which supplied natural gas service to the apartment testified that approximately three months before appellant's arrest, he began service for the upstairs apartment and his wife began service for the rear apartment.

Whether or not appellant had set up household separate from the apartment where the criminal activity took place, the evidence nonetheless sufficed to prove his guilt. The jury was entitled to believe Becelone's original statement that the criminal enterprise was controlled by appellant. He stated his father directed him in the sales, controlled the profits, and sometimes was present. Even at trial Becelone testified that appellant told him to sell the drugs and that the drugs belonged to appellant. The State proved beyond a reasonable doubt that appellant knowingly and intentionally aided and induced Becelone in the delivery of cocaine. Ind.Code Secs. 35-41-2-4 and 35-48-4-1(1) (Burns 1985 Repl.).

Appellant further argues that his alleged lack of control and interest in the premises renders insufficient the evidence against him on the charge of Possession with Intent to Deliver the cocaine taken in the search. One's possession of a substance may be constructive only and need not be actual and exclusive to create criminal liability. Cooper v. State (1976), 171 Ind.App. 350, 357 N.E.2d 260; Smith v. State (1975), 165 Ind.App. 60, 330 N.E.2d 771. Constructive possession may be proved by circumstantial evidence from which the care, management and control over the item in question may be inferred. Phillips v. State (1974), 160 Ind.App. 647, 313 N.E.2d 101.

Here, the cocaine seized in the search was stored and packaged similarly to the cocaine sold to the police, which was shown through Becelone's statement to have been owned and controlled by appellant. Appellant's constructive possession of the seized cocaine can be inferred from the evidence that he controlled the cocaine traffic from the apartment. Despite appellant's claim that he did not live in the rear apartment and, therefore, could not have possessed the drugs found there, the evidence showed he was often present and, in fact, was there standing guard over his family when the police arrived.

Appellant's intent to deliver the cocaine seized also can be inferred from the evidence as a whole. Romack v. State (1983), Ind.App. 446 N.E.2d 1346. The evidence that appellant was in the business of selling drugs and that the cocaine was stored and packaged similarly to the previously delivered drugs supports the inference appellant intended to deliver the seized cocaine. Id. The State proved beyond a reasonable doubt that appellant aided and induced Becelone in the two deliveries of cocaine and that he possessed the cocaine with an intent to deliver the cocaine. Ind.Code Sec. 35-48-4-1(2) (Burns 1985 Repl.).

II.

Appellant claims the court erred in admitting into evidence the cocaine purchased from Becelone by Officer Richardson. He argues the State established a chain of custody insufficient to have prevented tampering. He complains that no one familiar with the procedures and security of the property vault testified at trial. He states, "It was as if the cocaine samples entered a void from which they were subsequently retrieved by the police officers and transported to the toxicology laboratory."

This "void" into which the evidence was placed was the police property vault where it was kept under lock and key...