Johnson v. State, 984S362

• Citation: 507 N.E.2d 980
• Decision Date: 21 May 1987
• Docket Number: No. 984S362,984S362
• Parties: Larry JOHNSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 980

507 N.E.2d 980

Larry JOHNSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 984S362.

Supreme Court of Indiana.

May 21, 1987.

Rehearing Denied July 21, 1987.

Robert Canada, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Larry Johnson was found guilty by a jury in the Vanderburgh Superior Court of possession of cocaine, a class D felony. Appellant was also found to be a habitual offender. The trial court sentenced Appellant to two (2) years for possession of cocaine, enhanced by thirty (30) years for the habitual offender finding, for a total term of thirty-two (32) years. Appellant raises two issues for our consideration in this direct appeal:

1. destruction of evidence by the Police Department; and

2. improper entry of judgment.

On March 2, 1984, Appellant Larry Johnson was arrested on an outstanding theft warrant by Detective John Zirkelbach of the Evansville Police Department. Appellant was searched for weapons at the time of his arrest, handcuffed, and taken to the Evansville Police Department Headquarters. Defendant informed Zirkelbach that he had some type of arrangement with Sergeant Sprinkle, also of the Evansville Police Department, and that he wished to speak with Sprinkle. Zirkelbach telephoned Sprinkle but Sprinkle informed Zirkelbach he and Appellant had no such arrangement, and Zirkelbach should lock up Appellant.

Immediately after Zirkelbach telephoned Sprinkle, Zirkelbach took Appellant to the booking lobby, booked him on the outstanding theft warrant and searched him in order to determine what property he had on his person so that it could be placed in a property envelope for Appellant's protection. Zirkelbach removed Appellant's sport coat, searched it, and found a small packet in the breast pocket. The contents of the packet were later tested and proved to be cocaine. The testimony was that there were two video cameras in the booking lobby which filmed the procedures there when prisoners were being booked. Appellant moved for production of the video camera tapes forty (40) days after the booking and by that time the tapes had been erased and reused. Appellant claims this represented destruction of evidence that merits reversal of his conviction.

There is conflict in the evidence regarding the actual discovery of the incriminating evidence and the fact that it might have been recorded on the video cameras. Although most of the witnesses, including the police, assumed that the cameras probably recorded the search and discovery, there is no direct evidence that this was so. Furthermore, although Appellant claims he demanded the tapes be preserved, there is conflict from the police on this point and he, in fact, did not request production until forty days after the incident.

Zirkelbach testified that in searching Appellant to record any property he had on his person prior to his incarceration, he took Appellant's jacket. Appellant was then taken to another room for fingerprinting and other processing procedures. During this time, Zirkelbach found the packet of cocaine in the pocket of the jacket. Zirkelbach testified that Officer Peggy Sims was present and observed the discovery of the cocaine. Sims was in California on vacation during Appellant's trial and did not testify. There is no showing or claim that she was purposely absent during the trial, nor any mention of any statements from her as to the event or as to what she might have testified to had she been called during trial or in deposition. Zirkelbach testified he was generally aware that there were two video cameras located in the booking lobby and that it was his understanding these cameras recorded video procedures. The cameras were controlled from a control room outside the presence or control of the booking officers and Zirkelbach had no actual knowledge of their handling. He said he assumed they were for the most part used concerning complaints against police officers in the handling of prisoners and had never paid much attention to them. Since the control for the cameras was outside of the booking room and in the hands of other people, he did not know whether or not the cameras were on but assumed they probably were. He said he had never paid much attention to them, had never used one, and, in fact, had never seen one of the tapes.

Detective Mattingly, Zirkelbach's superior, testified he had a conversation with Appellant shortly after his arrest, either on the same night or on the following day. Mattingly went to Appellant's cell to talk to him about an unrelated case that Mattingly was investigating. Mattingly was not directly involved in Appellant's case and did not visit Appellant for the purpose of discussing the instant case. Mattingly testified Appellant told him that Zirkelbach discovered the packet of cocaine lying on the floor near Appellant. He said Zirkelbach picked it up off the floor and accused Appellant of dropping it. Appellant told Mattingly there were other persons in the booking room that could as well have dropped the packet as Appellant, and complained to Mattingly that he was falsely charged by Zirkelbach. Mattingly testified Appellant did not tell him, Mattingly, that Zirkelbach had planted the cocaine on him nor did Appellant request that the videotape be saved. Mattingly stated he really did not want to discuss this case with Appellant but told him that there were video tapes going in the booking room and if a police officer did something wrong, it would be on the tape. Further, Mattingly told Appellant that if Zirkelbach did something wrong, he would be in more trouble than Appellant because the video tapes would be reviewed by the Police Department's Internal Affairs Division. Mattingly then stated Appellant seemed to be satisfied with this explanation and they discussed it no further.

Appellant admitted he was out of the room when a search of his jacket was made by Zirkelbach, and stated he had not told Mattingly the packet was found on the floor. He further claimed he demanded of Mattingly that the video tape be saved and Mattingly promised him it would be. Appellant's claim is there was no cocaine in his pocket and the only way it could have gotten there was for Zirkelbach to have "planted" it. Appellant's father also testified he was with Appellant when Appellant was arrested and that he knew his son had no cocaine on him. He also stated that when Appellant was arrested Zirkelbach thoroughly examined all of Appellant's pockets and found no cocaine at that time. Detective Zirkelbach had previously testified he only "patted down" Appellant for weapons at the time of arrest.

Officer Harold Matthews of the Evansville Police Department's Records and Identification Section, testified that the Records Room has in its possession between twenty and twenty-five video tapes, depending on the number being held as evidence at any given time. He said that if they used one to two tapes a day they would go through the entire cycle of their tapes in ten to twenty days. Appellant's motion to preserve the video tapes was filed approximately forty days after the video tape was made, at which time it had already been reused and was not available. Zirkelbach testified Appellant had never inferred he wished to have the tape preserved and Zirkelbach did not do so because he said he never did pay any attention to them. He said he was generally aware that taping was done but had never used the tapes for any purpose.

There was also testimony by one Roy Ware, who testified Detective Zirkelbach had previously told Ware that he, Zirkelbach, wanted to "get" Appellant and asked Ware to plant a certain bag or package in Appellant's automobile. Ware's testimony was unclear as to whether he did, in fact, plant such package in Appellant's automobile. Further, Ware was unable to state what was in the package and he gave no testimony as to the result of the incident. Zirkelbach testified he had only one previous dealing with Appellant Johnson. He testified he had investigated a crime sometime before this one in which he thought Johnson might have been involved. He said he talked to Johnson and other witnesses and determined that Johnson was not involved. That involvement and this one, in which he served the arrest warrant, were the only dealings he had had with Appellant Johnson.

All of this evidence was heard by the jury. The trial court heard motions to dismiss based on this issue and denied them. The trial court stated there was no evidence because it had no way of knowing what the tape would have shown. In other words, he stated, "If they had the tape and showed it, it might not be anything other than a search of his body and then the officer removed something and that would be it. Again it might not even reflect that. Maybe the camera didn't show that." We tend to agree with the trial court that there is no showing here that the tape represented exculpatory evidence or that it obtained any evidence at all. It appears from all of the evidence that the tapes were reused in the normal course of business and that neither the police involved, nor the prosecutor, saw any particular need to preserve the tapes in this case.

As we stated in Wilson v. State (1982), Ind., 432 N.E.2d 30, 32:

"Prosecutors have discretion to make determinations after a charge has been filed and before a defendant has requested discovery regarding the materiality of evidence and whether or not it should be retained, produced, or destroyed. Birkla v. State (1975), 263 Ind. 37, 323 N.E.2d 645. Appellant correctly asserts that the negligent destruction or withholding of material evidence by the police or prosecution may present grounds for reversal.

Hale v. State (1967), 248 Ind. 630, 230 N.E.2d 432."

Wilson, at 32; see also Ross v. State (1980), 274 Ind. 588, 413 N.E.2d 252. Whil...