Kelley v. State
| Decision Date | 02 July 1990 |
| Docket Number | No. 82A04-8910-CR-447,82A04-8910-CR-447 |
| Citation | 555 N.E.2d 1341 |
| Parties | Ferdinand E. KELLEY, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
J. Richard Kiefer, Indianapolis, for appellant.
Linley R. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for State.
Ferdinand Kelley appeals his conviction for dealing in cocaine, a Class A felony. We rephrase and renumber the issues as follows:
I. Whether there was sufficient evidence to sustain the conviction.
II. Whether the trial court improperly admitted a hearsay statement of an informant who told the police Kelley was his source for cocaine.
III. Whether the trial court improperly admitted evidence of drug paraphernalia found in Kelley's apartment.
We reverse on issue II and remand for a new trial.
On September 10, 1987, Evansville police officers Richard Whitlow and Gary Anderson arrested Kenneth Guthrie for possession of marijuana and cocaine. At The officers took Guthrie to an unoccupied house owned by Guthrie's family. After waiting approximately 45 minutes, the officers and Guthrie moved to Guthrie's mother's house which was two houses away from their original location. Guthrie called the beeper number again, but the officers could not remember if he spoke to anyone. A few minutes later, Kelley drove up in front of the house and honked the horn. He got out of his car and knocked on the door. Guthrie's mother went to the door. After speaking to her, he turned around and sat down on the steps leading to the porch.
the police station, Guthrie named Kelley as his source for cocaine and agreed to set up a transaction with Kelley under police surveillance. Guthrie made several calls to a beeper number and eventually spoke to Kelley. Kelley agreed to meet Guthrie later that evening. The telephone conversation was recorded, but contains no specific mention of the reason for the meeting or its location.
The officers had Guthrie in handcuffs. They removed the handcuffs and Guthrie went out on the porch. As soon as he closed the door, he yelled "cops" and started to run. Kelley also ran. Two other officers, who had been watching the house, gave chase, however, they were unable to catch Kelley and Guthrie. One of the officers went to Kelley's car, and spoke to Mary Van Dyke, Kelley's girlfriend, who was seated in the car. Van Dyke was sitting on a small bag of white powder. She denied any knowledge of the bag. The record does not reveal if the powder in the bag was tested or weighed.
The police began searching the area. Approximately 30 minutes later, one of the officers found a plastic bag behind a residence just off an alley through which Kelley and Guthrie ran. The bag contained two other plastic bags containing white powder. A state police laboratory technician determined that the bags contained approximately 12 grams of cocaine. None of the officers saw Kelley with the bag or saw him drop anything as he was running away. In addition, none of the officers heard any conversation between Kelley and Guthrie.
Later that evening, police officers executed a search warrant at Kelley's apartment in Newburgh, Indiana. In the apartment, they found a grinder commonly used to mix cocaine, bags with white residue, many small plastic bags, and a bottle of Manitol, commonly used to dilute cocaine.
Additional facts will be given when necessary to our opinion.
Kelley claims there was insufficient evidence to support his conviction. Specifically, he claims because there was no evidence to connect him with the cocaine found in the alley, the jury could not have reasonably inferred that he possessed it. He also claims that the small bag of white powder, assumed to be cocaine, found in the car and the drug paraphernalia found in his apartment do not support an inference that he possessed or sold more than three grams of cocaine.
Here, there was no evidence Kelley had physical possession of cocaine. However, the State is not required to show physical possession, only constructive possession. Bergfeld v. State (1988), Ind., 531 N.E.2d 486. Constructive possession is defined as "the intent and capability to maintain dominion and control over the illegal drugs." Id. at 490. The defendant's exclusive control of the premises where drugs are found will support an inference of intent to maintain dominion and control over the drugs. However, when the premises are not within the exclusive control of the defendant, the inference of intent must be supported by additional circumstances showing the defendant had knowledge of the presence of the drugs. Id.
Here, the cocaine was found in the yard of a residence just off a public alley. Clearly, Kelley did not have exclusive control of the premises. However, there were additional circumstances which support an inference that Kelley dropped the cocaine in the alley. He fled from the police and ran through the alley. The officers testified no one entered the alley between the time Kelley and Guthrie ran through it and the time the cocaine was found. There was testimony that the bag was dry and could not have been in the alley more than a day. In addition, a bag of white powder was found in Kelley's car and paraphernalia associated with the distribution of cocaine was found in his apartment.
In Ferguson v. State (1985), Ind., 485 N.E.2d 888, the police executed a search warrant at an apartment in a hotel. The police knocked on the only entrance to the apartment. An officer stationed outside the apartment saw Ferguson, the defendant, run into the bathroom where he remained for three or four seconds before running back through the apartment and disappearing through a doorway. The police broke into the apartment through a wall, because the door was barricaded, and discovered that the doorway through which Ferguson disappeared led to a basement. There was no other door to the basement but there was an air duct leading to a room on the first floor. A tinfoil packet containing heroin was found on the floor of the basement. Although the basement was dusty, there was no dust on the packet. The dust was disturbed inside the air duct. Ferguson was found in another room of the hotel. His clothes were covered with the same type of dirt as that in air duct and the officer identified him as the man he had seen in the apartment. Our supreme court held that Ferguson's flight; his stop in the bathroom (apparently to dispose of drugs); and the presence of the clean packet of heroin in the otherwise dusty basement was sufficient evidence to support a conviction of possession of heroin.
The facts in this case are similar to the facts in Ferguson. In both cases, drugs were found in an area not in the defendant's exclusive control, but through which the defendant had recently fled; the appearance of the packages containing the drugs was not inconsistent with their having been recently dropped; and there were additional circumstances tending to show the defendant's involvement with drugs.
In determining a question of sufficiency, this court does not reweigh the evidence or judge the credibility of witnesses. Pearson v. State (1988), Ind., 523 N.E.2d 747. There was sufficient evidence to support the verdict.
At the time of trial, Guthrie was still a fugitive, and therefore was not available to testify. Prior to trial, the trial court granted a motion in limine as to any statements made by Guthrie. During direct examination of the officers, reference was made to Guthrie's statements to the officers and Kelley objected. These objections were sustained. However, during Kelley's cross examination of James Allison, one of the officers who was in the house with Guthrie, Kelley's counsel asked if Guthrie had said he would stay with the officer, and the officer answered "Yes".
Out of the presence of the jury, the State argued that Kelley had opened the door to all statements made by Guthrie. The trial court agreed and permitted testimony concerning everything that Guthrie told the officers. Kelley objected to this line of questioning as hearsay. The officer then testified that Guthrie told him he had been purchasing cocaine from Kelley for approximately a month and that he could contact Kelley by calling his beeper number to indicate he was ready to purchase cocaine.
Kelley argues these statements were inadmissible hearsay. The State concedes the statements were hearsay, 2 but argues the statements were admissible under the co-conspirator exception or because Kelley opened the door to such testimony.
Evidence of the statements or acts of parties to a conspiracy in furtherance of its objectives is admissible against all parties to the conspiracy. Chinn v. State (1987), Ind., 511 N.E.2d 1000. The State claims Kelley and Guthrie were parties to a conspiracy to sell cocaine, and focuses on the question of whether there was adequate evidence of a conspiracy to support the admission of the statements. See id. It is unnecessary to consider this question, because the statements fail to meet the second requirement of the test--that the statements were made in furtherance of the objectives of the conspiracy. Guthrie's statements to the police that Kelley was his source of cocaine, cannot be construed as furthering the conspiracy. On the contrary, such statements are directly opposed to the objectives of the conspiracy. Therefore, the statements do not fall within the co-conspirator exception to the rule.
The State also argues Kelley opened the door to this testimony by asking if Guthrie told the officer he would stay with him. The record reveals the following testimony of Officer Allison:
Q. In fact, the whole time Guthrie was with you, is it true you had your hand on his belt when you were outside the police station?
A. Virtually. I mean, I guess it would be possible.
Q. Is that a true statement?
A. I don't...
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