King v. State

Decision Date17 December 1979
Docket NumberNo. 2-677A221,2-677A221
Citation397 N.E.2d 1260
PartiesDanny KING, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Stanley S. Brown, Public Defender, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

STATEMENT OF THE CASE

Danny King (King) appeals from his conviction for unlawful dealing in hashish, 1 claiming error in (1) denying his Motion to Dismiss, (2) admission of testimony of a telephone conversation, (3) permitting a police officer to testify as an expert, (4) allowing the prosecution to attempt to examine a witness who refused to testify on the grounds of self-incrimination, (5) refusing to allow certain questions on cross-examination of a prosecution's expert witness, and (6) insufficiency of the evidence.

We affirm.

FACTS

The evidence most favorable to the judgment is:

In August of 1975, John Hurlock, an officer with the Kokomo City Police, was working undercover as part of the Metropolitan Enforcement Group (MEG Unit) investigating drug sales in Tippecanoe County, Indiana. Karen Smith, an informant, was working under Hurlock's supervision.

On August 29, 1975, Smith contacted King by telephone for the purpose of arranging a hashish purchase. Following the telephone call, Smith and Officer Hurlock went to King's house. Inside King's house, Hurlock and King discussed the drug purchase. King stated that he had three quarters of an ounce of hashish and as Hurlock wanted only one-half ounce, he should return the next evening, giving King time to weigh and cut down the hashish.

The next night, the pattern repeated itself. Smith again telephoned King, and Smith and Officer Hurlock went to King's house. King came out of the house and got into the car with Officer Hurlock and Smith. He had not reduced the hashish to one-half ounce, so Officer Hurlock agreed to buy three-quarters of an ounce. King gave the hashish to Smith who passed it to Officer Hurlock, and in return Officer Hurlock passed the money through Smith to King.

Hurlock identified the substance which he purchased from King as hashish due to its appearance, texture, and by use of a chemical field test. The substance was later tested at the Indiana State Police laboratory and found to be approximately 18.5 grams of hashish.

King was indicted by a Tippecanoe County Grand Jury on January 29, 1976. The indictment was signed by George L. Hanna, special prosecutor for Tippecanoe County. The indictment was challenged by a motion to dismiss which, after a hearing, was denied.

ISSUES

Six issues are presented for review:

I. Did the special prosecutor lack authority to sign the charging indictment thereby rendering it void and mandating dismissal of the action?

II. Did the trial court commit reversible error in admitting testimony by Officer Hurlock as to a telephone conversation between King and informant Smith?

III. Did the trial court abuse its discretion in allowing Officer Hurlock to testify as an expert in identifying the substance which he purchased from King?

IV. Did the trial court commit reversible error in allowing the State to ask Karen Smith a question after she indicated she would refuse to answer all substantive questions on the grounds of self-incrimination?

V. Did the trial court err in refusing to allow the prosecution's expert witness on controlled substances to be questioned on the statutory definitions of hashish and marijuana?

VI. Was there sufficient evidence that the substance purchased from King by Officer Hurlock was "dry hashish," the delivery of which was prohibited by Ind.Code 35-24.1-4.1-10 (repealed effective October 1, 1977).

For the sake of clarity, the parties' contentions will be set forth with the discussion of each specific issue.

DECISION
ISSUE ONE Motion to Dismiss

Was King's indictment improperly signed thereby necessitating that the trial court grant his Motion to Dismiss?

PARTIES' CONTENTIONS King asserts the indictment was defective in that it was not signed by the proper person, that is, the elected prosecuting attorney of Tippecanoe County, James Kizer. King contends that the special prosecutor who signed the indictment, George L. Hanna, was without authority to do so because (1) there was no judicial determination of the factual basis for the prosecutor's disqualification, and (2) the special prosecutor had no authority to investigate or prosecute drug cases.

The State maintains that there is no requirement for a judicial determination if the regular prosecuting attorney has admitted his disqualification and requested appointment of a special prosecutor.

ADDITIONAL FACTS

This issue revolves around the disqualification of the elected prosecutor of Tippecanoe County, James A. Kizer, and the appointment of special prosecutor, George L. Hanna. At the center of this controversy is the following order of disqualification:

Comes now James A. Kizer, Prosecuting Attorney for the 23rd Judicial Circuit.

It appears to the Court that certain allegations have been publicly made concerning possible criminal conduct by public officials and concerning the possible commission of crimes which have not been properly investigated or prosecuted, and that further allegations have been publicly made that the said prosecuting attorney has been influenced in the conduct of his office by political considerations.

It further appears to the Court that the interests of justice require that said allegations be made the subject of police and grand jury investigation.

And now The said Prosecuting Attorney, in the interests of a full and free investigation of all said allegations, Disqualifies himself from participating therein, and requests the Court to appoint a special prosecutor to assist the police and grand jury in the investigation of all said allegations and to conduct the prosecution of any criminal charges which may arise therefrom.

Entered this 22nd day of October, 1975.

/s/ Warren B. Thompson

/s/ Warren B. Thompson, Judge

/s/ Tippecanoe Circuit Court

/s/ Robert F. Munro

/s/ Robert F. Munro, Judge

/s/ Superior Court

/s/ of Tippecanoe County

/s/ Jack A. King

/s/ Jack A. King, Judge

/s/ Superior Court No. 2 of

/s/ Tippecanoe County

/s/ James A. Kizer

/s/ James A. Kizer, Prosecuting Attorney

/s/ for the 23rd Judicial Circuit

(emphasis supplied)

According to evidence presented at the hearing on the Motion to Dismiss, the three judges prepared the order in advance of a meeting with Kizer. At an hour-long meeting on October 22, 1975, Kizer signed the disqualification order. That same day, the three judges signed an order appointing George L. Hanna as special prosecutor. 2

At the hearing on the Motion to Dismiss, extensive testimony was taken, including testimony from Kizer, Judge King, and Judge Munro. Following the hearing, the trial court found that Kizer's signature upon the order was voluntary and not the result of duress, fraud or threats; 3 that the scope of authority of the special prosecutor included particular classes of crimes which had not been properly prosecuted or investigated; and that the crime with which King was charged (dealing in hashish) was included within the scope of the special prosecutor's authority. 4

CONCLUSION The special prosecutor had authority to sign King's indictment, and therefore the Motion to Dismiss was properly overruled.

King pursues a will-o'-the-wisp. The Indiana cases have long held that if an elected prosecutor admits his disqualification and requests appointment of a special prosecutor, a judicial determination of the factual basis for such disqualification is Not necessary. See Perfect v. State (1925), 197 Ind. 401, 141 N.E. 52; State ex rel. Williams v. Ellis (1915), 184 Ind. 307, 112 N.E. 98. See also State ex rel. Goldsmith v. Superior Court of Hancock County (1979), Ind., 386 N.E.2d 942.

Reason governs these decisions. If a prosecutor believes himself to be incapacitated or disqualified to such a degree that he cannot properly perform Some or all of his duties, it would seem superfluous to require a court to hold a hearing, receive evidence and make findings in order to merely confirm his belief. Such a procedure is not required of a judge who disqualifies himself. This court is in no position to second guess a prosecutor's decision as to his own disqualification whether that disqualification be as to one case, or as to a more general classification of cases. This is within the discretion and judgment of the prosecutor in fulfilling the duties of his office. Whether he is properly fulfilling those duties is ultimately for the judgment of the voters not the courts.

This situation of voluntary disqualification by the prosecutor differs from one in which the elected prosecutor Opposes appointment of a special prosecutor. In the latter situation, judicial determination of the factual basis for disqualification must be made prior to the special prosecutor's appointment. State ex rel. Spencer v. Criminal Court of Marion County (1938), 214 Ind. 551, 15 N.E.2d 1020, 16 N.E.2d 888; State ex rel. Purcell v. Circuit Court of Sullivan County (1950), 228 Ind. 410, 92 N.E.2d 843; State ex rel. Latham v. Spencer Circuit Court (1963), 244 Ind. 552, 194 N.E.2d 606. This prevents the arbitrary judicial usurpation of the powers of a constitutional office that of prosecutor. 5 The prosecuting attorney is a constitutional officer, State ex rel. Spencer v. Criminal Court of Marion County, supra ; State ex rel. Latham v. Spencer Circuit Court,supra, and is not subject to an arbitrary order of disqualification at the whim of a trial judge. 6 State ex rel. Williams v. Willis, supra ; State ex rel. Purcell v. Circuit Court of Sullivan County, supra. State ex rel. Williams v. Ellis, supra, spells out this limitation:

We do not hold that, because the judge of some court might be of the opinion that a given...

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