Lawhorn v. State
| Decision Date | 29 August 1983 |
| Docket Number | No. 481S104,481S104 |
| Citation | 452 N.E.2d 915 |
| Parties | William LAWHORN and Cecil Cox, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant Lawhorn.
J. Richard Kiefer, Indianapolis, for appellant Cecil Cox.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants-Appellants William Lawhorn and Cecil Cox were found guilty by a jury in the Bartholomew Superior Court of dealing in cocaine, a class A felony. The trial judge sentenced each to a term of thirty years. Appellants now directly appeal. The first issue presented for our consideration claims that the trial court erred by sentencing Appellants on a class A felony rather than on a class B felony due to the actual weight of pure cocaine delivered. This is the only issue raised by Appellant Cox. Appellant Lawhorn raised this issue and also presented several other issues. Lawhorn admitted that some of his issues are without merit and accordingly waived them. Additional issues presented for our review are:
2. whether the trial court erred by denying Lawhorn's motion to suppress certain evidence;
3. whether Lawhorn's conviction is supported by sufficient evidence;
4. whether the trial court erred by denying Lawhorn's motion for mistrial; and
5. whether the trial court erred by ruling that State's witness Huttsell was qualified to give expert testimony.
The facts most favorable to the trial court's judgment indicate that Roger Billings of Columbus, Indiana, approached the United States Drug Enforcement Agency (DEA) in 1979 and reported that he was aware of an illegal drug problem in Columbus. Specifically, Billings informed that William Lawhorn was dealing in all types of drugs on a large scale. Billings was especially interested in stopping the illegal drug traffic in Columbus since his son had nearly died from a drug overdose. Billings stated his willingness to act as a confidential informant with the DEA to help stop the illegal drug traffic. The DEA referred Billings to the Columbus Police Department where John Myers of the Narcotics and Vice Division worked with him. Myers directed Billings to visit Lawhorn, under cover, at 818 Lafayette Avenue in Columbus. Lawhorn lived there with the owner, Cindy Burton, who was Lawhorn's fiancee. Billings visited the address as many as ten or eleven times, each time wearing a body microphone and transmitter set. A listening post for the radio receiver unit was established in a third story room in the First Methodist Church across the street from Burton's house. This post also gave police a clear view of the parking lot used by Lawhorn and his guests and of the front door and other approaches to the house. Each time Billings visited 818 Lafayette, he first reported to the narcotics office maintained by the Columbus Police Department, then walked to his car and proceeded directly to the address. Each conversation in the house was monitored by Detective Myers and Officer Robert S. Clark who stationed themselves in the church building. Clark recalled that there were approximately twelve visits. He also stated that the radio transmitter, antennae, receiver and tape recorder were in good working order. Tapes were made of the conversations between Billings, Lawhorn and Cox. Said conversations discussed drug trafficking in general and certain illegal sales in particular. These tapes were played for the jury over objection by both Appellants.
Appellants were both convicted of the crime described in Ind.Code Sec. 35-48-4-1 (Burns Supp 1982). Said section penalizes, according to weight, a person who "Knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II" (emphasis added). The offense is a class A felony if the amount of drug involved weighs three grams or more.
The undisputed evidence adduced at trial showed that the substance delivered by Cox to Billings at Lawhorn's instruction weighed 6.617 grams and contained 35.2 per cent pure cocaine. The pure cocaine portion of the delivered substance thus weighed approximately 2.3 grams. Cox maintains that the trial court erred by overruling his motion to dismiss on the basis that the weight of the seized, pure cocaine does not support a class A felony conviction. Lawhorn likewise claims that the undisputed evidence regarding the quantity of seized, pure cocaine cannot support a class A felony, thirty year sentence. Both Appellants concede that a class B felony conviction could be sustained by this evidence.
Appellants now claim that the Legislature intended an enhanced punishment only when the seized pure cocaine or narcotic drug classified in schedule I or II equals three grams or more. They further argue that if the Legislature intended an enhanced sentence when the weight of the total amount seized upon delivery equals three grams or more, regardless of the actual pure drug content in the seized amount, then such classification was unconstitutional. Appellants concede that this Court held to the contrary in Hall v. State, (1980) Ind., 403 N.E.2d 1382. In Hall, fifty-eight grams of substance was delivered and no analysis was made to determine the amount of pure cocaine contained therein. Appellant Hall argued that there was insufficient proof that the substance contained ten grams of pure heroin. We found no insufficiency in that evidence. We reach the same result here.
The first sentence of Ind.Code Sec. 35-48-4-1 clearly states that a crime is committed when a person knowingly or intentionally delivers cocaine or a pure or adulterated drug classified in Schedule I or II. Appellants argue that the second sentence of this statute makes the offense a class A felony only if the actual amount of drug involved weighs three grams or more. They contend that since this second sentence does not explicitly stipulate pure or adulterated drug, the Legislature intended that only the pure drug was to be considered. We see no merit to this argument. The antecedent of "drug" in the second sentence is the drug discussed in the first sentence which is "narcotic drug, pure or adulterated." We would be straining the language or intention of the Legislature to interpret this statute to mean a different analytical weight in each sentence. This statute and all those involving controlled substance dealing utilizes the weight of the entire substance delivered by the dealer. This is the statutory meaning as well as the usage and meaning common in drug trafficking. Appellants and those with whom they dealt treated these transactions as cocaine sales of the aggregate weight of the substance. The Legislature clearly intended to use that same weight in affixing the penalties herein involved.
Appellants also claim that this interpretation would make Ind.Code Sec. 35-48-4-1 unconstitutional. Specifically, they argue that the statute would be unconstitutional because it would unequally penalize persons who sell identical amounts of pure cocaine--the inequality based on whether the cocaine was mixed with enough other substance to make an aggregate weight in excess of three grams. We find no merit in this argument. We held in Hall, supra, that when the issue involves dealing in controlled substances, the proper test is one of the rational basis for the statutory interpretation. Hall, 403 N.E.2d at 1387. The federal courts also have found that due to the societal harm posed by cocaine, the rational basis standard is proper to test the classification's relationship to a state penal and regulatory purpose. United States v. Castro, (N.D.Ill.1975) 401 F.Supp. 120; United States v. Brookins, (D.N.J.1974) 383 F.Supp. 1212; see also United States v. Carolene Products, (1938) 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. The primary state interest served by drug dealing statutes is not simply the harm caused by a particular dosage, but the societal harm caused by the dealing itself. We need not burden this opinion with the details of that societal harm since it is well known in all areas of our society and amply discussed in the cases cited immediately above. We find no reversible error on this issue.
At trial, Appellant Lawhorn objected to the admission of State's Exhibits I, III, IV-a and IV-b which were police recordings of conversations between Billings and persons in Lawhorn's residence, including Lawhorn and Cox. Lawhorn now claims that the admission of said Exhibits violated his rights under the 4th, 5th and 14th Amendments of the United States Constitution and under the corresponding sections of the Indiana Constitution. Specifically, Lawhorn claims that his 5th Amendment rights were violated by Billings who elicited incriminating statements from him without first warning him pursuant to Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Lawhorn acknowledges that this Court held squarely against his position in Adams v. State, (1979) 270 Ind. 406, 386 N.E.2d 657, but now asks us to reconsider. In Adams, we recognized that the procedural safeguards of Miranda apply only to custodial interrogations. Since the United States Supreme Court mandated Miranda warnings to dispel the compulsion inherent in custodial surroundings wherein no statement obtained from a defendant can truly be the product of his free choice, we reject the notion that because a police agent elicited certain incriminating statements in a non-custodial conversation, Miranda warnings were required. We come to the same conclusion here. The statements were non-custodial and thus no Miranda warnings were required.
The second basis for seeking suppression of the contested tapes was the proposition that the broadcast and recording of private conversations from a microphone and transmitter carried by a consenting participant in the conversation violates...
To continue reading
Request your trial
-
State v. Skok
...of such a conversation to be unconstitutional. See, e.g., Smithey v. State, 269 Ark. 538, 544, 602 S.W.2d 676 (1980); Lawhorn v. State, 452 N.E.2d 915, 918-19 (Ind. 1983); Lee v. State, 489 So. 2d 1382, 1386 (Miss. 1986); State v. Engleman, 634 S.W.2d 466, 477 (Mo. 1982); State v. Kilgus, 1......
-
Com. v. Schaeffer
...299 S.E.2d 544 (1983); State v. Lee, 67 Haw. 307, 686 P.2d 816 (1984); State v. Couch, 103 Idaho 205, 646 P.2d 447 (1982); Lawhorn v. State, 452 N.E.2d 915 (Ind.1983); State v. Roudybush, 235 Kan. 834, 686 P.2d 100 (1984); State v. Reeves, 427 So.2d 403 (La.1982); State v. Thomas, 432 A.2d ......
-
State v. Goetz
... ... 1 (Fla.1982), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983); Green v. State, 250 Ga. 610, 299 S.E.2d 544, 546 (1983); State v. Lester, 64 Haw. 659, 649 P.2d 346, 350-51 (1982); People v. Richardson, 60 Ill.2d 189, 328 N.E.2d 260, 264 (1975); Lawhorn ... 191 P.3d 519 ... v. State, 452 N.E.2d 915, 918 (Ind.1983); Carrier v. Commw., 607 S.W.2d 115, 117 (Ky.App.1980); State v. Reeves, 427 So.2d 403, 410 (La.1983); Lee v. State, 489 So.2d 1382, 1386 (Miss.1986); People v. Collins, 438 Mich. 8, 475 N.W.2d 684, 698 (1991); State v ... ...
-
People v. Collins, Docket No. 86690
...Ga. 610, 299 S.E.2d 544 (1983), State v. Lester, n. 42 supra, People v. Richardson, 60 Ill.2d 189, 328 N.E.2d 260 (1975), Lawhorn v. State, 452 N.E.2d 915 (Ind., 1983), State v. Reeves (On Rehearing), n. 42 supra, State v. Brown, n. 42 supra, State v. Kilgus, 128 N.H. 577, 519 A.2d 231 (198......