Marts v. State

Citation432 N.E.2d 18
Decision Date10 March 1982
Docket NumberNo. 1280S438,1280S438
PartiesTimothy Edgar MARTS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Philip H. Hayes, Richard L. Young, John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted after trial by jury of Dealing in a Narcotic Drug, Ind.Code § 35-48-4-1(1) (Burns Supp.1981), and sentenced to thirty (30) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred in allowing the State to amend the information after arraignment.

(2) Whether the trial court erred in overruling Defendant's challenge to the jurisdiction of the special judge.

(3) Whether cocaine is properly classified as a narcotic drug and whether the penalty for dealing in cocaine constitutes cruel and unusual punishment.

(4) Whether Defendant's conviction is the result of police entrapment.

(5) Whether the trial court erred in excluding corroborative testimony.

The evidence most favorable to the State discloses that on January 9, 1980 Defendant sold cocaine to an undercover police officer.

ISSUE I

The information filed in this cause reads as follows:

" * * * on or about the 9th day of January A.D., 1980 at said County and State as affiant verily believes did knowingly deliver to Douglas Sheets a Narcotic Drug classified in Schedule II of Indiana Code 35-48-2, to wit: Cocaine, of aggregate weight of more than ten (10) grams all in violation of I.C. 35-48-1-1 and I.C. 35-48-4-1(1)."

After Defendant was arraigned, the State moved to amend the information to read as follows:

" * * * on or about the 9th day of January A.D., 1980 at said County and State as affiant verily believes did knowingly deliver to Douglas Sheets a Controlled Substance classified in Schedule II of Indiana Code 35-48-2, to wit: Cocaine, of aggregate weight of more than three (3) grams all in violation of I.C. 35-48-1-1 and I.C. 35-48-4-1(1)." (Emphasis added).

The trial court granted the motion over Defendant's timely objection.

Defendant contends that the trial court violated Ind.Code § 35-3.1-1-5 (Burns 1979) in two respects. He notes that a change in the information, which renders a defense to the original information unavailable under the amended information, affects his substantial rights. Ind.Code § 35-3.1-1-5(a)(9); (c); Johnson v. State, (1972) 258 Ind. 383, 387, 281 N.E.2d 473, 476. He argues that a "narcotic drug" as defined in Ind.Code § 35-48-1-1 (Burns 1979) does not include cocaine and therefore, that he lost the defense that the substance he delivered was not a narcotic drug as charged in the information.

However, the State is not required to show that cocaine is a narcotic drug, as the statute prohibits the delivery of cocaine as well as narcotic drugs, see Hall v. State, (1980) Ind., 403 N.E.2d 1382, 1389; and the addition of the term "narcotic drug" was mere surplusage, which was not detrimental to the defense. Doss v. State, (1971) 256 Ind. 174, 179, 267 N.E.2d 385, 388.

Defendant also argues that the amendment violated Ind.Code § 35-3.1-1-5(e) because the original information did not state an offense with sufficient certainty:

"The defendant therefore was charged with two offenses, delivery of a narcotic drug and delivery of cocaine, or it was impossible to tell which offense he was charged with, if any."

We do not agree. The gravamen of the offense charged is the delivery of cocaine in the amount of three grams or more. Both before and after the amendment Defendant was charged with the delivery of cocaine in the amount of three

grams or more. The amendment did not alter the potential penalty, the offense charged, or the available defenses, and the trial court committed no error in allowing it. See Utterback v. State, (1974) 261 Ind. 685, 689, 310 N.E.2d 552, 554; Kolb v. State, (1972) 258 Ind. 469, 473, 282 N.E.2d 541, 544; Dudley v. State, (1970) 255 Ind. 176, 178, 263 N.E.2d 161, 162.

ISSUE II

On February 1, 1980, Defendant moved for a change of judge. Judge Miller appointed a panel consisting of the Honorable Andrew Jacobs, Sr., the Honorable Steve C. Bach, and Maurice C. O'Connor, Master Commissioner of the Vanderburgh Circuit Court. The parties struck and Special Judge Jacobs assumed jurisdiction of the case. On February 12, 1980 Special Judge Jacobs entered the following order:

"Counsel will file, and notify the Special Judge, of any request for any ruling which could possibly affect the trial date no later than February 25, 1980."

Thereafter Defendant made several pre-trial motions upon some of which the trial court made adverse rulings. The trial court also ruled adversely with respect to the State's motion to amend the information discussed in Issue I.

On April 28, 1980 defense counsel withdrew, and new counsel entered their appearances, and moved the trial judge to disqualify himself and to remand the case to the regular judge in order to name a proper panel of persons qualified to serve as special judge. Defendant contended that under Ind.R.Crim.P. 13(2) Maurice O'Connor, Master Commissioner of the Vanderburgh Circuit Court, was by virtue of the rule and the office he held, ineligible to serve as special judge. Defendant repeated this contention prior to trial as part of his "Objections To Being Placed On Trial." The trial court overruled both the motion and the objections.

Ind.R.Crim.P. 13(2) provides:

"Any regular judge of a circuit, superior, criminal, probate or juvenile court and any member of the bar in this state shall be eligible for appointment in any of such courts as a special judge in any case pending in which he has not sat as judge or been named on a previous panel, unless he is disqualified by interest or relationship or is then serving as bailiff, reporter, probate commissioner, referee, or other such appointed official of the court in which the case is pending. In courts other than those named, a special judge shall be selected from judges of courts having the same or similar jurisdiction or from members of the bar."

Defendant argues that since Mr. O'Connor was not eligible to serve as special judge under Criminal Rule 13(2), the trial court should have remanded the case to the regular judge to appoint a panel of three persons eligible to serve. Defendant cites Shaw v. State, (1978) Ind.App., 381 N.E.2d 883 where the court recognized that a defendant must make a timely objection to the process used to select a special judge. Id. at 885. We recognized this principle in Gears v. State, (1932) 203 Ind. 400, 180 N.E. 592 where we stated:

"Instead of naming Mr. McDonald as special judge, the regular judge should have nominated three competent and disinterested persons and submitted their names to the prosecuting attorney and defendant for striking. (citation omitted). The method of selecting the special judge was irregular, and, if the defendant had objected and asked that the regular judge submit a list of three competent and disinterested persons, it would have been reversible error to have refused his request. But defendant made no objection to Mr. McDonald's appointment and recognized his jurisdiction by appearing and making a motion to quash, a verified motion for change of venue from the county and an oral motion for continuance. We see no reason why a defendant may not waive an irregularity in the method of taking a change of venue from the regular judge, or in the manner of selecting a special judge, if he should choose to do so with full knowledge of the extent and nature of the irregularity." Id. at 405, 180 N.E.2d at 593-94.

Assuming, arguendo, that the panel did not comply with Criminal Rule 13(2), the defendant's objections, though pretrial, came after he had, without protest, participated in the selection and had submitted himself to the jurisdiction of the special judge by obtaining rulings upon his motions. Upon this record, Defendant must be held to have acquiesced in any irregularity in the selection of the special judge.

ISSUE III

Defendant next contends that the inclusion of cocaine in the same statutory classification as more dangerous drugs violates the Due Process and Equal Protection guarantees of the State and Federal Constitutions. He also contends that the sentence for possession or distribution of cocaine constitutes Cruel and Unusual Punishment in violation of the State and Federal Constitutions.

Defendant acknowledges that we answered these issues in the negative in Hall v. State, (1980) Ind., 403 N.E.2d 1382, 1384-89, but raises them in order to preserve them for federal review and to urge us to reconsider our position. We decline to do so.

With respect to the Eighth Amendment Cruel and Unusual Punishment claim, our position is buttressed by the recent decision in Hutto v. Davis, (1982) --- U.S. ----, 102 S.Ct. 703, 70 L.Ed.2d 556, (per curiam), where the Court upon the authority of Rummel v. Estelle, (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, reversed the granting of habeas corpus relief upon the grounds that the sentence constituted Cruel and Unusual Punishment. The defendant had been sentenced to consecutive terms of twenty (20) years imprisonment and a $10,000 fine upon a count of possession with intent to distribute marijuana and a count of distribution of marijuana.

ISSUE IV

Defendant contends that his conviction is the result of entrapment by the police and their agents.

The defense of entrapment is governed by Ind.Code § 35-41-3-9 (Burns 1979) which provides:

"(a) It is a defense that: (1) The prohibited conduct of the person was the product of a law-enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and (2) The person was not predisposed to commit the offense.

"(b) Conduct...

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