Mendez v. State, No. 1076S367

Docket NºNo. 1076S367
Citation370 N.E.2d 323, 267 Ind. 309
Case DateDecember 07, 1977
CourtSupreme Court of Indiana

Page 323

370 N.E.2d 323
267 Ind. 309
Celso MENDEZ, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1076S367.
Supreme Court of Indiana.
Dec. 7, 1977.

[267 Ind. 310]

Page 324

Robert S. Bechert, Fort Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Celso Mendez, the defendant, was charged with violation of the Indiana Uniform Controlled Substances Act, to-wit: delivery of heroin. After a trial by jury he was convicted and sentenced to 20 years' imprisonment and a fine of $2,000. He now appeals this conviction raising the following issues:

[267 Ind. 311] 1. Whether the trial court abused its discretion in denying defendant's motion for change of venue from the county; and

2. Whether the trial court committed error by admitting certain exhibits into evidence over an objection about the insufficiency of the chain of custody.

The facts and evidence submitted at trial can be summarized as follows. A confidential

Page 325

informant, John Caley, working in cooperation with Fort Wayne police officers, took part in a transaction with the defendant on August 31, 1975, wherein the defendant sold the informant 2.06 grams of a powder which was later identified as heroin and admitted as evidence.

I.

The defendant first contends that the trial court erred in overruling his motion for a change of venue from the county. He alleged as the basis for this motion that pre-trial publicity in local newspapers and news broadcasts would prevent him from having a fair trial in Allen County.

The defendant has not presented this court with a record sufficient to permit review of all the news media. It is the duty of the defendant to make a proper record. Pulliam v. State (1976) Ind., 345 N.E.2d 229; Buchanan v. State (1975), 263 Ind. 360, 332 N.E.2d 213.

There is no transcript of the hearing on the motion included in the record. Furthermore, there is no record of the voir dire of the jurors to determine if any prejudice was evident with members of the jury. All that the defendant has preserved are two newspaper clippings from the local newspapers of September 9 and 10, 1975.

This Court cannot consider matters outside the record. An error alleged but not disclosed by the record is not a proper subject for review. Scruggs v. State (1974), Ind.App., 317 N.E.2d 800; Cooper v. State (1972),259 Ind. 107, 284 N.E.2d 799. We are accordingly[267 Ind. 312] restricted to the defendant's presentation of two newspaper clippings.

A trial court's denial of a motion for change of venue in a case such as this is reviewed only for abuse of trial court discretion. Ind.R.Crim.P. 12; Ind. Code § 35-1-25-4 (Burns 1975); McFarland v. State (1975), 263 Ind. 657, 336 N.E.2d 824.

This Court has further held that the trial court has the duty to balance the rights of the news media, the defendant, and the citizens as it determines the right to change of venue. Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76. The newspaper clippings do mention the defendant as a "clear danger to the welfare of the community," but this was only one factor for the trial court to consider. The two clippings alone do not demonstrate such clear and convincing prejudice that this Court could hold there was abuse of discretion by the trial court.

Defendant also contends that when the application for change of venue from the county is uncontroverted by the state, and the state does not file counter affidavits, "a prima facie basis for the granting of the application" is established and cites Brown, supra, as upholding this contention. However, the complete citation from Brown does not...

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40 practice notes
  • King v. State, No. 2-677A221
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 December 1979
    ...But he has failed to include such instructions in the record, and therefore has waived this argument. Mendez v. State (1977), Ind., 370 N.E.2d 323; Schuman v. State (1976),265 Ind. 586, 357 N.E.2d 895; Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d Further, King asserts that the evidence......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • 9 September 1983
    ...this is reviewed only for abuse of trial court discretion. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. This Court has further held that the trial court must balance the rights of the news media, the defendant, and the citizens......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • 5 March 1982
    ...accused. Williams v. State, (1979) Ind., 387 N.E.2d 1317; Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. While a complete chain of custody must be established, the state is not required to exclude every remote possibility of tampe......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 May 1981
    ...unless there is a clear showing of an abuse of discretion. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. In order for a defendant to establish good cause for a discretionary change of venue, he must produce evidence of community......
  • Request a trial to view additional results
40 cases
  • King v. State, No. 2-677A221
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 December 1979
    ...But he has failed to include such instructions in the record, and therefore has waived this argument. Mendez v. State (1977), Ind., 370 N.E.2d 323; Schuman v. State (1976),265 Ind. 586, 357 N.E.2d 895; Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d Further, King asserts that the evidence......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • 9 September 1983
    ...this is reviewed only for abuse of trial court discretion. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. This Court has further held that the trial court must balance the rights of the news media, the defendant, and the citizens......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • 5 March 1982
    ...accused. Williams v. State, (1979) Ind., 387 N.E.2d 1317; Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. While a complete chain of custody must be established, the state is not required to exclude every remote possibility of tampe......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • 6 May 1981
    ...unless there is a clear showing of an abuse of discretion. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. In order for a defendant to establish good cause for a discretionary change of venue, he must produce evidence of community......
  • Request a trial to view additional results

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