Mendez v. State
| Decision Date | 28 September 1977 |
| Docket Number | No. 676,676 |
| Citation | 267 Ind. 67,367 N.E.2d 1081 |
| Parties | Celso MENDEZ, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 171. |
| Court | Indiana Supreme Court |
Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).
Defendant was convicted in a trial by jury of Delivery of a Controlled Substance, Ind.Code (Burns Ind.Stat.Anno.1974 Supp.) 35-24.1-4-1 (Repealed by Acts 1975, P.L. 338 § 4). For present law see Ind.Code (Burns 1975) 35-24.1-4.1-1, to-wit: Heroin. He was sentenced to imprisonment for twenty years and fined one thousand dollars. This appeal presents the following issues:
(1) Whether the trial court erred by denying defendant's motion to dismiss and discharge which was based upon an allegation that the affidavit supporting the warrant for his arrest failed to show probable cause.
(2) Whether the trial court erred in denying defendant's motion for change of venue.
(3) Whether the trial court erred in refusing to suppress the evidence obtained in an alleged scheme of entrapment not supported by probable cause.
(4) Whether the trial court erred in denying defendant's motion for a directed verdict of acquittal, predicated upon the State's alleged failure to prove that defendant had not been entrapped.
(5) Whether the trial court erred in denying defendant's motion for a directed verdict of acquittal, based upon the State's failure to introduce evidence that heroin is a proscribed substance under Indiana's Uniform Controlled Substance Act.
(6) Whether the trial court erred in giving State's instruction number two.
(7) Whether the trial court erred in refusing defendant's motion for a mistrial based upon alleged prosecutorial misconduct.
This charge presents no issue for review, inasmuch as it relates solely to the validity of the defendant's arrest. It appears that the affidavit in question, although it may have contained some allegations of questionable credibility, established probable cause without reference to such allegations. Nevertheless, the question is a moot one, as there has been no showing that any of the State's evidence was obtained in The illegality of an arrest affects only the admissibility of the evidence obtained as a result thereof or of a search following it. It does not affect the right of the State to try the arrestee. Wells v. State, (1971)256 Ind. 161, 267 N.E.2d 371; Walker v. State, (1974) 261 Ind. 519, 307 N.E.2d 62.
consequence of the arrest. Defendant's argument that a reversal after trial is required, to comport with constitutional requirements and to be consistent with the exclusionary rule applied to evidence illegally obtained is without logic. Evidence obtained in consequence of an illegal arrest is excludable, just as is evidence obtained in consequence of an illegal search. Other remedies are available to protect against unlawful arrests and detainers.
Defendant filed a motion for change of venue from the county, alleging that publicity in the news media was such as to impair his right to a fair and impartial trial. In support of his motion, he filed a supporting affidavit and copies of two newspaper articles which reported his bail hearing. The trial court found that defendant had not established the alleged prejudice, but took the motion under advisement. After preliminary voir dire examination of prospective jurors, the motion was denied.
The decision on a motion for a change of venue is a matter within the trail court's discretion. Jarver v. State, (1976) Ind., 356 N.E.2d 215; McFarland v. State, (1975) 263 Ind. 657, 336 N.E.2d 824; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665. An applicant for a change of venue has the burden to establish the grounds for such change, and it is the duty of the trial court to determine, from the evidence, if such grounds have, in fact, been proved. In so doing, the trial court assesses the evidence, both as to weight and credibility. It may not act arbitrarily, but it has much discretion, and even though the application and evidence be uncontroverted it, nevertheless, establishes but a prima facie basis, which is not binding upon the court. Jarver v. State, supra ; Brown v. State, (1969) 252 Ind. 161, 247 N.E.2d 76.
The only evidence contained in the record which would suggest exposure by potential jurors to community bias consisted of the two newspaper articles aforementioned, both of which were published two months prior to the trial. They are not sufficient by themselves, however, to show the necessary degree of pervasive and inflammatory sentiments from which it may be presumed that the defendant could not receive a fair trial. See Sheppard v. Maxwell, (1966) 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, (1965) 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rideau v. Louisiana, (1963) 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663.
Additionally, there has been no showing of any actual prejudice to the defendant from the denial of the change of venue motion. Inasmuch as the trial court waited until after the jury voir dire to make its ruling, the defendant had the opportunity to discover the extent, if any, to which prospective jurors had been exposed to potentially prejudicial publicity and their ability to render an impartial verdict in the face of it. See Murphy v. Florida, (1975) 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. This voir dire examination is not contained in the record before us, and, therefore, is not subject to our review. Cooper v. State, (1972) 259 Ind. 107, 284 N.E.2d 799; Fortune v. State, (1937) 212 Ind. 325, 9 N.E.2d 81; Campbell v. State, (1887) 148 Ind. 527, 47 N.E. 221.
The defendant moved to suppress any evidence of the narcotics transaction upon the ground that the State had failed to establish probable cause to suspect him of trafficking in narcotics at the time it arranged the purchase by a police informer. The motion was denied, and we find no error in that ruling.
The controlled buy took place on April 16, 1975. At the suppression hearing the State presented evidence that the police had been acting upon information from an informer, one Don Squires, and, acting upon information from him had previously made a controlled buy from the defendant on May 1, 1975. It is the defendant's argument that the State could not utilize the May 1st buy as probable cause for the May 16th buy Officer Roberts and Officer Beerbower, who were involved in the controlled buys, both testified that Squires volunteered his services to the police, had given information concerning the drug dealers, which they knew to be true and other information which later investigations proved to be correct, all prior to May 1, 1975. A specific instance was a controlled buy made April 30, 1975, from one Peitraszewski upon information supplied by the informer. The information supplied by Squires, therefore, did meet the "reliable source" test for determining the existence of probable cause to set the trap in which the defendant was caught.
without a showing of probable cause for the May 1st buy. It is not necessary for us to pass upon that question, however, as there was a showing of probable cause for both purchases.
At the close of the State's case in chief, the defendant moved for a directed verdict of acquittal upon the ground that the State had not, in rebuttal of his entrapment defense, introduced any evidence to establish his pre-disposition to commit the crime charged. This motion was denied, and the defendant proceeded to present evidence in his own behalf. At the conclusion of all the evidence, the defendant again moved for a directed verdict upon the same ground, and the motion was again denied.
As to the denial of the first motion, error, if any, was waived by the introduction of evidence by the defendant. Parker v. State, (1976) Ind., 358 N.E.2d 110; Ward v. State, (1964) 246 Ind. 374, 205 N.E.2d 148.
The overruling of a motion for a directed verdict at the close of all the evidence is error only if there is an absence of any evidence upon some essential issue, Carroll v. State, (1975) Ind., 338 N.E.2d 264; Birkla v. State, (1975) Ind., 323 N.E.2d 645, cert. den. 96 S.Ct. 99, or if the evidence is without conflict and is susceptible to but one...
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... ... Lyda v. State, (1979) Ind., 395 N.E.2d 776, 778; Mendez v. State, (1977) [273 Ind. 662] 267 Ind. 67, 72, 367 N.E.2d 1081, 1084. Not only is neither of these situations ... Page 532 ... present here, appellant did not allege either ground in either motion. He was, therefore, not entitled to a directed verdict. Apparently what counsel sought was a ... ...
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... ... Thus, it is within the sound discretion of the trial court to determine if cause exists for a change of venue from the county and its determination will not be disturbed absent an abuse of discretion. Mendez v. State (1977), Ind., 370 N.E.2d 323; Jarver v. State (1977), 265 Ind. 525, 356 N.E.2d 215; Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76 ... The newspaper articles and the transcripts from television newscasts presented in support of Snyder's motion for a change of venue ... ...
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