Mendez v. State, No. 676

Docket NºNo. 676
Citation267 Ind. 67, 367 N.E.2d 1081
Case DateSeptember 28, 1977
CourtSupreme Court of Indiana

Page 1081

367 N.E.2d 1081
267 Ind. 67
Celso MENDEZ, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 676 S 171.
Supreme Court of Indiana.
Sept. 28, 1977.

[267 Ind. 68]

Page 1082

Robert S. Bechert, Deputy Public Defender, Fort Wayne, for appellant (defendant below).

Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

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in a trial by jury of Delivery of a Controlled Substance, Ind.Code (Burns Ind.Stat.Anno.1974 Supp.) 35-24.1-4-1 (Repealed by Acts 1975, P.L. 338 § 4).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 [267 Ind. 69] 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.

ISSUE I

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

Page 1083

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.

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.

[267 Ind. 70] ISSUE II

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...

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31 practice notes
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...one inference, which is in favor of the accused. 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 mo......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...no conflict in the evidence and it is susceptible of but one inference which is in favor of the accused. Mendez v. State (1977), Ind., 367 N.E.2d 1081; Carmon v. State (1976), 265 Ind. 1, 349 N.E.2d 167; Hardin v. State (1964), 246 Ind. 23, 201 N.E.2d Snyder first argues that there is a tot......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1981
    ...requested change of venue; the guarantee of an impartial jury was apparently fulfilled. Haybron v. State, supra; Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d Defendant contends the trial court erred when it failed to conduct a hearing on his motion for a change of judge. The record revea......
  • Carpenter v. State, No. 3-776A160
    • United States
    • Indiana Court of Appeals of Indiana
    • August 2, 1978
    ...as a result thereof was admissible regardless of whether the subsequently filed affidavit was sufficient. Mendez v. State (1977), Ind., 367 N.E.2d 1081; DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d Appellant's principal contention, and that presented in the motion to suppress heard by ......
  • Request a trial to view additional results
31 cases
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...one inference, which is in favor of the accused. 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 mo......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...no conflict in the evidence and it is susceptible of but one inference which is in favor of the accused. Mendez v. State (1977), Ind., 367 N.E.2d 1081; Carmon v. State (1976), 265 Ind. 1, 349 N.E.2d 167; Hardin v. State (1964), 246 Ind. 23, 201 N.E.2d Snyder first argues that there is a tot......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1981
    ...requested change of venue; the guarantee of an impartial jury was apparently fulfilled. Haybron v. State, supra; Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d Defendant contends the trial court erred when it failed to conduct a hearing on his motion for a change of judge. The record revea......
  • Carpenter v. State, No. 3-776A160
    • United States
    • Indiana Court of Appeals of Indiana
    • August 2, 1978
    ...as a result thereof was admissible regardless of whether the subsequently filed affidavit was sufficient. Mendez v. State (1977), Ind., 367 N.E.2d 1081; DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d Appellant's principal contention, and that presented in the motion to suppress heard by ......
  • Request a trial to view additional results

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