Morgan v. State

Decision Date31 December 1996
Docket NumberNo. 27S02-9505-CR-595,27S02-9505-CR-595
Citation675 N.E.2d 1067
PartiesMelvin J. MORGAN Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Brent Westerfeld, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SELBY, Justice.

Melvin J. Morgan ("defendant") was convicted of Conspiracy to Deal in Cocaine, a Class A felony, Dealing in Cocaine, a Class B felony, and Possession of Cocaine with Intent to Deliver, a Class A felony. Defendant was sentenced to thirty years for conspiracy, ten years for dealing, and thirty years for possession (with fifteen years suspended). The dealing and possession counts were to be served concurrently, but consecutively to the conspiracy count. Defendant appeals the convictions and the sentence. We affirm in part and reverse in part.

FACTS

In the early morning of Sunday, November 15, 1992, Morgan sold one rock of crack cocaine to an undercover police officer for $30. During the course of the sale, defendant displayed a number of cocaine rocks and allowed the undercover police officer to select one. When the assisting officers rushed into the room to arrest him, Morgan dropped the $30 and the remaining eighteen individually wrapped cocaine rocks. Police arrested Morgan and seized the cocaine.

Following arrest, Morgan was advised of his rights. Later, after signing a waiver of rights form, Morgan admitted that he was working for a person known as Gemier Wilson. Morgan told police that on the preceding Friday, he and Wilson had traveled in a rental car from Detroit, Michigan to Marion, Indiana with $4000 worth of crack cocaine, for the purpose of selling cocaine. Morgan revealed that Wilson was staying at a nearby motel, and that Wilson had stopped by earlier that day to pick up the proceeds of defendant's sales. According to Morgan, Wilson was carrying about $1700 to $1800 in cash. Finally, Morgan admitted having made seventy to eighty cocaine sales since his arrival in Marion on the previous Friday.

Morgan's statement was used to secure a search warrant for Wilson's motel room. During the search, the police found a car key which was hidden in the closet. The key opened a rented Dodge Spirit, the type of car described by Morgan. A search of the car revealed $1610 in cash in the glove compartment and a paper bag containing at least ninety-four pre-packaged crack cocaine rocks.

At trial, the State's forensic chemist testified that the eighteen cocaine rocks seized at the time of Morgan's arrest weighed 3.80 grams, the single rock sold to the undercover police officer weighed 0.2 grams, and the ninety-four rocks found in the rental car weighed 20.36 grams.

At the conclusion of a jury trial, Morgan was convicted of conspiracy to deal cocaine, dealing in cocaine, and possession of cocaine with intent to deliver. The Court of Appeals affirmed the defendant's conviction for conspiracy but reversed the defendant's conviction on Count II, dealing in cocaine, holding that the conviction violated double jeopardy and on Count III, possession of cocaine with intent to deliver, based on an erroneous instruction. Additionally, the Court of Appeals held that the trial court erred by failing to determine the voluntariness of defendant's statement to police. Thus, the Court of Appeals remanded for a determination of voluntariness of the statement. Morgan v. State, 648 N.E.2d 1164 (Ind.Ct.App.1995).

The State sought transfer, arguing that the jury instruction did not constitute fundamental error. The State also argued that double jeopardy did not bar conviction on the dealing count. We grant transfer and affirm in part and reverse in part.

DISCUSSION
I. Jury Instruction

Morgan contends that the trial court erred when it instructed the jury that:

Possession of a quantity of a controlled substance, such as crack cocaine, in excess of what could be personally consumed or utilized, is circumstantial evidence of intent to deliver.

(R. at 89.) Morgan cites Chandler v. State, 581 N.E.2d 1233 (Ind.1991) for this proposition. In Chandler, we held that the following instruction constituted reversible error: "Possession of a large amount of narcotics is circumstantial evidence of intent to deliver." Id. at 1236. In that case, we found that such an instruction, although an accurate quotation from Montego v. State, 517 N.E.2d 74 (Ind.1987), is inappropriate as a jury instruction. This is because "the categorical form of the instruction does not invite the jury to consider the evidence of the possession by appellant of a large quantity of contraband as proof of intent to deliver, but commands the jury to do so and binds the conscience of the jury to do so." Chandler, 581 N.E.2d at 1236.

This case is distinguishable from Chandler. In Chandler, the trial judge gave the instruction over an objection. Morgan did not object at trial. Thus, the State urges, defendant has waived this issue. See, e.g., Townsend v. State, 632 N.E.2d 727 (Ind.1994). Failure to object at trial constitutes waiver of the alleged error. However, defendant argues that the giving of this instruction constitutes fundamental error. Defendant cites David v. State, 646 N.E.2d 83 (Ind.Ct.App.1995) to demonstrate that a Chandler instruction constitutes fundamental error. Thus, defendant argues that he may appeal even without a contemporaneous objection.

Since defendant initiated this appeal, we granted transfer in David. In our recent opinion, David v. State, 669 N.E.2d 390 (Ind.1996), we held that although giving an instruction which contained similar language may have been error, in light of additional information within the challenged instruction and within the instructions as a whole, it did not give rise to fundamental error. Thus, in David, we affirmed the conviction even though the jury was given an instruction which contained language similar to that in Chandler.

This case is analogous to David. In both cases, the defendant failed to raise a contemporaneous objection. Also in both cases, the instruction which contained the Chandler like instruction was modified by other language which lessened the effect that such an instruction might have had on the jury. In David, the instruction read:

Possession of a large amount of a controlled substance is circumstantial evidence of the defendant's intent to deliver. The greater the amount in possession, the stronger the inference he intends it for delivery and not for personal consumption.

Id. at 391. We held that the second sentence "removes any categorical finding of intent which may have been posited by the first sentence. Rather, it allows the jury to determine if the defendant had possession of enough heroin in order to infer intent to deliver." Id. at 393.

Likewise in this case, the phrase "in excess of what could be personally consumed or utilized" removes the categorical finding of intent. It, too, allows the jury to determine if the defendant had possession of enough cocaine in order to infer intent to deliver. Thus, as in David, we find no fundamental error with the challenged jury instruction. Moreover, the instruction did not constitute the linchpin on the question of the defendant's intent in this case. Morgan offered to sell cocaine to undercover officer Mike Andry, he displayed a bag containing a number of packaged rocks of cocaine, and he allowed Andry to select one. Indeed, the defendant admitted that he had traveled from Michigan to Marion, Indiana with a large quantity of cocaine for the purpose of selling it.

II. Admissibility of Confession and Statements

Morgan argues that the inculpating statement he made to the police was not voluntarily given. Although the trial court held a hearing on this issue outside the presence of the jury, defendant argues that the trial court did not make the required determination of voluntariness, but instead erroneously

                submitted the issue to the jury.  The Court of Appeals agreed, finding that the trial court failed to rule on the voluntariness of defendant's confession and statements to police and erred by submitting the issue to the jury without first making this determination.  On transfer, the State did not challenge this holding.  We agree with Judge Kirsch on this issue, and we incorporate by reference this section of the Court of Appeals' opinion.    IND.APPELLATE RULE 11(B)(3). 1  Thus, we remand to the trial court for a determination of voluntariness
                
III. Double Jeopardy

Morgan raises two double jeopardy issues. First, he claims that his convictions for both the conspiracy and dealing charges violate principles of double jeopardy. Although it is possible for a defendant to be convicted of both crimes without a double jeopardy violation, see Derado v. State, 622 N.E.2d 181 (Ind.1993), Morgan argues that due to the way that he was charged and the jury was instructed, it was possible for the jury to have convicted him of conspiracy based on the overt act that he "did sell crack cocaine." 2 Thus, the overt act in furtherance of the conspiracy could have been the same act as required to convict him for dealing in cocaine. The Court of Appeals agreed that this was a double jeopardy violation, and vacated the dealing conviction. Morgan v. State, 648 N.E.2d 1164, 1172 (Ind.App. 1995). We also agree and incorporate by reference the Court of Appeals' double jeopardy analysis for the dealing and conspiracy convictions. APP. R. 11(B)(3). Thus, the dealing conviction is vacated.

Next, Morgan contends that double jeopardy was violated by his convictions for both dealing and possession, as possession with intent to deliver is a lesser included offense of dealing. Because we have already vacated the dealing conviction, we need not address this issue.

IV. Sentencing

Finally, Morgan argues that the sentence he received is manifestly unreasonable. The trial court ordered sentences of...

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