Morris v. State

• Decision Date: 16 December 1992
• Docket Number: No. 49A05-9111-CR-366,49A05-9111-CR-366
• Court: Indiana Appellate Court
• Parties: Mary J. MORRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 665

604 N.E.2d 665

Mary J. MORRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9111-CR-366.

Court of Appeals of Indiana,

Fifth District.

Dec. 16, 1992.

Ali A. Talib, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHARPNACK, Chief Judge.

Mary Morris appeals her conviction of dealing in a controlled substance. We affirm.

On appeal, Morris raises two issues which we restate as follows:

1. Did the trial court properly admit into evidence state's exhibit number 3, two vials which purported to contain Valium brand diazepam?

2. Was the evidence sufficient to support the judgment of conviction?

The following facts support the judgment. The administration of Fountain View Nursing Home, which was concerned about possible narcotics use and thefts by staff members, retained Kiser-Brown Investigative Group, a private detective agency, to conduct an investigation. Kiser-Brown arranged for one of its operatives ("Penman") to go undercover as a new employee of the nursing home. Penman eventually gained the confidence of many of the other staff members, including Morris, who was a registered nurse at the facility.

Morris told Penman that she was dating a drug addict for whom she had occasionally obtained narcotics. When Penman asked if she could obtain drugs for him, Morris agreed and on two separate occasions provided him with substances which she identified as restricted drugs or narcotics.

Penman reported these transactions to Kiser-Brown, which notified the Marion County Sheriff's Department and arranged to set up a controlled buy. The Sheriff's deputies who were to monitor the transaction fitted Penman with a listening device and provided him with a one hundred dollar bill to purchase the drugs.

On the evening of October 31, 1990, Morris and the operative met in a restaurant parking lot. Morris gave the operative two sealed vials labelled "Valium" in exchange for the hundred dollar bill. This transaction was taped and the tape, on which Morris told Penman she had gotten Valium for him, was played into evidence without objection. Penman then signalled the sheriff's deputies who arrested Morris.

At trial, the state offered its exhibit no. 3, the vials that Morris gave to Penman in exchange for the money. A chemist with the Marion County Crime Laboratory testified that, in her opinion, the vials contained Valium brand Diazepam. She admitted that she had not performed a chemical analysis on the contents of the vials, but she testified that the labelling and the manner in which the vials were sealed were consistent with the practices of the manufacturer of Valium. She further testified that the labelling and manner in which the vials were sealed would be extremely difficult to replicate.

Morris first argues that the trial court erred when it allowed into evidence the vials which she gave to Penman and when the court allowed the state's chemist to render an opinion as to the contents of the vials. Without this testimony, Morris asserts, there is nothing in the record to show that the vials contained illicit drugs and thus no foundation for the admission of the evidence.

We have concluded that, under precedent of our supreme court and persuasive authority from other states, the state has produced a sufficient foundation for the admission of the vials. In Warthan v. State (1982), Ind., 440 N.E.2d 657, 659, the supreme court held that the identity of a substance can be proved by circumstantial evidence. In that case, the substance claimed to be LSD was never recovered as the transaction was not completed. The only evidence of the nature of what defendant had in his possession was his statements made during the preliminary discussion of the deal and the testimony by an officer that the defendant had some green paper with him that looked like the same type of paper on which LSD would be printed. The supreme court found that that evidence was not sufficient.

Here there is more. Here there are the two manufacturer-packaged, factory-sealed vials with original labelling identifying the contents as Valium, which was identified as a brand of diazepam by the state's expert chemist. While Indiana has not yet considered the probative value of such items, other jurisdictions have.

In People v. Nelson (1967), 82 Ill.App.2d 236, 225 N.E.2d 820, affirmed, 40 Ill.2d 146, 238 N.E.2d 378, the defendants were charged with acquisition of drugs by fraud and deceit. The defendants urged that since there had been no chemical analysis of the items purchased there was a failure to prove that the preparations obtained were narcotics (or more properly, exempt medicinal preparations). In rejecting this argument, the court wrote:

"The requirements of a chemical analysis in the case of an unidentified substance of unspecified origin without evidence of its nature and content is patent. The record in this case, however, discloses without contradiction, the following: (1) the defendant made the purchases using the trade name of the medicinal preparations; (2) that reputable pharmaceutical companies manufactured and distributed the preparation; (3) that the preparations were sold in the original container distributed by the manufacturer; (4) that the respective preparations have accepted standards or formulas specifying narcotics coming within the statutory concentration; (5) that the statute, Chap. 38, Sec. 22-21 (Ill.Rev.Stat.1965) requires the manufacturer to label each package or container showing the kind, quantity and form of narcotic drug contained in the medicinal preparation; (6) that the containers obtained by the defendant were, in fact, labeled by the manufacturers pursuant to such statutory requirement....

* * * * * *

A court must consider the purpose of the statute with regard to the medicinal preparations at issue, and the fact that they are the subject of immediate consumption. To announce the evidential requirement of chemical analysis of each preparation sold as an exempt medicinal preparation would not only render the legislative determinations for naught, but, would compound fatuity with the ridiculous. We believe that the circumstantial evidence is sufficient to satisfy the trier of fact of the guilt of the defendant, and that the prosecution has sustained its burden of proof under the evidence."

Nelson, 82 Ill.App.2d at 242-243, 225 N.E.2d at 823-824. It is the case that the foundational basis for the admission of the vials and the identification of their contents is not so thorough as in Nelson, but the essence of such a foundation is present and is sufficient.

In Commonwealth v. Stasiak (1982), 305 Pa.Super. 257, 451 A.2d 520, the defendant was charged with possession of controlled substances which he had stolen from a drug store. No chemical analysis was performed on the material. The court noted that proof that the materials possessed were controlled substances could be proven either by direct or circumstantial evidence. Referring to the case of Commonwealth v Leskovic (1973), 227 Pa.Super. 565, 307 A.2d 357, the Stasiak court said:

"In Leskovic, testimony by witnesses stating that appellants had sold them capsules called 'Christmas trees,' evidence that the description by a witness matched the description of a particular barbiturate and chemical analysis of a witnesses' blood which revealed a quantity of barbiturate in his bloodstream was enough. In the instant case, labels on many of the bottles, some of which were unopened, identified the drugs contained therein as being controlled substances. Because these labeled bottles were unopened, and because only four minutes had elapsed between the burglary and apprehension, the fact finder could reasonably infer that these bottles still contained the drugs which were indicated on the labels. Therefore, there was sufficient evidence to support the conviction for possession of controlled substances with intent to deliver."

305 Pa.Super. at 268, 451 A.2d at 525.

These cases illustrate that the information communicated by a manufacturer's original labelling, coupled with evidence that the packaging remains intact, is admissible to prove the nature of the contents of the package. Thus, the vials and the testimony of the chemist were admissible on their own merits.

In addition, defendant thrice admitted, in court, that she had delivered Valium to Penman, but protested that she was coerced into doing it. Despite Morris's assertions that she never identified the substance as Valium, but only referred to it as "drugs", it is clear from the context of the trial as a whole that the drug referred to is the Valium procured by defendant from her place of work. The following portions of the transcript lead to the conclusion that the defendant affirmatively admitted delivery of Valium:

"DIRECT EXAMINATION:

Q (defense counsel) All right. Ms. Morris, you've heard the testimony of Jerry Penman, the confidential informant in this case, who said that he delivered some drugs to you. Is that true? Or, you delivered drugs to him--I'm sorry--is that true?

A Under stress, and he threatened my life, this did take place.

* * * * * *

Q (defense counsel) Did you willingly deliver drugs to Jerry Penman?

A Not willingly, no.

Q Did you deliver those drugs because you were--you were being coerced?

A I thought he was--yes, I thought he was going to kill me any minute.... And, I just took it to where his harassing me and saying, 'get me this drug, get me that drug, and you'd better do what I say'--he was setting this whole thing up and just pushing me into doing it. But, I would never, you know--I've never been in trouble before in my whole life--I would never have done this.

* * * * * *

CROSS-EXAMINATION:

Q (Prosecutor) But, you--okay, you deny that you delivered drugs to Mr. Penman on the 29th, and earlier the day of October 31st, but you admit that you delivered...