Mullins v. State

• Decision Date: 02 March 1987
• Docket Number: No. 985S373,985S373
• Parties: David MULLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 570

504 N.E.2d 570

David MULLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 985S373.

Supreme Court of Indiana.

March 2, 1987.

Lawrence O. Sells, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant David Mullins was tried by a jury and convicted of dealing in a narcotic drug, a class A felony. Ind.Code Sec. 35-48-4-1 (Burns 1985 Repl.). The judge sentenced him to the presumptive term of thirty years imprisonment. Mullins now appeals his conviction and sentence, raising the following issues:

1) Whether the evidence is sufficient to support his conviction;

2) Whether trial counsel was ineffective for failing to object to evidence seized during a search of Mullins' home and failing to object to the State's cross-examination regarding Mullins' drug use, and

3) Whether the sentence was unduly harsh and disproportionate to the offense.

These are the facts which support the judgment of the trial court. Following his own, unrelated arrest, an informant agreed to cooperate with the Drug Enforcement Administration (DEA) by acting as a buyer in drug transactions. On May 25, 1984, this informant arranged a purchase of cocaine from a known dealer. DEA agents observing the scene of the purchase saw Mullins and the dealer arrive at the same time and enter a building. The informant subsequently arrived and entered the building, where he saw Mullins pacing as if "waiting for something to happen."

While conducting the purchase in a private room, the informant questioned the weight of the cocaine. The dealer left the informant, had a brief conversation with Mullins, returned and assured the informant that the weight was correct. The informant completed the transaction, left the scene, and turned over the substance to waiting DEA agents. Chemical analysis subsequently demonstrated that the substance was cocaine. The informant later questioned the dealer about the identity of the third party; the dealer explained that the third party was the "delivery boy." At trial, the informant identified Mullins as the third party the whom dealer consulted during the transaction. The DEA Agents identified Mullins as the person who entered the building with the dealer.

As a result of this sale and a subsequent undercover transaction, the dealer was arrested; he in turn implicated Mullins as the supplier of the cocaine sold on May 25, 1984. The dealer testified that he had arranged for Mullins to deliver the cocaine to him at the scene of the purchase. He explained that Mullins was present at the purchase because he was waiting for his money. Mullins received more than six hundred of the seven hundred dollar purchase price paid by the informant. The dealer also testified that he had purchased drugs from appellant on prior occasions.

Mullins was arrested at his home on November 16, 1984. A search conducted at that time revealed scales and a strainer, equipment used to process cocaine, and Inositol, a substance used to dilute cocaine. DEA agents testified about the search, the items recovered, and their common usage in the drug trade.

I. Sufficiency of the Evidence

Mullins challenges the sufficiency of the evidence, pointing to allegedly conflicting testimony of certain State's witnesses. There was some conflict about whether the dealer and Mullins entered the building together and whether the informant was in the building when Mullins gave the dealer the cocaine. The testimony of the State's witnesses was also contradicted by the testimony of the defendant, who denied his involvement in any drug transactions with the dealer.

Additionally, Mullins points out that both the informant and the dealer had agreed to cooperate with the DEA. Both had been separately charged in the United States District Court with multiple drug-related counts, and both had pled guilty to single counts. The DEA made no recommendation in either case, but the witnesses' cooperation was made known to the sentencing judge. Each received a short period of incarceration and a period of probation. This information was fully revealed to the jury hearing Mullins' case.

Mullins acknowledges that this Court will not reweigh the credibility of witnesses and will consider only the evidence most favorable to the verdict along with all reasonable inferences drawn therefrom to determine whether a reasonable juror could determine guilt beyond a reasonable doubt. Additionally, a conviction may be sustained on the uncorroborated testimony of a single witness. Lawhorn v. State (1983), Ind., 452 N.E.2d 915.

In this case, the dealer identified Mullins as the individual who supplied the cocaine sold to the informant. Mullins' presence at the transaction was confirmed by DEA Agents, and his participation was corroborated by reasonable inferences drawn from the informant's testimony. The arrangement between the DEA and the witnesses was fully revealed to the jury. The credibility of these witnesses and the weight of their testimony was within the province of the jury. The jury chose to believe and rely upon the evidence given by the dealer and the informant. It was reasonable to do so.

II. Ineffective Assistance of Counsel

Mullins alleges that his trial counsel was ineffective for failure to object to testimony regarding the items seized at the time of his arrest and for failure to object to the State's cross-examination regarding his drug use. To prevail on a claim of ineffective assistance of counsel, appellant must first overcome a presumption of competence to show that his attorney's performance was deficient, and, second, he must demonstrate that the defense was prejudiced by the deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Fine v. State (1986), Ind., 490 N.E.2d 305.

In its case in chief, the State questioned a DEA agent about the search of Mullins' home conducted at the time of his arrest. Defense counsel interrupted to pose preliminary questions about the circumstances of the search and objected to any testimony regarding it because the witness had not described the premises with sufficient particularity. This objection was sustained. After the State established a further foundation as to the premises searched, the witness testified without objection that scales, a strainer and Inositol were found in Mullins' home. He further testified that these items were commonly used in the processing of cocaine.

Mullins argues that his counsel should have objected to this testimony. He does not challenge the validity of the search itself but argues that the paraphernalia seized was evidence of drug usage and therefore was inadmissible as evidence of prior criminal acts. While evidence of prior crimes of the defendant is inadmissible generally to prove commission of the charged crime, Carter v. State (1984), Ind., 471 N.E.2d 1111, evidence which is relevant to prove or disprove a fact in issue is admissible even though it tends to show guilt of another crime. Vanyo v. State (1983), Ind., 450 N.E.2d 524. The paraphernalia seized was commonly used to process cocaine to produce the type obtained in the transaction charged. Mullins' identification as a supplier of cocaine was at issue, and the paraphernalia seized tended to show that Mullins possessed the equipment necessary to process cocaine. The paraphernalia was therefore relevant to the crime charged and was admissible even though it also tended to suggest the additional crime of possession or use.

Counsel's failure to object to testimony about the paraphernalia seized also could have been a tactical decision. Having prevailed upon his first objection, counsel did not make the unsuccessful objection suggested above. Rather, he cross-examined the DEA agent, highlighting the fact that scales are generally available to the public and that Inositol is generally available at health food stores. This attempt to explain the evidence, rather than exclude it, is a tactical decision within counsel's reasonable professional judgment. Such tactical decisions do not establish ineffective assistance of cou...