Murphy v. State

• Decision Date: 06 June 1990
• Docket Number: No. 28S00-8807-CR-618,28S00-8807-CR-618
• Citation: 555 N.E.2d 127
• Parties: Kenneth MURPHY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 127

555 N.E.2d 127

Kenneth MURPHY, Appellant, v. STATE of Indiana, Appellee.

No. 28S00-8807-CR-618.

Supreme Court of Indiana.

June 6, 1990.

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Dealing in a Schedule I Controlled Substance, a Class B felony, for which he received a sentence of twelve (12) years.

The facts are: On March 21, 1986, Indiana State Police Officer Burton purchased LSD from a person who introduced himself as Kenneth Murphy. Officer Burton paid Murphy $14 and received four "hits" of LSD. Officer Burton was taken to the Murphy residence by an informant named Weaver, who told the officer that he was taking him to see Kenneth Murphy.

After Officer Burton completed the transaction, he placed the LSD in a plastic evidence bag and took it to the Indiana State Police Post in Terre Haute, sealed the bag with red evidence tape, and put his initials across the tape on the bag. Then the bag was sent by certified mail to the Indiana State Police Laboratory in Evansville.

There the bag was signed for by a person named "L. Hertel." The contents of the bag were subsequently handled first by a laboratory attendant, Bill Shaeffer, and tested by William Boes, who determined that the bag contained LSD. Neither Hertel nor Shaeffer testified at trial. At trial, Officer Burton testified that the bag placed in evidence was the same bag the LSD was placed into before being shipped to the laboratory in Evansville.

Appellant claims there is not sufficient evidence that he was the perpetrator who committed the offense for which he was convicted. Prior to trial appellant had been released on bond. However, when the day of trial arrived, appellant could not be found, and after discussion with appellant's counsel, the trial court ruled that the trial should proceed in appellant's absence.

Appellant now takes the position that inasmuch as no one identified him in the presence of the jury as the person who sold LSD to the police officer, his conviction should not stand. However, the evidence shows that the informant advised the police officer that he was taking him to the home of Kenneth Murphy. When they arrived, the informant told the police officer that the person he was about to meet was in fact Kenneth Murphy. When Murphy greeted the police officer, he stated that his name was Kenneth Murphy.

When the officer was unable to obtain narcotics at the first meeting, he was told to return later that evening, which he did. When he returned, he asked for Kenneth Murphy and was directed by a woman in the house to the same man the officer had met previously, who had identified himself as Kenneth Murphy.

At trial, the officer testified that he had never met Murphy previously nor had he seen him since. However, he had seen a photograph of him. One of the State's witnesses at trial was Trooper Lance Seever of the Indiana State Police. Seever was a senior trooper investigator whose primary duty assignment was Greene County. It was Seever who organized the undercover buy from Kenneth Murphy. Seever testified that the buy was arranged because, "I had received information that the Defendant in this cause, Kenny Murphy, might have LSD for sale."

Seever told the court that he had seen Murphy "on a couple of occasions" at the residence where the buy occurred, "in Linton, Indiana, on the Northwest 9th and B Streets." Seever monitored the buy from his own vehicle and testified that he saw Kenneth Murphy's car parked in front of the residence during the sale.

Seever's testimony was adequate to prove that the perpetrator was the defendant under the principles outlined in Broecker v. State (1976), 168 Ind.App. 231, 342 N.E.2d 886, and Iseton v. State (1984), Ind.App., 472 N.E.2d 643.

There is ample evidence in this record to support the fact that a Kenneth Murphy was the person who sold Officer Burton the LSD. There also is ample evidence that the trial judge sentenced the same Kenneth Murphy after he was captured and returned to court. It is not necessary that a defendant be pointed out in the presence of the jury as the person who committed the crime. The conviction may stand if there is evidence from which the jury could deduce that the defendant was in fact the perpetrator of the crime. See Haymaker v. State (1988), Ind., 528 N.E.2d 83.

In the case at bar, we have the additional precaution taken by the trial judge in his thorough questioning of appellant at the time of sentencing. Although appellant raises the issue that no one identified him in the presence of the jury, he nevertheless makes no affirmative claim that he is not the same Kenneth Murphy who sold LSD to Officer Burton.

The evidence in this case is sufficient to sustain appellant's conviction.

Appellant contends the trial court erred in allowing the trial to proceed in his absence and in making improper comments to the jury regarding his absence. Appellant was released from custody on bond following his initial arrest. He was required to keep the court advised as to his current mailing address. However, when the prosecutor's office attempted to contact appellant prior to trial, the letter was returned to the prosecutor's office marked, "Delivered to wrong address! He does not live here any longer! Did not leave any forwarding address!"

When appellant's counsel was questioned by the court on the day set for trial, he indicated that he had been in touch with his client but that he did not know his immediate whereabouts. As above pointed out, the court's thorough questioning of appellant at the time of his sentencing clearly indicates that appellant knew of his trial date and that he deliberately absented himself from trial. Thus there is ample evidence that he knowingly and voluntarily waived his right to be present at trial. Carter v. State (1986), Ind., 501 N.E.2d 439.

The court was entitled to consider evidence of his absence to support the court's decision to try him in absentia. Fennell v State (1986), Ind., 492 N.E.2d 297. The Supreme Court of the United States has held essentially the same thing. See Taylor v. United States (1973), 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174. There is nothing in this record to indicate the trial court erred in its decision to try appellant in absentia.

Appellant also claims the judge committed error when he informed the jury that appellant was absent and a rearrest warrant had been issued.

It is proper for a judge to inform the jury of the facts surrounding the proceedings. See Marbley v. State (1984), Ind., 461 N.E.2d 1102. It is unrealistic to contend that the absence of a defendant should go unexplained to the jury. The judge's comment as to the rearrest warrant could have had no adverse effect. It is common knowledge that a person charged with a felony has been arrested. If he is absent for trial, it may be presumed he would be rearrested.

Appellant contends he was denied his right to due process in a speedy trial in that the State failed to provide adequate justification for waiting until fifteen months after the alleged offense before charging him. He takes the position that all of the evidence clearly indicates that the transaction for which he was charged occurred fifteen months prior to the State filing an information against him. He states that he was available at all times and that the delay worked a hardship in that so much time had passed he could not remember where he was or what he was doing on the alleged date of the offense and therefore could not properly defend himself.

This same question was raised in the case of McKrill v. State (1983), Ind., 452 N.E.2d 946. There this Court held: "The five (5) year Statute of Limitation for a class B felony, Ind.Code Sec. 35-41-4-2 (Burns 1979), reflects the public policy as to the length of time which may elapse between the time of the offense and the charge." Id. at 948. The very purpose for a statute of limitation is to set a time beyond which the State may not proceed with a prosecution for the reason that an accused would experience difficulty in formulating a defense beyond that time. There is nothing in this record which would indicate any deprivation of a defense which logically could have led to a different result in this case.

Appellant contends the court erred in permitting evidence that the substance purchased by Officer Burton was LSD. He supports his position on the claim that there is an insufficient chain of custody of the purchased substance from the time Burton received it until it was tested at the State Police Laboratory in Evansville. The evidence shows that Officer Burton took possession of the LSD on March 21, 1986. He retained exclusive possession until he arrived at the State Police Post in Terre Haute, where he sealed and initialed the bag containing the LSD and placed it in an evidence locker.

On March 24, 1986, Michael Goldner, an evidence technician, removed the bag from the locker, checked the seal, and prepared the bag for mailing. On March 25, 1986, the bag was sent by certified mail to the Evansville laboratory. On March 26, 1986, Linda Hertel, who did not testify at the trial, received the sealed bag. She turned the bag over to Bill Shaeffer, who also did not testify at the trial. Shaeffer turned the bag over to William Boes II, who did testify at trial that he tested the contents of the bag and that it in fact contained LSD.

It is true that there must be a proper showing that an evidentiary item that passed through several hands did so in an undisturbed condition. Robles v. State (1987), Ind., 510 N.E.2d 660, cert. denied, 487 U.S. 1218, 108 S.Ct. 2872, 101 L.Ed.2d 907. From the time of the purchase from appellant until the exhibit arrived in court on the day of trial, it was clearly...