Perry v. State, No. 54S00-8702-CR-205

Docket NºNo. 54S00-8702-CR-205
Citation541 N.E.2d 913
Case DateJuly 31, 1989
CourtSupreme Court of Indiana

Page 913

541 N.E.2d 913
Terry L. PERRY, Appellant,
v.
STATE of Indiana, Appellee.
No. 54S00-8702-CR-205.
Supreme Court of Indiana.
July 31, 1989.

Page 914

June D. Oldham, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of three counts of Dealing in a Schedule II Controlled Substance, Class B felonies, for which he received three twenty (20) year sentences, each enhanced by thirty (30) years by reason of his status as an habitual offender.

The facts are: On January 28, 1985, Rick Robinson, an informant, met with State Police Officers Snider and Peevler for the purpose of placing a telephone call to appellant. Robinson testified that he called appellant and inquired about purchasing some cocaine and crystal, also known as methamphetamine. Using $25 of buy money, Robinson visited appellant in his trailer and purchased some crystal, then returned to the car where Officer Peevler was waiting.

The following evening Robinson called appellant to arrange another drug purchase, and police recorded their conversation.

Robinson and Officer Snider drove to appellant's trailer, and Robinson purchased more crystal and ten pills with $85 of the buy money supplied by police. Expert testimony established that the drugs Robinson obtained were all schedule II controlled substances.

Appellant argues he was denied due process of law because he was convicted despite the fact that he was incompetent to stand trial. He filed a motion suggesting he was incompetent to stand trial due to the fact that he has a history of serious drug abuse and he had lost touch with reality due to his consumption of pain killers prescribed after his recent surgery.

The test of competence to stand trial is whether the defendant has sufficient present ability to consult his lawyer with a reasonable degree of rational understanding and whether he has a rational and factual understanding of the proceedings against him. Perry v. State (1984), Ind., 471 N.E.2d 270. The trial court has discretion to determine whether there are reasonable grounds to believe the accused is incompetent to stand trial and that decision will be reviewed only for an abuse of that discretion. Hurley v. State (1983), Ind., 446 N.E.2d 1326.

The trial court conducted a hearing to determine appellant's competence to stand trial. At the hearing, appellant testified that he was "high" and that he felt light-headed. He also stated that Officer Peevler had given him a $30 bag of heroin each day that he had been in jail, which Officer Peevler denied doing. He could answer questions on direct and cross-examination, though some of his answers seemed irrational or were non sequiturs. He was asked whether he was groggy that morning,

Page 915

and he replied, "Am I groggy, no I'm not groggy!" He was told to just answer the question, and he responded, "No, yes, I'm groggy." He then said he felt high.

The trial court ordered that the trial be continued for a day so that blood tests could be taken from appellant and analyzed. The results of the blood tests showed that valium was present in appellant's system in an amount that was a therapeutic level, and no heroin was in his blood. The trial court made the following determination:

"... From what I've seen in Court and what I've heard in the way of evidence in the last two days, leads me to believe that Mr. Perry very well understands the proceedings and he knows what's going on and knows what he's doing. He is continually talking to his attorney and giving him suggestions and asking him to make statements and do things. I think he is, in fact, assisting in his defense and assisting in the proceedings of the case and I do not, although some of the behavior is unusual or out of the ordinary, I do not believe it rises to the level of any suggestion of incompetency."

The trial court found there were no reasonable grounds to believe that appellant lacked the ability to understand the proceedings or to assist in the preparation and conduct of his case.

The trial judge was in the best position to observe appellant's demeanor and determine whether he had a rational understanding of the proceedings. We find no abuse of discretion under these circumstances. Perry, supra.

Appellant argues the trial court's refusal to admit into evidence results of a polygraph examination and related exhibits denied him a fair trial. At trial, Roger Sloane testified that it was he who sold drugs to Robinson at appellant's trailer, not appellant. In an offer to prove away from the jury, Lieutenant Wilson testified that he administered polygraph examinations to Sloane and it was his opinion that Sloane was telling the truth about who sold drugs to Robinson.

No stipulation was made by the parties concerning the admission of the polygraph examination results. Appellant acknowledges precedent that absent a stipulation, the results of polygraph examinations are inadmissible, citing Evans v. State (1986), Ind., 489 N.E.2d 942. He asserts, however, that in light of the holding in Rock v. Arkansas (1987), 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37, the test results should have been admitted despite the lack of a stipulation.

In Rock, the trial court refused to admit the defendant's hypnotically-induced testimony that her gun had misfired and she was convicted of manslaughter. The Supreme Court held that in applying a state rule of evidence which automatically excluded all hypnotically-induced testimony, the trial court must evaluate whether the interests served by the rule justify the limitation imposed on the defendant's constitutional right to testify. Id. at 54, 107 S.Ct. at 2711, 97 L.Ed.2d at 49. It was determined that the Arkansas law which excluded such testimony per se denied a criminal defendant's right to testify on his or her own behalf. Appellant believes his case is analogous to Rock and the polygraph evidence should have been admitted.

Appellant's case is distinguishable from Rock in several aspects. It was a defense witness's testimony, and not appellant's, which was excluded at trial. Additionally, the content of the excluded testimony was admitted when Sloane testified; the purpose of the proffered polygraph examination results was to bolster the credibility of Sloane's testimony. We have held that the degree of accuracy of polygraph examinations is not sufficient to mandate their admission on the question of guilt or innocence absent some form of waiver or stipulation by the parties. Vacendak v. State (1976), 264 Ind. 101, 340 N.E.2d 352. The trial court did not err in excluding the evidence.

Appellant contends the trial court erroneously admitted State's Exhibits Nos. 1 through 5 into evidence. The exhibits were packets which contained the controlled

Page 916

substances purchased by Robinson from appellant. Appellant objected to their admission at trial on the basis that an insufficient chain of custody had been established.

The record shows that Robinson gave the drugs to police officers after he obtained them on January 28 and 29 of 1985. Officer Snider kept the drugs in his squad car until they were mailed to the State Police Laboratory on January 30, 1985. Appellant maintains that because Officer Snider admitted that there may have been other people in his car while the drugs were kept there, the State failed to show that the evidence passed through the various hands in an undisturbed condition.

At trial, appellant challenged the chain of custody on the ground that the certified mail receipt had been lost and the evidence may have been contaminated between the time Officer Snider put it in the mailbox to the time it arrived at the laboratory. No objection to the chain of custody was made on the ground that the evidence may have been contaminated while in Officer Snider's car. Appellant cannot base his current allegation of error on an unrelated objection made at trial. Lewis v. State (1987), Ind., 511 N.E.2d 1054.

Additionally, the chain of custody was sufficiently established at trial. The proper showing of a chain of custody must give reasonable assurance that the property passed through the hands of the parties in an...

To continue reading

Request your trial
36 practice notes
  • In re Termination of the Parent-Child Relationship of ET, No. 02S03-0308-JV-367.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2004
    ...performance (Brant Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind.Ct.App.1987)); log sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind.1989); Reynolds/Herr v. State, 582 N.E.2d 833 (Ind.Ct.App.1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind.1983)); medical rep......
  • In re Matter of E.T., No. 02S03-0308-JV-367 (IN 5/20/2004), No. 02S03-0308-JV-367
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2004
    ...performance (Brant Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind. Ct. App. 1987)); log sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind. 1989); Reynolds/Herr v. State, 582 N.E.2d 833 (Ind. Ct. App. 1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind. 1983)); med......
  • Dill v. State, No. 53S01-0008-CR-504.
    • United States
    • Indiana Supreme Court of Indiana
    • February 7, 2001
    ...that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind.1984); Fehlman v. State, 199 I......
  • Payne v. State, No. 49A02-9405-CR-00288
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1995
    ...exception, especially in the absence of evidence suggesting that the record is not authentic. Id.; see also Perry v. State (1989) Ind., 541 N.E.2d 913, 918 (unavailability not listed as a foundational requirement); Knuckles, supra, 549 N.E.2d at 87 (unavailability not listed as a foundation......
  • Request a trial to view additional results
36 cases
  • In re Termination of the Parent-Child Relationship of ET, No. 02S03-0308-JV-367.
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2004
    ...performance (Brant Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind.Ct.App.1987)); log sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind.1989); Reynolds/Herr v. State, 582 N.E.2d 833 (Ind.Ct.App.1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind.1983)); medical rep......
  • In re Matter of E.T., No. 02S03-0308-JV-367 (IN 5/20/2004), No. 02S03-0308-JV-367
    • United States
    • Indiana Supreme Court of Indiana
    • May 20, 2004
    ...performance (Brant Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind. Ct. App. 1987)); log sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind. 1989); Reynolds/Herr v. State, 582 N.E.2d 833 (Ind. Ct. App. 1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind. 1983)); med......
  • Dill v. State, No. 53S01-0008-CR-504.
    • United States
    • Indiana Supreme Court of Indiana
    • February 7, 2001
    ...that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved. Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Patrick v. State, 516 N.E.2d 63, 65 (Ind.1987); Coleman v. State, 465 N.E.2d 1130, 1133 (Ind.1984); Fehlman v. State, 199 I......
  • Payne v. State, No. 49A02-9405-CR-00288
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1995
    ...exception, especially in the absence of evidence suggesting that the record is not authentic. Id.; see also Perry v. State (1989) Ind., 541 N.E.2d 913, 918 (unavailability not listed as a foundational requirement); Knuckles, supra, 549 N.E.2d at 87 (unavailability not listed as a foundation......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT