Plowman v. State

• Decision Date: 21 December 1992
• Docket Number: No. 42A05-9205-CR-138,42A05-9205-CR-138
• Citation: 604 N.E.2d 1219
• Court: Indiana Appellate Court
• Parties: Marlin PLOWMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 1219

604 N.E.2d 1219

Marlin PLOWMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 42A05-9205-CR-138.

Court of Appeals of Indiana Fifth District.

Dec. 21, 1992.

Rehearing Denied Jan. 27, 1993.

Christopher A. Ramsey, Ramsey & Black, Vincennes, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

Defendant-appellant Marlin Plowman was convicted on five counts of Dealing in a Schedule I Controlled Substance ¹ and three counts of Maintaining a Common Nuisance ² in connection with his drug sales to an undercover police officer. He raises two issues for our review which we restate as:

1) Whether the 30-month delay between the illegal acts charged and Plowman's arrest denied him the right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution?

2) Whether the evidence is sufficient to sustain Plowman's conviction on three counts of Maintaining a Common Nuisance?

We affirm in part, reverse in part and remand.

In January, 1987, the Indiana State Police Department, with the assistance of a confidential informant, began an investigation into Plowman's suspected drug activities. On January 22, Police Detective Mike Hildebrand was working as an undercover narcotics agent and met with Plowman at the S & S Tavern in Vincennes, Indiana, an establishment owned by Plowman. While at the tavern, Plowman sold Detective Hildebrand two hundred dosages of Lysergic Acid Diethylamide (LSD), a Schedule I controlled substance. On January 27, Detective Hildebrand again met with Plowman, this time at Plowman's home. During that meeting, Plowman sold Detective Hildebrand more LSD in tablet form. A third transaction, conducted at a saloon in Vincennes, involved the sale by Plowman of one thousand dosages of the drug.

On February 10, 1987, Plowman and Detective Hildebrand met again at the S & S Tavern where Plowman sold Detective Hildebrand LSD worth $100.00. On February 28, Detective Hildebrand met with Plowman for a final transaction at the tavern where Plowman offered to sell Detective Hildebrand one thousand dosages of LSD. Detective Hildebrand accepted the offer whereupon Plowman exited the tavern and approached a vehicle belonging to Plowman's wife. Plowman opened the passenger door of the vehicle and retrieved from the glove compartment a clear plastic bag containing LSD tablets. Plowman gave the drugs to Detective Hildebrand in return for $1,350.00.

On March 4, 1988, the State charged Plowman with five counts of Dealing in a Schedule I Controlled Substance and three counts of Maintaining a Common Nuisance, and a warrant was issued for his arrest. Police arrested Plowman on August 16, 1989, after authorities apprehended him in Thompsonville, Michigan. A jury trial was initially scheduled for November 13, 1989, but because of Plowman's numerous requests for continuance, trial did not commence until December 16, 1991.

Prior to trial, Plowman filed a motion to dismiss the charges against him claiming the State's 12-month delay in filing charges coupled with the 18-month delay after the information was filed and before his arrest violated his constitutional right to a speedy trial and to due process of law. The trial court denied the motion and the case proceeded to trial. Plowman was convicted and sentenced on all counts. He now appeals.

I.

Plowman contends the trial court erred in denying his motion to dismiss. According to Plowman the 30-month delay between the time the offenses allegedly occurred and the time of his arrest denied him due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. ³ Plowman claims the passage of time impaired the memories of certain alibi witnesses and thereby prevented him from presenting an effective defense.

While the legislatively-enacted statute of limitations fixes the primary guarantee against pre-arrest delay, due process considerations may require dismissal where criminal proceedings are initiated within the statute but sufficiently after the offense occurred to constitute prejudice to the defendant. McMorris v. State (1979), 181 Ind.App. 519, 392 N.E.2d 820. ⁴ However, the mere passage of time is not presumed to be prejudicial; rather, defendant carries the burden of proving undue prejudice resulted from the delay. Patterson v. State (1986), Ind., 495 N.E.2d 714. In addition the defendant must also establish that the delay was unjustified. Lusher v. State (1979), 181 Ind.App. 63, 390 N.E.2d 702.

In the case before us, Plowman's claim of prejudice based on his witnesses' inability to remember events occurring in 1987 is unpersuasive. Although Plowman's witnesses exhibited some memory loss upon cross-examination by the State, the same witnesses showed no signs of fading memories during Plowman's direct examination. The mere allegation that the passage of time operated to impair the memories of witnesses is insufficient to show Plowman's defense was hampered by the pre-arrest delay. McMorris, supra.

Even if Plowman had demonstrated prejudice from the delay, his claim would nonetheless fail because he has not shown the delay was unjustified. The record reveals the confidential informant in this case was assisting officers of the Indiana State Police in their investigation of numerous suspected drug dealers. In order to protect the identity of the informant the officers delayed presenting their cases to the prosecutor until the investigation was completed in the summer of 1987. A delay caused by the necessity of protecting the identity of an informant is not improper or unjustified. See McMorris, supra. Ultimately, the officers submitted investigative material to the prosecutor on 26 potential defendants including Plowman. A November, 1987 target date was scheduled for the cases to be processed and charges filed. The charging information in this case was not filed by the prosecutor until March, 1988, and the cause of the delay...