Prather v. State, No. 1--373A

• Docket Nº: No. 1--373A
• Citation: 158 Ind.App. 61, 301 N.E.2d 667
• Case Date: October 04, 1973

Page 667

301 N.E.2d 667 158 Ind.App. 61 Mike PRATHER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 1--373A.52. Court of Appeals of Indiana. First District. Oct. 4, 1973.

[158 Ind.App. 62]

Page 668

William R. Wilson, Hooper, Wilson & Hoffman, Lawrenceburg, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant (Prather) was convicted of sale of dangerous drugs (LSD) after a jury trial.

Prather's overruled motion to correct errors presents the following issues for review:

(1) Whether the court erred in permitting the testimony of a witness, whose name did not appear on the list of witnesses furnished defendant by the State.

(2) Whether the court erred in admitting an envelope containing pills alleged to have been LSD when the State did not show a complete chain of custody of the exhibit.

(3) Whether the court erred in refusing to declare a mistrial after the withdrawal of certain evidence from the jury.

(4) Whether the court erred in refusing to declare a mistrial following an alleged improper remark by the Prosecuting Attorney during final argument.

(5) Whether the evidence was sufficient to prove that defendant sold LSD.

The evidence most favorable to the State revealed that in December of 1971, Prather and one Fred Dausch, Jr. was employed at the same company in Lawrenceburg, Indiana. Dausch had asked Prather if he could get any LSD, and Prather had said he would try. On December 4, 1971, Dausch met Prather who sold him five pills for $12.00. Prather said these contained LSD. Later that evening Dausch took two [158 Ind.App. 63] of the pills at his home. He then became frightened at his reaction to the pills and told his parents he was on a bad trip. His parents called an ambulance, and he was taken to the Dearborn County Hospital. Before entering the ambulance, Dausch gave his father a tinfoil gum wrapper containing the three remaining pills. His father placed the pills on the table, and his mother picked them up and gave them to one of the ambulance attendants. At the hospital, the attendant gave the gum wrapper containing the pills to dr. Montgomery, who later gave them to Lawrenceburg Police Officer Larry Holt. Holt then delivered them to Lawrenceburg Police Chief Russell Cunningham, who conducted field tests which showed the pills contained LSD. After the tests, Cunningham delivered the pills to State Police Officer Paul Alford, who gave them to State Police Officer Howard Henry. The pills were subsequently passed to James Forbes, a State Police laboratory chemist in Indianapolis.

On January 7, 1972, Forbes returned the envelope containing the pills to Henry, who took them to the Evidence Room at the Versailles State Police Post where they

Page 669

remained until September 22, 1972, when Henry delivered it to Ann Rummel at the State Police Laboratory. Miss Rummel testified she conducted tests and determined that the pills contained LSD.

The envelope containing the pills was admitted into evidence and displayed to the jury at the close of Miss Rummel's direct examination. On cross-examination she testified that, as required, she inventoried the contents of the envelope. A comparison of her inventory with that of Forbes revealed that the tinfoil packet which she found had not been present when Forbes received the exhibit. Prather then objected, contending that the exhibit had obviously been tampered with. The court sustained the objection. The exhibit was withdrawn, and the jury was admonished to disregard the exhibit and all testimony concerning its contents.

[158 Ind.App. 64] Prather first contends that the trial court erred in allowing the testimony of State's witness Patricia Taggart. He objected when she was called on the grounds that her name had not been included on the State's list of intended witnesses furnished the defendant. Prather's objection was overruled, and the witness was permitted to testify.

Prather argues that the permission of this testimony amounted to a denial of due process of law, citing Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60. In that case, the trial judge granted defendant's motion for the production of the names and addresses of witnesses and issued an order directing the State to comply. However, at trial, the State presented four witnesses whose names had not been furnished to the defendant. Our Supreme Court held that only a showing of paramount interest in nondisclosure could justify the State's failure to fully comply with the order. Notwithstanding the fact that he failed to move for a continuance when the witnesses were called, the defendant's conviction was reversed.

More recently, our Supreme Court, in Gregory v. State (1972), Ind., 286 N.E.2d 666, held that the proper remedy for a defendant to pursue when a surprise witness is called...