Robinson v. State

• Decision Date: 15 June 1994
• Docket Number: No. 39A05-9208-CR-296,39A05-9208-CR-296
• Citation: 634 N.E.2d 1367
• Parties: Danny R. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1367

634 N.E.2d 1367

Danny R. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 39A05-9208-CR-296.

Court of Appeals of Indiana Fourth District.

June 15, 1994.

Brent Westerfeld, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Danny R. Robinson appeals his conviction for dealing in cocaine, a class A felony. ¹

We affirm.

ISSUES

Robinson raises the following issues for our review:

1. Whether his fundamental rights to cross-examination and a fair trial were violated when a State witness refused to answer defense questions on Fifth Amendment grounds.

2. Whether the trial court erred in permitting the State to refresh the recollection 3. Whether the trial court erred in permitting a State witness to identify a substance as crack cocaine.

of a witness with case reports when the witness claimed little or no independent memory of the activities described within the report.

4. Whether a variance between the allegations of the charging information and the proof at trial necessitates reversal of his conviction.

5. Whether the trial court erred in admitting certain testimony about prior drug-related activities.

6. Whether the trial court erred in permitting testimony as to the weight of the cocaine delivered.

FACTS

On January 9, 1990, confidential informant Marcus Ben Smith and Indiana State Trooper, M.E. Dexter, working undercover, met Robinson to buy cocaine from him. Smith had previously met Robinson in jail and had set up the meeting. In fact, he had set up a similar meeting in November of 1989, a meeting in which Robinson allegedly sold cocaine and marijuana to the pair.

On January 9, Dexter gave Robinson $280 to buy an eight ball of cocaine. Robinson left the area with the promise to return with the drug. Upon his return, he handed a plastic baggie of white powder to Smith, which Dexter quickly took possession of. The powder in the baggie was later analyzed and weighed at a police laboratory. The lab determined the baggie contained 3.23 grams of cocaine.

Robinson was arrested and charged with dealing cocaine and marijuana in November, 1989, and with dealing cocaine on January 9, 1990. A jury found Robinson not guilty on the charges pertaining to the November transaction and guilty on the dealing in cocaine charge pertaining to the January 9, 1990, transaction. Robinson now appeals his conviction.

Additional facts are given below as they pertain to the issues discussed.

DISCUSSION AND DECISION

I. DENIAL OF RIGHT OF CONFRONTATION

During a pre-trial deposition and at trial, Smith refused to give the details of drug transactions unrelated to his dealings with Robinson. On both occasions, Smith's refusal followed an advisement by the prosecutor of Smith's right against self-incrimination under the Fifth Amendment to the United States Constitution. The trial court ruled that Smith's invocation of the Fifth Amendment did not impermissibly limit cross-examination by Robinson.

Robinson contends the State's advisement to Smith, and the trial court's approval of the advisement, improperly denied him the right to cross-examination and a fair trial. He argues that Smith's refusal to answer questions about unrelated transactions prejudiced him by limiting his ability to inquire into the circumstances surrounding Smith's involvement in the January 9, 1990, transaction and limiting his inquiry into the extent of Smith's knowledge of drugs.

The right to confront witnesses granted by the United States Constitution includes the right of full, adequate and effective cross-examination, which is fundamental to a fair trial. Andrews v. State (1992), Ind.App., 588 N.E.2d 1298, 1302, reh'g denied (citing Braswell v. State (1990), Ind., 550 N.E.2d 1280). A trial court has the discretion to control the conduct of cross-examination, and only a clear abuse of discretion warrants reversal. Id. "A defendant objecting to a restriction on cross-examination must demonstrate how he was prejudiced by the trial court's action." Id.

In the present case, evidence of Smith's arrest on drug offenses, his agreement to set up twenty to thirty other drug dealers in exchange for withdrawal of the drug charges, his assistance in twenty-two drug investigations, and the fact that a possible sentence of over one hundred years was avoided by this assistance, was presented to the jury. Given this evidence, the jury was under no illusion concerning Smith's reasons Furthermore, Robinson was not prejudiced by his inability to inquire more directly into Smith's knowledge of drug dealing. In testifying about the January 9, 1990, transaction, Smith indicated only that he set up the transaction with Robinson and that Dexter accompanied him to the location of the transaction. Dexter provided the details of the transaction. Smith's knowledge of drug dealing was irrelevant to his testimony about the events of that day; the particulars of the transaction, including the nature and weight of the powder contained in the baggie, were provided by Dexter and a police chemist.

                for testifying or his character. 2  Robinson was not prejudiced by the limitation placed upon his questioning by the trial court allowing Smith to invoke the Fifth Amendment
                

Robinson argues that prejudice should be presumed. In support of his argument, he cites Pigg v. State (1992), Ind., 603 N.E.2d 154.

In Pigg, the defendant argued that he was denied a right to proper cross-examination under the Sixth Amendment to the United States Constitution when the trial court sustained a relevancy objection to questions about an informant's address. Id. at 155. Our supreme court outlined cases discussing the discretion possessed by courts to limit cross-examination and held that prejudice is presumed where an informant is the sole witness to a controlled buy with the defendant and there has been no in camera hearing affording a defendant the opportunity to show prejudice. Id. at 157. In so holding, the court distinguished Corbin v. State (1990), Ind., 563 N.E.2d 86, wherein the court held that an in camera hearing was not required and prejudice was not presumed when an informant is not the sole witness and his testimony is consistent with the testimony of other witnesses. Id. at 156.

In the present case, the trial court conducted in camera hearings in which Robinson was given an opportunity to show how he would be prejudiced by Smith's decision not to incriminate himself by testifying about uncharged and unrelated drug dealings. After considering Robinson's arguments, the trial court determined that such testimony was not relevant. As discussed above, we also find the testimony to be irrelevant. Thus, we hold that the trial court did not abuse its discretion in limiting cross-examination of Smith.

II. REFRESHING MEMORY OF THE WITNESS

Robinson contends the trial court committed reversible error in allowing the State to use a police report to refresh Smith's memory about the November, 1989, and January 9, 1990, transactions. We disagree.

As a general rule, it is acceptable to revive the memory of a witness by calling his attention to any thing, event, or fact having relation to the subject under inquiry. Ward v. State (1982), Ind., 438 N.E.2d 966, 968. The memory of a forgetful witness may be refreshed by a written memorandum prepared by himself or someone else. Gaunt v. State (1983), Ind., 457 N.E.2d 211, 216.

The record shows that the State made two attempts to refresh Smith's memory. The State first attempted to refresh Smith's memory about the November, 1989, transaction. The State further attempted to refresh Smith's memory about the date of the January, 1990, transaction. Even if we assume arguendo, that the trial court committed error in allowing the State to refresh Smith's memory about the November, 1989, transaction, there is no reversible error because Robinson was acquitted of the charges arising from that transaction. Furthermore, he specifically withdrew any objection to the refreshment of memory about the exact date of the second transaction. There is no basis to assert error when no objection was maintained at trial.

III. IDENTIFICATION OF CRACK COCAINE

Robinson contends the trial court committed reversible error in allowing Smith Before ever testifying about the cocaine in the pipe, Smith testified, without objection, that during the same transaction, Robinson handed him "cocaine." (R. 768). Dexter testified, without objection, that Robinson's partner was "rocking up cocaine" and preparing it to be smoked from a pipe. (R. 902-903). Reversal may not be predicated on the admission of evidence when evidence of the same probative value is admitted without objection. Fozzard v. State (1988), Ind., 518 N.E.2d 789, 792. Furthermore, Smith's identification of the drug, even if error, was harmless because Robinson was acquitted of the charges arising from the November, 1989, transaction.

to testify that he was offered a pipe with crack cocaine in it during the November, 1989, transaction. We disagree.

IV. VARIANCE BETWEEN THE CHARGING INFORMATION AND EVIDENCE AT TRIAL

Robinson contends a material variance existed between the information filed and the proof at trial. Specifically, he contends that the variance was material because the charging information asserted that he delivered the cocaine to Dexter while the evidence at trial showed that he handed the drug to Smith and Dexter removed it from Smith's possession. ³

A variance occurs where there is a difference between the crime charged and the proof adduced at trial. Graham v. State (1985), Ind.App., 480 N.E.2d 981, 992, reh'g denied, trans. denied, cert. denied 479 U.S. 1007, 107 S.Ct. 646, 93 L.Ed.2d 702 (1986). A variance will require reversal only if the variance is material. Grassmyer v. State (1981), Ind., 429 N.E.2d 248, 256. A variance is material only if it...