Romack v. State

• Decision Date: 31 March 1983
• Docket Number: No. 4-482A89,4-482A89
• Citation: 446 N.E.2d 1346
• Parties: James E. ROMACK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1346

446 N.E.2d 1346

James E. ROMACK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-482A89.

Court of Appeals of Indiana Fourth District.

March 31, 1983.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Defendant-appellant James Romack (Romack) appeals his conviction of dealing in a Class II substance, dealing in marijuana, and possession of marijuana. We affirm.

The record reveals that on May 6, 1980, Sheriff Bill Upp arrested Larry Cilk for possession of marijuana. Cilk secured a "deal" for himself by arranging an illegal drug transaction with Romack. Sheriff Upp provided Cilk with the funds necessary to purchase a pound of marijuana from Romack, and the sale occurred on May 10th in Salamonia Rest Park. Sheriff Upp and his deputies were stationed around the park, and at trial they testified that the following events transpired.

After Romack and Cilk arrived separately at the park, Romack remained in his jeep. Cilk walked over to him, gave him some money, walked around the jeep and removed a package from it which was later discovered to contain marijuana. The deputies then arrested Romack and found a baggie of marijuana during a pat-down search. The police next searched Romack's jeep and seized a rifle, two hundred tablets of methaqualone, and additional quantities of marijuana. The police took Romack to the county jail, searched him again and found fifteen or sixteen tablets of methaqualone and a hemostat.

On appeal, Romack raises nine issues for review:

1. Whether the trial court erred in admitting into evidence items seized in an unreasonable search of Romack's automobile;

2. Whether the verdict against Romack for possession of methaqualone with intent to deliver is supported by sufficient evidence;

3. Whether the State failed to prove beyond a reasonable doubt that Romack delivered over Thirty (30) grams of marijuana;

4. Whether it was prejudicial error to admit State's Exhibit 2, a semi-automatic sporting rifle;

5. Whether Cilk was erroneously permitted to testify concerning evidence the court had previously suppressed;

6. Whether portions of Cilk's and Sheriff Upp's testimony was inadmissible hearsay;

7. Whether the court erred in refusing to give the defendant's tendered final instructions 1, 2, 3 and 4.

8. Whether the court abused its discretion in permitting the deputy prosecutor to ask jurors prejudicial and intimidating questions during voir dire; and

9. Whether the court erred in denying Romack's motion for mistrial after one of the jurors was excused for bias.

I.

Romack contends that the police searches and seizures of exhibits 1, 3, 4, 5, 6, 7 and 8 were in violation of his Fourth Amendment rights. Romack believes that the searches were unreasonable, as the police had sufficient opportunity to obtain a search warrant. He therefore concludes that the court erred in denying his motion to suppress and in overruling his objections to the fruits of the warrantless search.

The Fourth Amendment preference for search warrants recognizes that the judgment to invade one's privacy is best made by a neutral judicial office. Johnson v. U.S., (1948) 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. This is a preference, however, and not an absolute requisite to a search. Romack is, in effect, contending that the judicially created exceptions to the search warrant requirement are inoperative when probable cause exists before the search and the police have time to obtain a warrant. We disagree.

Exceptions to the search warrant requirement are based on and justified by the existence of circumstances that would render obtaining a warrant unfeasible. One of those circumstances may be the unforeseeability of the search, in which case foreseeability is an issue in determining whether an exception exists; it is not a condition which precludes the application of an otherwise appropriate exception. The fact that the searches in the present case were foreseeable does not automatically render the admission into evidence of items thereby seized improper.

We believe that the searches of Romack and his jeep were valid searches incident to arrest. The courts have long recognized that police may conduct warrantless searches of an arrestee and the area within his immediate control. Chimel v. California, (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, Lindley v. State, (1981) Ind., 426 N.E.2d 398; Akins v. State, (1981) Ind., 429 N.E.2d 232; Johnson v. State, (1973) 157 Ind.App. 105, 299 N.E.2d 194; Ramirez v. State, (1972) 153 Ind.App. 142, 286 N.E.2d 219. The search and arrest must be contemporaneous not only as to place but also time. Hadley v. State, (1968) 251 Ind. 24, 238 N.E.2d 888. Romack does not claim, nor is there anything in the record which indicates a significant lapse of time between Romack's arrest and the searches of his person and jeep which would invalidate the seizures. Nor was the search without the scope of Romack's immediate control. See, Enlow v. State, (1955) 234 Ind. 156, 125 N.E.2d 250; Pettit v. State, (1934) 207 Ind. 478, 188 N.E. 784, authorizing the warrantless searches of automobiles incident to arrest.

As a matter of course, police conduct warrantless searches incident to arrest, theoretically for their own protection and to prevent the destruction of evidence by an arrestee. As the foundation for a search incident to arrest is the arrest, it must be lawful for the subsequent search and seizure to be likewise constitutional. Dowlut v. State, (1968) 250 Ind. 86, 235 N.E.2d 173. Romack does not contest the validity of his arrest, but implies that as the arrest was foreseeable, so was the search incident, and the police should have obtained a search warrant. We know of no precedent supporting this argument, nor any logical reasons which would compel such an imposition when the arrest is valid. Our decision does not contradict the Supreme Court's holding in Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In that case, the Court discussed foreseeability problems peculiar to automobile searches, not searches of automobiles incident to arrest. As none of the exhibits admitted at trial were the fruits of unreasonable searches, we find no error. ¹

II.

Romack also argues that the evidence supporting his conviction under I.C. 35-48-4-2(2) ² was insufficient in that it did not prove beyond a reasonable doubt his intent to deliver methaqualone. The relevant evidence of intent introduced by the State was the quantity of methaqualone in Romack's possession, his sale of marijuana to Cilk, and the fact that he carried a smaller quantity of methaqualone in his shirt pocket. There was no evidence in the record that Romack ever discussed a sale or offered to sell methaqualone to Cilk or any other person.

In deciding the issue of intent, we will not reweigh the evidence, but will only determine whether the relevant evidence was of sufficient probative value to warrant a determination of guilt. Henry v. State, (1978) 269 Ind. 1, 379 N.E.2d 132. Even though all of the evidence of intent is circumstantial, we need not find that it is adequate to overcome every reasonable hypothesis of innocence, but need only find that an inference of guilt may reasonably be drawn therefrom. Browder v. State, (1982) Ind.App., 431 N.E.2d 169; Thomas v. State, (1981) Ind.App., 423 N.E.2d 682; Comer v. State, (1981) Ind.App., 417 N.E.2d 1180.

First, Romack's sale of marijuana to Cilk is not direct evidence of intent to deliver methaqualone, but it does indicate that Romack was in the business of selling controlled substances. Second, Romack was carrying fifteen or sixteen tablets of methaqualone in addition to the two hundred tablets police found in his jeep. It is reasonable to infer that his purpose in separating the tablets into different portions was to retain the smaller amount for personal use and to sell the remaining larger quantity. The inference is especially strong as both quantities were within his immediate control. Third, there is the quantity itself.

Illegal possession of large quantities of narcotics does not create a presumption of intent to deliver, but may support an inference of intent. See Thompson v. State, (1980) Ind.App., 400 N.E.2d 1151; Stayton v. State, (1980) Ind.App., 400 N.E.2d 784; Gray v. State, (1967) 249 Ind. 629, 231 N.E.2d 793. The probative value of quantity in proving intent obviously increases as the quantity itself becomes greater, but there is some confusion as to how the State may prove that a particular quantity exceeds an amount which would be possessed for personal consumption.

At Romack's trial, the State failed to introduce expert testimony as to quantity and personal use. We believe that the importance of quantity was attenuated due to the absence of such testimony. In some circumstances, that omission would prove fatal, especially where there is evidence that the defendant is a drug user and where the amount of narcotics in possession is less than the quantity in the present case.

Despite the lack of expert testimony, we believe that it is reasonable to infer Romack's intent to deliver by considering the circumstantial evidence as a whole. There was sufficient evidence to support Romack's conviction for possession of methaqualone with intent to deliver.

III.

Romack challenges the jury's finding that he sold over 30 grams of marijuana to Cilk, as the determination of quantity elevated the offense from a Class A misdemeanor to a Class D felony. Romack's challenge is based on the police chemist's failure to remove non-narcotic substances before determining weight. He argues that in the absence of a quantitative analysis, the jury could only speculate as to the weight of the pure narcotic substance. In order to evaluate...