Ross v. State

• Citation: 360 N.E.2d 1015,172 Ind.App. 484
• Decision Date: 21 March 1977
• Docket Number: No. 1--576A69,1--576A69
• Parties: Edwin C. ROSS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1015

360 N.E.2d 1015

172 Ind.App. 484

Edwin C. ROSS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--576A69.

Court of Appeals of Indiana, First District.

March 21, 1977.

Rehearing Denied April 22, 1977.

Woodrow S. Nasser, Terre Haute, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

Defendant-appellant, Edwin C. Ross (Ross), was charged by information with delivery of a controlled substance, to wit: marijuana. He was convicted by a jury of that charge and now brings this appeal.

We affirm.

The facts most favorable to the verdict follow. Opha Presnell, a State Conservation Officer, was patrolling in Sullivan County with Deputy Murl Singleton of the Sullivan County Sheriff's Department on May 25, 1975, when they came upon an empty auto beside a road in a strip mine area. After stopping to investigate, they both walked to the top of a nearby 'stripper hill' and observed a group of young people, one of whom was Sheila Pinkston, a girl thirteen years of age. When she saw the officers, she threw a plastic bag down the hill. The officers retrieved the bag, and, suspecting it was marijuana, arrested those in the group. Two additional plastic bags were then found in the auto.

Thereafter, testimony by Sheila Pinkston served as the basis for the information against Ross. The information states in pertinent part:

'Sheila Marie Pinkston, being duly sworn upon her oath says that Edwin C. Ross late of said County of Sullivan, and State of Indiana, did then and there unlawfully deliver a controlled substance, to wit: marijuana, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Ross was so charged by information on May 27, 1975.

Ross first alleges that the trial court erred in overruling his motion to dismiss. In his motion, Ross contended that what is now codified as IC 1971, 35--24.1--1--1 et seq. (Burns Code Ed.) and subsequent acts pertaining to marijuana and penalties applicable thereto are unconstitutional as violating the proscription of cruel and unusual punishment in the Eighth Amendment and the equal protection provision of the Fourteenth Amendment, both to the U.S. Constitution. Further, he contended that the information failed to specify the criminal charge with sufficient certainty to inform him of the exact charge against him.

Ross's contention that the penalty for delivery of marijuana (5 to 20 years) is cruel and inhuman punishment is a subjective appraisal by Ross which is directed to the wrong branch of government. As stated in Vacendak v. State (1976), Ind., 340 N.E.2d 352:

'The determination of appropriate penalties for crimes committed in this State is a function properly exercised by the legislature. The Judiciary will disturb such a determination only upon a showing of clear constitutional infirmity.' (Citations omitted).

Ross has made no such showing.

It is argued that the classification of marijuana with 'hard narcotic drugs', amphetamines, and barbiturates for penalty purposes is irrational and thus violative of the equal protection clause of U.S.Const. amend. XIV, § 1. For this proposition, Ross cites State v. Anonymous (1976), 32 Conn.Supp. 324, 355 A.2d 729, a Connecticut Superior Court decision. We observe that that court, unlike the trial court in the case here at bar, had before it extensive testimony and data regarding the properties and use of marijuana. Such testimony and data apparently convinced the Connecticut Superior Court that marijuana was miscast when it was classified with certain other controlled drugs and substances.

As Justice Prentice stated in Sidle v. Majors (1976), Ind., 341 N.E.2d 763:

'. . . we recognize that the Legislature is vested with wide latitude of discretion in determining public policy. Therefore, every statute stands before us clothed with the presumption of constitutionality, and such presumption continues until clearly overcome by a showing to the contrary.'

Conflict among the experts, scientific data, the courts, and lay opinion is as prevalent today as it was when the Legislature classified marijuana in the manner that it did. In time, perhaps facts will surface which will resolve the issue and demonstrate conclusively that there is no rational basis for the classification of mjrijuana with certain other controlled drugs and substances. As no such facts are here in evidence, we defer to the expressed judgment of the Legislature in this matter, the presumption of constitutionality of that judgment not having been overcome.

As to Ross's argument that marijuana is no more harmful than alcohol or tobacco, we subscribe to the succinct logic used in United States v. Kiffer (2nd Cir. 1975), 477 F.2d 349, cert. denied, 414 U.S. 831, 94 S.Ct. 62, 38 L.Ed.2d 65 and quoted in State v. Strong (1976), S.D., 245 N.W.2d 277:

'If Congress decides to regulate or prohibit some harmful substances, it is not thereby constitutionally compelled to regulate or prohibit all. It may conclude that half a loaf is better than none.'

Ross has failed in his constitutional attacks on the statutes.

The remaining issue concerning the overruling of Ross's motion to dismiss is that of the alleged defective information. Ross asserts that the information, heretofore set forth, contravenes Ind.Const. art. 1, § 12 in that it does not properly advise him of the charges against him and does not advise him of the identity of the alleged receiver of the controlled substance or any other facts necessary to the preparation of a defense and avoidance of double jeopardy. Ross argues that because the information does not advise him of the 'exact setting' and person to whom the alleged delivery of the controlled substance was made, the State could, theoretically, use the vague information repeatedly, thereby putting Ross in multiple jeopardy for a solitary violation.

We are satisfied that the offense charged in the information is stated with such certainty that the accused, the court, and the jury could determine the crime for which conviction was sought. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686.

If Ross had made multiple deliveries of marijuana in Sullivan County on May 24, 1975, we can appreciate that he might have some difficulty determining the specific crime for which conviction was being sought and some difficulty preparing an intelligent defense. That possibility exists with any offense which is subject to repetition, and, as we see it, only by making time of the essence for such offenses and requiring that the time of the offense be specified in an information will an accused be positively apprised of the specific offense being charged. Despite that reasoning, we will not impair the efficacy of the information simply because an accused has or could have committed repeated offenses on the date alleged in the information. The information in the case at bar complies with IC 1971, 35--3.1--1--2 (Burns Code Ed.). We find no error in the overruling of the motion to dismiss.

Ross has, in separate assertions, alleged error by the trial court in its admission of testimony by one Paul E. Asa, an Indiana State Police chemist, and its admission into evidence of State's Exhibit #4, an Indiana State Police laboratory report. As these issues are interrelated, we shall group them for purposes of discussion.

Ross contends that because the State failed to comply with a discovery order, neither the testimony of Paul Asa nor State's Exhibit #4 should have been admissible. Generally, the proper remedy for the State's failure to comply with a discovery order is an order compelling compliance or a continuance. Upshaw v. State (1976), Ind.App., 352 N.E.2d 102; Buchanan v. State (1975), Ind., 336 N.E.2d 654. The record discloses only an objection at trial to the introduction of State's Exhibit #4. By failing to invoke the proper remedy, Ross has waived any error. Additionally, it appears from the record that Ross had prior knowledge of the witness and the exhibit and was not surprised by the State.

It is next alleged that the trial court erred in refusing Ross's motion to strike Paul Asa's testimony. Ross contended at trial and contends here that Paul Asa was not properly qualified as an expert witness in that it was not shown that he had received any special training.

It is within the discretion of the trial court to determine the expertise of a witness. Guyton v. State (1973), Ind.App., 299 N.E.2d 233. Asa testified that he was an Indiana State Police technician specializing in blood alcohol and marijuana analysis and had been so engaged for approximately nine or ten years. As an expert may be qualified by either practical experience or formal training, Guyton, supra, we find no abuse of discretion or error by the trial court on this issue.

Ross contends that the trial court erred in admitting into evidence, over his objection, State's Exhibits 1, 2 and 3. These exhibits were three bags of marijuana, #1, retrieved from where it had been thrown by Pinkston and #2 and #3 discovered as the result of a search of the aforementioned empty auto. He urged that the exhibits should be excluded in that they were seized in the course of an illegal search (fruit of the poison tree doctrine). U.S.Const. amend. IV.

From the facts of this case, it appears that no one's Fourth Amendment rights were violated. More important though, Ross had no proprietary interest in either the bags of marijuana or the auto searched; neither was he even present at the time of the search. He had no standing to assert the Fourth Amendment rights of another. Mabra v. Gray (7th Cir. 1975), 518 F.2d 512.

It is alleged that the trial court erred when, over Ross's objections, it permitted State's witness John Danberry to testify regarding the results of polygraph examinations given to Ross and Pinkston....