Sargent v. State, 372A127
| Decision Date | 10 October 1972 |
| Docket Number | No. 372A127,372A127 |
| Citation | 287 N.E.2d 795,153 Ind.App. 430 |
| Parties | Dwight SARGENT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Frederick J. Graf, Martz, Beattey, Hinds & Wallace, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.
Defendant appeals from a sentence of one to five years pursuant to a jury verdict finding him guilty of possession of a 'needle, cooker and eye-dropper with intent to unlawfully administer and use narcotic drugs . . ..' 1 His indictment on that charge resulted from discovery by police of the specified articles during defendant's arrest on a warrant issued in an unrelated case. The arrest was made at an apartment in the City of Indianapolis where defendant, aged nineteen, resided with his mother and brothers.
Defendant has argued three contentions of trial court error:
'1. Error in overruling defendant's pretrial motion to suppress evidence.
2. Error in failing to conduct an intratrial hearing on whether to order the State to produce a transcript of Officer Ingram's testimony before the grand jury.
3. Error in that the evidence of intent was insufficient to sustain the conviction.
The motion to suppress charged that 'certain evidence' (apparently the needle, cooker and eyedropper, called by heroin users an 'outfit') was seized as the result of a search which was unreasonable in that it was without defendant's consent, without a search warrant, and not incident to a valid arrest. In other words, that there was a search which was illegal. No attack, however, is made on the validity of the arrest warrant by virtue of which the arresting officers entered the apartment and arrested defendant. And the evidence most favorable to the state, at the hearing on the motion to suppress, is that the articles seized were in plain view 2, hence there was no search. Alcornv. State (1970), Ind., 265 N.E.2d 413, 416, 24 Ind.Dec. 268, 273; Ford v. State (1971), Ind., 275 N.E.2d 808, 810, 28 Ind.Dec. 155, 157; Presley v. State (1972), Ind.App., 284 N.E.2d 526, 31 Ind.Dec. 592.
Incidental to this claim of error defendant contends the court erred in granting the State a continuance (or recess) of the pretrial hearing so the prosecutor could obtain a witness: the police officer who had seized the articles and who, when produced at the second session of the hearing, testified that they were in plain view. Since the State had failed to subpoena the officer the court would have been justified in denying the request for continuance, but there was no abuse of discretion in granting it. Spangler v. United States Rubber Co. (1962), 133 Ind.App. 468, 470, 183 N.E.2d 212, 213; Walker v. State (1970), Ind., 262 N.E.2d 641, 644, 23 Ind.Dec. 104, 109; Johnson v. United States (CA 8, 1961), 291 F.2d 150, 153, cert. den. 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80.
At the trial, during cross-examination of this same police officer (Ingram) it was brought out that he probably had testified before the grand jury, although he said his memory of having done so was not certain. Defendant's counsel then moved 'to have produced the testimony at the grand jury of this witness concerning this case.' The trial deputy prosecutor, when asked by the court whether he 'or anyone else in the Prosecutor's office that you know of' had ever had 'a substantially verbatim transcript' of the witness' testimony, replied in the negative. The court then denied the request with the remark that, 'He can't produce what he doesn't have.'
Defense counsel at no time made any request for a hearing and made no further attempt to show that a transcript of Officer Ingram's grand jury testimony was in the Prosecuting Attorney's possession or that the State could, or probably could, effect its production even though it was not in the prosecutor's possession. Nor did the defense make any attempt to show that any recording was ever made of the witness' grand jury testimony, either stenographically, electronically, or otherwise.
The Supreme Court of Indiana has included in its Rules of Criminal Procedure 3 no provision concerning discovery, but has said in an opinion:
(Original emphasis.) Antrobus v. State (1970), 253 Ind. 420, 423, 254 N.E.2d 873, 874.
In that case the Indiana Supreme Court overruled Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271, and prior cases holding that defendants had no right under any circumstances to inspect transcripts of grand jury testimony, saying (with respect both to grand jury testimony and written statements given to the police, but with particular attention to the latter):
testimony in the present case.
(253 Ind. at 427, 254 N.E.2d at 877.)
In that case there was no direct evidence of probability that a substantially verbatim transcription of the witness' testimony was within the control of the prosecution. Nevertheless the court said:
'Applying the foundation requirements set out above it is obvious that a substantially verbatim transcription of the witness' grand jury testimony concerning this case was shown to probably be within the control of the prosecution.
'This fully met the foundation requirements set out above.'
The only evidence from which the court could have concluded that such probability was obvious was the witness' testimony that he had testified before the grand jury. The court apparently assumed, sub silentio, that the statutory requirement that a clerk or stenographer take and preserve grand jury testimony for the use of the prosecuting attorney 4 justified the inference that one had done so. Since the evidence here is substantially the same, it is clear here also that the defendant had 'fully met the foundation requirements'. Thus the only reason for not granting the defendant's motion was the State's allegation that no transcript of the witness' grand jury testimony was within its control. In that situation the trial court's duty is clear. It 'must conduct a hearing on the conflicting claims of the parties . . ..' (253 Ind. 427, 254 N.E.2d 877.) 5 Had it done so, the court, the defendant, and the witness would probably have heard testimony proving to their satisfaction that the witness was mistaken about having testified before the grand jury in this case. Unfortunately that fact was not brought out until the State filed a response to the defendant's amended motion to correct errors. To that response was appended an affidavit of the deputy prosecutor in charge of the grand jury investigation of this case which makes that fact certain. Error in failing to conduct a hearing has thus been rendered harmless.
Defendant also contends there was insufficient evidence of intent; a contention so...
To continue reading
Request your trial
-
Cooper v. State
...Hauger v. State (1971), 255 Ind. 666, 266 N.E.2d 197; Bradley v. State (1972), 153 Ind.App. 421, 287 N.E.2d 759; Sargent v. State (1972), 153 Ind.App. 430, 287 N.E.2d 795. This case closely parallels the factual setting in Stevens, supra. In Stevens, specific intent was satisfactorily demon......
-
Bradley v. State, 2--572A3
...on Defendant's hands and arms. The Supreme Court affirmed the conviction on the authority of Von Hauger v. State, supra. Sargent v. State (Ind.App.1972), 287 N.E.2d 795, followed Von Hauger v. State, supra, and Eskridge v. State, supra. The evidence sustaining the Sargent conviction was an ......
-
Moulder v. State
...v. Wright (1972), Ind.App., 287 N.E.2d 255. For recent cases dealing with the right to obtain pre-trial discovery see Sargent v. State (1972), Ind.App., 287 N.E.2d 795 and Auer v. State (1972), Ind.App., 289 N.E.2d 321.3 A typical example of the philosophy of the courts is set forth in Stat......
-
Auer v. State
...hearing on the conflicting claims of the parties to resolve this issue.' As Judge White points out in his opinion in Sargent v. State (1972), Ind.App., 287 N.E.2d 795, 798 in footnote 5, the conflict between Antrobus, supra, and Yeary, supra, appears to be unresolved. As Yeary, supra, is th......