Schwartz v. State, 3-676A155

• Decision Date: 16 August 1978
• Docket Number: No. 3-676A155,3-676A155
• Citation: 177 Ind.App. 258,379 N.E.2d 480
• Parties: David SCHWARTZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 480

379 N.E.2d 480

177 Ind.App. 258

David SCHWARTZ, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-676A155.

Court of Appeals of Indiana, Third District.

Aug. 16, 1978.

Howard E. Petersen and Richard K. Muntz, LaGrange, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant David Schwartz (Schwartz) was tried and convicted by jury on two counts of delivery of a controlled substance pursuant to IC 1971, 35-24.1-4.1-2 (Burns Code Ed.): ¹ Count I, delivery of non-narcotic marijuana, and Count II, delivery of lysergic acid diethylamide (LSD). He was sentenced to a five-year term in prison with a $500 fine as to Count I, and an eight-year term in prison with an $800 fine as to Count II, the sentences being concurrent. Following denial of a timely motion to correct errors, Schwartz perfected this appeal.

Appellant raises numerous errors which, contrary to the State's arguments, have all been preserved for review.

Appellant maintains that he was denied due process of law in that the initiation of prosecution was unreasonably delayed; the charging affidavit contained a variance from proof; the trial court failed to hold a hearing on a motion in limine as requested; the trial court failed to grant a new trial in light of newly discovered evidence; and the State destroyed the evidentiary substance LSD in testing procedures. Appellant also argues that certain instructions and evidentiary rulings at trial were erroneous. Further, appellant contends that former testimony of a witness from a previous hearing was improperly excluded and that the verdict is contrary to law due to insufficient proof of the elements of the offense.

The evidence most favorable to the State reveals that during July of 1974, Officer Louis Cinko (Cinko) of the narcotics section of the Indiana State Police was conducting an undercover investigation, with the assistance of an informer, of individuals engaged in illegal drug trafficking. While conducting an investigation of an alleged dealer named LaRosa, Cinko was introduced to appellant. On July 26, 1974, Officers Cinko and Pinnell went to the residence of appellant looking for LaRosa, who had been residing there. LaRosa was not present, but appellant invited the officers into his home. Thereafter pursuant to appellant's offer to sell, Cinko purchased a quantity of Columbian marijuana and a tablet of LSD from Schwartz. On November 8, 1974, appellant was charged with the sale of these substances.

Appellant first alleges that the more than three month delay between the crime and his arrest constitutes a denial of his due process rights. As discussed in Burress v. State (1977), Ind.App., 363 N.E.2d 1036, such a delay must be unreasonable and defendant must demonstrate actual prejudice thereby before due process will be violated. Here, the State maintains that there was not an unreasonable period before arrest, attributing the delay to the fact that Officer Cinko was engaged in an ongoing investigation during this time lapse utilizing the same informant and thus not wanting to jeopardize his source of information. At trial, Schwartz testified that he was present at a rock festival in Sedalia, Missouri on the date that the drug purchase was made. In attempting to prove actual harm caused by the delay, appellant cites as prejudicial the fact that he cannot recall full names of individuals who were also present at the Sedalia Rock Festival and could substantiate his alibi. However Schwartz testified that he never knew the full names of these alleged individuals but only their first names and faces. Thus, even if Schwartz had more complete recall there is no showing that it would have aided his defense. Without such a showing no reversible error was caused by the period of delay. Burress v. State, supra.

Appellant asserts next that the charging information was defective on its face because it referenced the definitional chapter of the statute, IC 1971, 35-24.1-1-1(g), rather than the criminal offenses chapter, IC 1971, 35-24.1-4.1-1 Et seq. Therefore, appellant cites as reversible error the trial court's failure to direct the jury in finding defendant not guilty, it being impossible to be in violation of the definitional chapter. However, the erroneous citation in the information is not reversible error. A prosecutor's charging information is the subject of IC 1971, 35-3.1-1-2 (Burns Code Ed.) which states in pertinent part:

"(a) The indictment or information shall be in writing and allege the commission of a crime by:

(1) Stating the title of the action and the name of the court in which the indictment or information is filed;

(2) Stating the name of the crime in the words of the statute or any other words conveying the same meaning;

(3) Citing the statutory provision alleged to have been violated except that any failure to include such a citation or any error in such a citation shall not constitute grounds for reversal of a conviction where the defendant was not otherwise misled as to the nature of the charges against him;

(4) Setting forth the nature and elements of the crimes charged in plain and concise language without unnecessary repetition; . . ."

The language contained in the information charging Schwartz clearly detailed the offenses with which he was being accused and there is no showing whatsoever that defendant was misled in the preparation of his defense. Therefore, appellant's argument is without merit.

The next error raised by appellant is that the trial court failed to hold a hearing on a motion in limine outside the presence of the jury to suppress State's Exhibit No. 1, the marijuana purchased by Cinko. In this section of appellant's brief he argues that this exhibit was the fruit of an illegal "seizure." He maintains that his Fourth, Fifth, and Sixth Amendment rights were violated by the "seizure" because the officers did not have a warrant; they did not knock and announce their purpose; they did not have grounds for entry; and they did not advise him of his rights. However, the arguments as to this issue have no bearing on appellant's factual situation. The exhibit which appellant sought to challenge was not the product of an illegal seizure, rather to the contrary, the evidence at trial shows that the material was purchased from a voluntary seller. There was neither an unlawful seizure nor an unlawful entry, for Officers Cinko and Pinnell were invited into the appellant's home freely.

Although appellant also discusses his attempt to raise the defense of entrapment at this point in his brief, he mistakenly relies on the case of Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641, which was expressly overruled in Hardin v. State (1976), Ind., 358 N.E.2d 134 and applied retroactively in Davila v. State (1977), Ind.App., 360 N.E.2d 283. The State no longer has the burden of proving probable cause to suspect that defendant had previously engaged in illegal conduct. Appellant's argument is thus rendered meritless.

Appellant claims that the trial court ruled improperly on his request to produce newly discovered evidence, maintaining that such evidence entitles him to a new trial under Indiana Rules of Procedure, Trial Rule 59(A)(6), which permits a new trial for newly discovered material evidence which could not, with reasonable diligence, have been discovered and produced at trial. The defendant must establish that such evidence is material and relevant, not merely cumulative, not merely impeaching, that it is not privileged or incompetent, that due diligence was used to discover it in time for trial, that it is worthy of credit and that it raises a strong presumption that it will probably produce a different result upon retrial. Jones v. State (1974), 262 Ind. 159, 312 N.E.2d 856; Sanders v. State (1977), Ind.App., 370 N.E.2d 966; Tessely v. State (1978), Ind., 370 N.E.2d 907. The granting of a new trial on these grounds is primarily within the discretion of the trial court. Upon appeal the standard of review for an abuse of discretion in denying the motion is whether the trial court could not reasonably have concluded that a different result was not probable. Linkenhelt v. State (1944), 223 Ind. 44, 58 N.E.2d 111; Sanders v. State, supra.

The evidence in question is four color photos which bear the date August 19, 1974, and were not discovered until January 18, 1976, subsequent to trial. Schwartz alleges that these photos were taken at the Sedalia Rock Festival and would substantiate his alibi. Yet appellant has made no showing that the evidence had been or could be authenticated, that it is evidence worthy of credit, or that it is likely that the evidence would produce a different result upon retrial. At best the photos would be merely evidence which might tend to support the testimony of defense witness, Bruce Heinhuis, that Schwartz was present at the rock festival. This would be in the nature of cumulative evidence, and such evidence does not necessitate a new trial. Hogan v. State (1977), Ind.App., 367 N.E.2d 1100. It is not unreasonable to conclude that the result of this case would not be altered by admission of the photos. Absent evidence of a more material nature and a showing of the above prerequisites, the trial court did not commit error nor abuse its discretion.

Schwartz next asserts that he was denied due process of the law because of the State's destruction of LSD during testing. Officer Cinko testified that he purchased one "hit" or tablet with the street name of windowpane acid from defendant. He placed this purchase in a marked evidence bag that same evening and deposited it in his safe. The evidence remained there until August 14, 1974, when it was given to James Forbes, a chemist with the State Police laboratory. Forbes testified that he performed several tests on the substance: a color reagent test, a...