Scisney v. State
| Decision Date | 30 December 1997 |
| Docket Number | No. 82A05-9608-CR-348,82A05-9608-CR-348 |
| Citation | 690 N.E.2d 342 |
| Parties | Marlon L. SCISNEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Marlon L. Scisney appeals his convictions for possession of cocaine with intent to deliver ("count I"), a class A felony, and possession of marijuana ("count II"), a class A misdemeanor. He raises three issues for our review which we restate as:
(1) whether the expert testimony of Detective Mike Lauderdale invaded the province of the jury;
(2) whether the trial court's jury instruction on constructive possession was misleading and confusing; and
(3) whether Scisney received ineffective assistance of counsel.
We affirm.
The facts most favorable to the judgment follow. On June 1, 1993, Officers Dan Winters and Karen Montgomery observed a vehicle that matched the description of a getaway car used in an armed robbery earlier that morning. Officers Winters and Montgomery stopped and approached the vehicle. Officer Winters asked the driver for his driver's license and vehicle registration. The license identified the driver as Scisney. As Officer Winters spoke with Scisney, Officer Montgomery informed Officer Winters that there was a bag of beer in the front seat. Scisney's driver's license also indicated that he was under the age of twenty-one. Once the officers observed Scisney "in possession of alcohol, transporting alcohol and being under the age of twenty-one," they placed him under arrest. Record, p. 107-108.
The officers asked Scisney to exit his vehicle and enter their squad car. Officer Montgomery then contacted radio dispatch to check on the status of Scisney's driver's license and vehicle registration. Radio dispatch informed the officers that Scisney's license was suspended and the vehicle was not registered under Scisney's name. Scisney was then also placed under arrest for driving while his license was suspended.
Pursuant to standard operating procedure, the officers conducted an inventory search and had the vehicle towed. During the search, Officer Winters observed a plastic bag in plain view. Upon further investigation, the plastic bag contained a white powdery substance. Officer Montgomery conducted a cocaine field test on a portion of the substance which tested positive. The officers also found a package of rolling paper in the car and on Scisney's person. Finally, Scisney produced a marijuana cigarette and pager at the time he was booked.
The State charged Scisney with possession of cocaine with intent to deliver, a class A felony, and possession of marijuana, a class A misdemeanor. Although Scisney stipulated that the white powdery substance was in fact 23.4612 grams of cocaine and that the substance in the rolled cigarette was marijuana, he denied knowing that the cocaine was in the vehicle. The jury found Scisney guilty as charged. The trial court sentenced him to twenty years for count I and sixty days suspended for count II. Scisney now appeals his conviction.
The first issue for our review is whether the opinion testimony of Detective Lauderdale invaded the province of the jury. Specifically, Scisney argues that Lauderdale should not have been "permitted to testify that the facts in [his] case suggested that [he] was a dealer rather than a user." Appellant's brief, p. 7. Scisney contends that the testimony violated Ind. Evid. Rule 704(b) which provides that "[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Evid.R. 704(b).
Prior to the adoption of the Indiana Rules of Evidence in 1994, our supreme court held that a police officer could testify that a particular quantity of drugs was possessed for delivery rather than personal use. Powers v. State, 440 N.E.2d 1096, 1106 (Ind.1982), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 808 (1983). However, the supreme court also held that:
Byrd v. State, 593 N.E.2d 1183, 1185 (Ind.1992) (citations omitted). Similarly, the decision on whether to allow hypothetical questions falls within the sound discretion of the trial court and we will reverse only where the trial court has abused its discretion. Klagiss v. State, 585 N.E.2d 674, 679 (Ind.Ct.App.1992), trans. denied, cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33. Abuse of discretion has been found where an expert is placed on the witness stand, presented with a hypothetical scenario nearly identical to the case at bar, and allowed to testify as to the intent, guilt, or innocence of the 'hypothetical' individual. Ross v. State, 516 N.E.2d 61, 63 (Ind.1987).
In Ross, the State presented an expert witness to testify about rapes. Although the trial court initially limited the scope of her testimony to explaining why a woman would wait two years before reporting a rape, the trial court later allowed the presentation of the State's entire case as a hypothetical question and allowed the expert witness to testify that the 'hypothetical' defendant was guilty of a "power rape." Id. at 63. The supreme court held that this was impermissible and concluded that:
Id. The Indiana Rules of Evidence are consistent with this case law. See Weaver v State, 643 N.E.2d 342, 345 (Ind.1994), reh'g denied.
Here, the State presented the specific facts of this case to Detective Lauderdale, a narcotics expert, and asked whether the facts, as presented, had any significance based upon his training and experience. Detective Lauderdale concluded that the individual would be a "suspect dealer." The record reads in relevant part:
"Q [State's counsel] Where we were at was the defendant was stopped in the area of Garvin and Madison Streets here in Evansville. Are you familiar with that area?
A Yes.
Q And it was 2:30 in the morning.
A Yes, Sir.
Q The defendant had the Cocaine in State Exhibit No. 6 weighing 23.4 grams either on his person, in vehicle somewhere. He had a Marijuana joint in his pocket. Understand?
A Yes, Sir.
* * * * * *
Q The defendant had a pager by his side.
A Yes, Sir.
Q Do the combination of these facts have any significance to you based on your training and experience?
* * * * * *
[State's counsel]: Your answer requires a yes or a no.
A Yes.
Q All right. What significance do you place upon these facts that I've related to you?
* * * * * *
A Based on the elements that you advised me of that would lead me to believe that person to be a suspect dealer.
Q A dealer as opposed to user?
A Yes, sir."
Record, pp. 308-309, 317. Scisney claims that such a conclusion invades the province of the jury by offering an opinion as to Scisney's intent or state of mind. Furthermore, Scisney claims that Lauderdale's testimony improperly assumed that Scisney knew the cocaine was present in the vehicle.
Based on our review of relevant law, we conclude that a police officer or law enforcement official who is offered and qualified as an expert in the area of drugs, drug trade, drug trafficking, etc., may offer testimony as to whether particular facts tend to be more or less consistent with dealing in drugs. However, the expert may not make conclusions as to whether the defendant is a dealer or whether the defendant had the intent to deal or deliver. Similarly, the expert may not be presented with a hypothetical set of facts which reflect the facts of the case and be asked to conclude whether a hypothetical individual is more likely a dealer or user. In essence, the expert may comment on the facts of the case, but must refrain from making any conclusions as to the defendant's intent, guilt, or innocence. See Evid.R. 704(b).
Here, the State presented Detective Lauderdale with the facts of this case from which he concluded that an individual in such circumstances would be a "suspect dealer." Record, p. 317. As the State had referred to "the defendant" throughout its recitation of the facts to Detective Lauderdale, there is no doubt the jury could have assumed that he was referring to Scisney when he concluded "that person to be a suspect dealer." 1 Record, p. 317. Thereafter, the State isolated each of the relevant facts and solicited testimony concluding that each fact was indicative of a dealer not a user, thus reinforcing the conclusion that Scisney was a dealer. 2 Consequently, Detective Lauderdale offered conclusions as to Scisney's intent to deliver. This is impermissible, Ross, 516 N.E.2d at 63, and the testimony should have been excluded.
However, this does not end our analysis. We do not reverse because of the improper admission of evidence where it constitutes harmless error. The improper admission of evidence is harmless error when the conviction is...
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