Serano v. State

• Citation: 555 N.E.2d 487
• Decision Date: 14 June 1990
• Docket Number: No. 82A01-8910-CR-420,82A01-8910-CR-420
• Parties: Carmelo SERANO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 487

555 N.E.2d 487

Carmelo SERANO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-8910-CR-420.

Court of Appeals of Indiana First District.

June 14, 1990.

Terry A. White, Evansville, for appellant-defendant.

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

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Carmelo Serano (Serano) appeals his conviction of Dealing in Cocaine in Excess of Three (3) Grams, ¹ a class A felony, and Conspiracy to Deal in Cocaine in Excess of Three (3) Grams, ² a class A felony, and the sentence he received. We affirm.

FACTS

The facts most favorable to the trial court's verdict indicate that in early 1989, Serano was living in Evansville, Indiana at the home of Darrell Watkins (Watkins). The men had met while both were inmates at the Vanderburgh County Jail. Serano traveled to Florida and returned to Watkins' home with a quantity of cocaine. Watkins telephoned Karen Mitchell (Mitchell) and asked her whether she would like to purchase some of the cocaine. Mitchell notified the Evansville Police of Watkins' call, and agreed to act as an informant. Under police surveillance, Mitchell made two controlled purchases of cocaine from Serano. After the second sale had been completed, Watkins was arrested.

Watkins cooperated with the police, and told them that Serano had supplied him the cocaine and that he had given Serano some of the money from Mitchell's first buy. Watkins then gave the police permission to search his home. When the police arrived at Watkins' home, Serano was found inside one of the bedrooms. Officer James Allison asked Serano for some identification, and Serano claimed that because his wallet had been lost or stolen, he could not produce any identification. He gave Officer Allison a false name. Serano was placed under arrest, advised of his Miranda ³ rights, and taken to the police station.

Once at the station, Serano was again advised of his rights and asked his identity. Serano continued to give false names and indicated that he had previously been in the Vanderburgh County Jail. Serano eventually gave his real name, and was "booked".

The police officers who searched Watkins' house found Serano's wallet under a bed. Inside the billfold was a large amount of money. The serial numbers of some of the money matched the numbers on the money that had been photocopied and given to Mitchell for her purchases of cocaine. After the "buy money" was recovered, it was placed back in a fund to be used in future drug cases.

Serano was charged by information with one (1) count of conspiracy to deal cocaine and two (2) counts of dealing in cocaine. A jury trial was held on May 25 and 26, 1989. The jury returned a verdict of guilty on one count of dealing in cocaine and of one count of conspiracy to deal in cocaine. ⁴ Serano was sentenced to fifty (50) years imprisonment on each count, such sentences to be served concurrently.

Serano now appeals his conviction and sentence. Additional facts will be added as necessary to our discussion.

ISSUES ⁵

We have restated Serano's issues on appeal as follows:

1. Did the trial court err in denying Serano's motion to suppress photocopies of the police buy money because photocopying money is a violation of federal law?

2. Did the trial court err in denying Serano's motion for mistrial and motion to dismiss when the police did not preserve the original buy money?

3. Did the trial court err in allowing the admission of evidence regarding the additional cocaine found at Watkins' house as a result of Serano's disclosure to the police?

4. Did the trial court err in denying Serano's motion to suppress evidence regarding the statements Serano made prior to his being advised of his Miranda rights about his identity?

5. Did the trial court err in admitting evidence of Serano's statements regarding his identity given during the booking process?

6. Did the trial court err in admitting evidence regarding Serano's prior theft charge?

7. Did the trial court err in permitting the jury to look at transcripts of the tape recorded drug buys while they listened to the tape recordings?

8. Was the sentence imposed by the trial court based on improper aggravating circumstances?

DISCUSSION AND DECISION

Issue One

The Evansville Police Department photocopied the money given to Mitchell for the controlled purchases of cocaine from Serano. Serano contends that the trial court erred when it denied his motion to suppress the photocopies of the buy money and the serial numbers of the bills depicted thereon. Specifically, Serano claims that Federal law prohibits the photocopying of money, and Serano's due process rights were violated when the photocopies were admitted into evidence.

We disagree. Photocopying money is proscribed by Federal law. 18 U.S.C. Sec. 474 (1976). However, "[t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant." Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113, 119 (1976) (emphasis in original).

Serano has failed to assert any personal right that was violated by the arguably illegal police conduct. On the contrary, it would appear that the aggrieved party, if any, is the United States Government. Serano's argument must therefore fail. We find no error in the trial court's denial of Serano's motion to suppress.

Issue Two

Serano claims that when the police failed to preserve the buy money and instead returned it to a fund to be used in future cases, this was tantamount to the police destroying evidence. Serano argues that his due process rights were thus violated and the trial court erred when it denied his motion for mistrial and his motion to dismiss. The decision to grant or deny a mistrial lies within the sound discretion of the trial court and will be reversed only for an abuse of that discretion. Didio v. State (1984), Ind., 471 N.E.2d 1117, 1121. In addition, the denial of a motion to dismiss is reversible only if the evidence is without conflict and leads only to the conclusion that the defendant was entitled to a dismissal. Richardson v. State (1983), Ind.App., 456 N.E.2d 1063, 1066.

Serano asserts, and the State concedes, that the negligent destruction of material evidence may constitute grounds for reversal. Lee v. State (1989), Ind., 545 N.E.2d 1085, 1089; Wilson v. State (1982), Ind., 432 N.E.2d 30, 32. However, "[t]he defendant must establish materiality as a condition precedent to claiming a denial of due process where evidence is negligently lost or withheld by the government, except where the materiality is self-evident or a showing of materiality is prevented by the destruction of the evidence." Myers v. State (1987), Ind., 510 N.E.2d 1360, 1364. Although Serano need not prove conclusively that the "destroyed" evidence was exculpatory, we cannot assume that the evidence contained exculpatory material. Thus, the record must contain some indication that the destroyed evidence was exculpatory. Johnson v. State (1987), Ind., 507 N.E.2d 980, 983, cert. denied, 484 U.S. 946, 108 S.Ct. 335, 98 L.Ed.2d 362; Wilson v. State, 432 N.E.2d at 32.

In the present case, there is no indication of how the buy money would have been exculpatory. In fact, the buy money more likely would have been inculpatory. Serano only speculates that the credibility of the police may have been impeached if he had been afforded the opportunity to inspect the actual money. Furthermore, the record indicates that it was standard police procedure to place buy money back into the general fund for use in future cases. There is no showing that the police negligently or intentionally put the money back into circulation in order to deny Serano access to it or to suppress material evidence. See Johnson, 507 N.E.2d at 983. We find no reversible error on this issue. ⁶

Issue Three

Serano next alleges the trial court erred when it denied his motion to suppress evidence of additional cocaine found at Watkins' house. At the hearing on Serano's motion, the interrogating officer, Sergeant Spradlin, testified that after advising Serano of his rights, he told Serano that he would not be charged with any crime regarding the additional cocaine if Serano would provide the police with its location. On appeal, Serano claims that Officer Spradlin promised him that no information regarding the additional cocaine would be used against him. Serano also asserts that the police lied to him because when the promise was made to him, Serano was only charged with Conspiracy to Deliver Cocaine, yet he was subsequently charged with two other counts of Dealing in Cocaine.

The admissibility of a statement is determined by whether, based on the totality of the circumstances, it was made voluntarily. Townsend v. State (1989), Ind., 533 N.E.2d 1215, 1222, cert. denied, --- U.S. ----, 110 S.Ct. 1327, 108 L.Ed.2d 502; Gibson v. State (1987), Ind., 515 N.E.2d 492, 494. In reviewing the admissibility of an incriminating statement, we will not reweigh the evidence or reassess witness credibility. Townsend, 533 N.E.2d at 1223. We will examine only the evidence most favorable to the trial court's ruling, along with the reasonable inferences drawn therefrom. Gibson, 515 N.E.2d at 494. If from that viewpoint there is substantial evidence to support the trial court's ruling it will not be disturbed. Id.

It appears that the trial court rejected Serano's claim as to what promises were made to him, and believed the testimony of Officer Spradlin that Serano was promised that he would not be charged with any crime regarding the additional cocaine. The record reveals that this promise was kept. ⁷ We find no error in the trial court's refusal to grant Serano's motion to suppress. See Hailey v. State (1988), Ind., 521 N.E.2d 1318, 1320-1321; Heironimus v. State (1987),...