Sherelis v. State

• Decision Date: 23 October 1986
• Docket Number: No. 484S141,484S141
• Citation: 498 N.E.2d 973
• Parties: Robert SHERELIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 973

498 N.E.2d 973

Robert SHERELIS, Appellant, v.STATE of Indiana, Appellee.

No. 484S141.

Supreme Court of Indiana.

Oct. 23, 1986.

David W. Mernitz, John W. Van Buskirk, Stark Doninger Mernitz & Smith, Indianapolis, Stephen R. Bowers, Elkhart, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from conviction by a jury of four counts of delivery of a controlled substance in excess of 3 grams, a Class A Felony, I.C.35-48-4-1, and from conviction of one count of delivery of a controlled substance of less than 3 grams, a Class B Felony, I.C.35-48-4-1.Appellant received a 30 year sentence for each Class A Felony and a 20 year sentence for the Class B Felony.

Appellant raises eight issues on appeal: (1) whether the trial court erred in its determination that cocaine hydrochloride is a controlled substance within the meaning of I.C.35-48-4-1;(2) whether the trial court erred in admitting testimony concerning negotiations for purchase of weapons and a reference to John DeLorean; (3) whether the trial court erred in limiting appellant's examination of two witnesses; (4) whether the trial court erred in not permitting introduction of appellant's Exhibit "G"; (5) whether the trial court erred in refusing portions of appellant's tendered Preliminary InstructionNo. 7andFinal InstructionNo. 10;(6) whether the trial court denied appellant due process and a fair trial; (7) whether the trial court should be ordered to reduce the amount of bail in the event of reversal; and (8) whether the judgment was supported by the evidence.

These are the facts from the record that tend to support the determination of guilt.On August 5, 1982appellant was introduced to two undercover Elkhart City Police officers.In the early hours of August 6, 1982, appellant gave a small amount of cocaine hydrochloride to an undercover Elkhart City Police officer.This delivery resulted in Count II, delivery of a controlled substance of less than 3 grams.Later in the same day, appellant sold cocaine hydrochloride to an undercover Elkhart City Police officer.On September 15, 1982, appellant sold cocaine hydrochloride to an undercover Elkhart City Police officer.On September 24, 1982, appellant sold cocaine hydrochloride to an undercover Elkhart City Police officer.On October 29, 1982, appellant sold cocaine hydrochloride to an undercover Elkhart City Police officer.These deliveries resulted in Counts I, III, IV, and V, delivery of a controlled substance in excess of 3 grams.

I.

Appellant contends that the trial court erred in its determination that cocaine hydrochloride is a controlled substance within the meaning of I.C.35-48-4-1.Appellant was charged with five counts of violation of I.C.35-48-4-1.The pertinent statute is set forth below:

35-48-4-1.Dealing in a narcotic drug.--A person who;

(1) Knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or

(2) Possesses, with intent to manufacture or deliver, cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II;

commits dealing in cocaine or a narcotic drug, a class B felony.However, the offense is a class A felony if the amount of the drug involved weighs three grams or more, or if the person delivered the drug to a person under eighteen years of age at least three years his junior.

Initially appellant focuses on I.C.35-48-4-1(1), "knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in Schedule I or II."Based on this language, he asserts that in order to violate I.C.35-48-4-1, the substance must be classified in schedule I or II.While cocaine is listed in Schedule II(I.C.35-48-2-6), the listing appears as "cocaine(9041)".Appellant alleges that the listing of cocaine is modified by the four digit DEA number in brackets which follows the listing.While testimony was at times contradictory, it was established at trial that cocaine base has a DEA number of 9041 while cocaine hydrochloride, a salt of cocaine and the substance in question here, has a number of 9042.Appellant submits that the DEA number in brackets limits the referent of the word "cocaine" in Schedule II to cocaine base and that since cocaine hydrochloride is not listed in Schedule II, it is not proscribed by I.C.35-48-4-1.Based on this interpretation of the statute, appellant filed a Motion to Dismiss prior to trial and objected to introduction of the cocaine hydrochloride into evidence.

It is well settled that when construing a statute, a court"may not view it in isolation, but must ascertain its effect and application by viewing it in context with the entire act."Smith v. State Ex. Rel. Medical Licensing Bd., (1984), Ind.App., 459 N.E.2d 401, 404.If I.C.35-48-4-1andI.C.35-48-2-6 constituted the entire statute, appellant's argument would be compelling.However, other portions of Article 48 are relevant.The pertinent portions of the Article are as follows:

35-48-1-1.Definitions:--As used in this article: ...

(2) ............................................ "Cocaine" includes coca leaves and any salt, compound, or derivative of coca leaves, and any salt, compound, isomer, derivative, or preparation which is chemically equivalent or identical to any of these substances; however, decocainized coca leaves or extraction of coca leaves that do not contain cocaine or ecgonine are not included.

35-48-2-2. Nomenclature.--The controlled substances listed in the schedules in sections 4,6,8,10and12[35-48-2-4, 35-48-2-6, 35-48-2-8, 35-48-2-10, 35-48-2-12] of this chapter are included by whatever official common, usual, chemical, or trade name designated.The number placed in brackets after each substance is its federal drug enforcement administration controlled substances code number which is to be used for identification purposes on certain certificates of registration.

The definitional section clearly includes cocaine hydrochloride (cocaine salt) and the language "[a]s used in this article" affects the meaning of "cocaine" throughout the article.Further, I.C.35-48-2-2 limits the purpose of the DEA number.Reading the statute as a whole, any time the word "cocaine" appears in Article 48, one would read the word "cocaine" to mean:

"Cocaine" includes coca leaves and any salt, compound, or derivative of coca leaves, and any salt, compound, isomer, derivative, or preparation which is chemically equivalent or identical to any of these substances; however, decocainized coca leaves or extraction of coca leaves that do not contain cocaine or ecgonine are not included.

Therefore, the listing of cocaine in Schedule II clearly includes cocaine hydrochloride.Further, the purpose of the DEA number in brackets is specifically mentioned in I.C.35-48-2-2 as being for identification purposes on certain certificates of registration.The trial court did not err with its determination that cocaine hydrochloride is a controlled substance within the meaning of I.C.35-48-4-1.

II.

Appellant contends that the trial court erred by admitting into evidence testimony concerning negotiations for the purchase of weapons and a reference to John DeLorean.Appellant argues that the testimony concerning weapons was evidence of past crimes or criminal actions not related to the charged crimes and wholly inadmissible.However, this particular testimony falls within the res gestae exception.In McCormick v. State, (1982), Ind., 437 N.E.2d 993, 995-96, this court stated:

"Our decisions allow the admission of evidence of unrelated criminal activity where the witness' testimony is necessary to complete the story of the criminal transaction, e.g., Clemons v. State, (1981) Ind., 424 N.E.2d 113, 117(cases cited therein);Lee v. State(1977), 267 Ind. 315, 320, 370 N.E.2d 327, 329, or where the evidence may reveal the accused's state of mind.E.g., Choctaw v. State (1979), Ind. , 387 N.E.2d. 1305, 1307, Dickinson v. State(1944), 222 Ind., 551, 556, 55 N.E.2d. 325, 327."

Also, in Clemons v. State, (1981) Ind., 424 N.E.2d 113, 117, this court acknowledged that "this state has long recognized that happenings near in time and place which complete the story of the crime are admissible under the theory of res gestae."

While technically discussion of purchase of weapons did not take place at the exact moment of delivery of the controlled substance, the weapons discussions were intertwined with the drug negotiations and a part of a continuing pattern.Excising all weapons discussions would have resulted in an incomplete story.

Further, the state's first witness, Cindy Oyer, testified solely to appellant's predisposition.Her testimony revealed that appellant had invited peoplehe met in a restaurant to his home on previous occasions and that drug consumption was involved.Appellant did not object to her testimony and even indicated in a response to an objection from the state that predisposition was at issue.

Appellant relied in part on a defense of entrapment, bringing predisposition into issue.Testimony showed that appellant planned to use a large amount of cocaine to purportedly pay for the weapons and access to large quantities of cocaine is proper evidence on the issue of predisposition.The admission of testimony relating to negotiations for purchase of weapons was not error.

Regarding the mention of John DeLorean, a review of the record reveals nothing to link appellant with DeLorean.The reference to DeLorean was minor and read in context does not associate him with the appellant.

III.

Appellant further contends that the trial court erred in limiting appellant's examination of two witnesses.With respect to the witness Jean Bradley, the trial court sustained an objection to a question presented by appellant.The question by appellant"Do you know why those matters are...