Smiley v. State
| Decision Date | 07 October 1991 |
| Docket Number | No. 20A03-9105-CR-126,20A03-9105-CR-126 |
| Citation | 579 N.E.2d 136 |
| Parties | John E. SMILEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
R. Brent Zook, Goshen, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant-defendant John E. Smiley appeals his conviction for delivery of cocaine, a Class B felony. Smiley was sentenced to a determinative term of ten-years imprisonment, four years of which were suspended with probation.
The evidence relevant to the appeal discloses that in January 1990 a police informant telephoned a Goshen police officer regarding Smiley. The informant told the officer that Smiley had offered to sell the informant one-quarter gram of cocaine. The officer asked the informant to arrange a meeting with Smiley.
The informant was searched at the police station. He was also equipped with a monitoring device. The officer gave the informant $40.00 to purchase the cocaine.
The informant then met Smiley and Smiley's female companion at the pre-arranged site. From his vehicle, the officer observed the meeting. Smiley gave the informant a plastic bag containing a substance which was later determined to be cocaine. The informant gave Smiley $40.00. The officer was able to take a picture of the meeting. Also, the officer heard a discussion about acquiring more cocaine. Smiley stated that the price for one-eighth ounce was $225.00. The three then parted.
Smiley was arrested and charged with delivery of cocaine. Smiley's jury trial was held on November 20, 1990. During the State's case-in-chief, the testimony of four witnesses was presented. The defense called one witness. After receiving instructions, the jury retired to deliberate at 3:10 P.M. Sometime before 4:45 P.M. the jury foreman sent a request "to review the transcript of the conversation between [Smiley] and [the informant] at the time of the delivery [transaction]." At 4:45 P.M., the jury was returned to the courtroom. All of the testimony as to the conversation during the delivery was read to the jury by the court reporter. At 5:00 P.M., the jury returned a guilty verdict. This appeal ensued.
On appeal Smiley raises one issue for review: whether the trial court erred in allowing portions of the direct examination of the officer and the informant to be read to the jury without ascertaining that a disagreement about the evidence existed.
The record does not disclose and Smiley does not argue that he objected to the trial judge's decision to allow the testimony to be read to the jury or the method chosen, that is allowing the court reporter to read excerpts of the testimony regarding the transaction. The failure to object to the request at trial forecloses review. Cf. Maxie v. State (1985), Ind., 481 N.E.2d 1307, 1310 ().
However even if review was not foreclosed, it does not follow that the trial court erred. IND.CODE Sec. 34-1-21-6 (1988 Ed.) provides:
"After the [jurors] have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys."
Smiley contends on appeal that the record does not disclose the jurors' disagreement as to any part of the testimony. Accordingly, Smiley complains that the trial court failed to follow the mandate of the statute.
It has been determined that the statute mandates the trial judge's compliance with a jury's request to "have read to them any properly admitted testimony or documentary evidence."
Ortiz; Williams v. State (1976), 265 Ind. 549, 356 N.E.2d 1188, 1197;
see also Smith v. State (1990), Ind.App., 549 N.E.2d...
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...v. State, 608 So.2d 533, 535 (Fla.Dist.Ct.App.1992); Nelson v. State, 208 Ga.App. 671, 431 S.E.2d 450, 452 (1993); Smiley v. State, 579 N.E.2d 136, 137-38 (Ind.Ct.App.1991); State v. Spaulding, 296 N.W.2d 870, 877-78 (Minn.1980); State v. Lee, 335 N.C. 244, 439 S.E.2d 547, 571 (1994). The u......