Smith v. State

• Decision Date: 12 September 1974
• Docket Number: No. 2--773A151,2--773A151
• Citation: 316 N.E.2d 463,161 Ind.App. 461
• Parties: Clifton O. SMITH, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 463

316 N.E.2d 463

161 Ind.App. 461

Clifton O. SMITH, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 2--773A151.

Court of Appeals of Indiana, Second District.

Sept. 12, 1974.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Petitioner-Appellant Clifton O. Smith (Smith) appeals from the denial of his petition for post-conviction relief after jury conviction of possession of heroin claiming evidence as to his possession of heroin should have been excluded as there was no probable cause for his arrest and that the State failed to establish a complete and unbroken chain of custody of the heroin found on him at the time of his arrest.

We affirm.

FACTS

The facts and evidence most favorable to the State are:

On July 17, 1970, after receiving complaints about automobile traffic at Smith's residence at 2862 Indianapolis Avenue in Indianapolis, Indiana, from neighbors and people in the area, Police Officers James Brenton (Brenton) and Cicero Mukes (Mukes) (and one other) set up surveillance of the house.

They observed several people coming to and from the house. One of them related that Smith had sold him capsules containing heroin. A check with headquaters produced the report that an arrest warrant was on file for Smith for a violation of probation.

Brenton and Mukes then went to the Smith residence, and knocked on the front door. When Smith answered the door, he had a small brown envelope in his hand which he placed in his pocket when Brenton identified himself as a police officer. The officers entered the house and placed Smith under arrest for the probation violation. In a search conducted incident to this arrest, a brown envelope in Smith's front pocket and a clear plastic vial in his back pocket were seized.

The officers had no arrest warrant with them at the time of the arrest and did not produce one at trial.

Prior to trial, Smith moved to suppress all evidence obtained during the search of his person and the residence conducted incident to his arrest. After hearing, the trial court sustained this motion as to evidence obtained in the search of Smith's residence, but overruled his motion as to evidence obtained from his person.

At trial, Smith did not object to the admission of this evidence on the grounds that it was obtained pursuant to an illegal arrest. Smith did object to its admission on the grounds that a proper chain of custody and foundation connecting the heroin to him had not been established.

The brown envelope removed from Smith's pocket contained twenty-five capsules and the vial contained twenty-seven capsules, both of a white, powdery substance. After seizing the capsules, Mukes Before performing this test, Mukes placed his initials, the date, and the number of capsules contained on the brown envelope and the vial. After the field test, he placed the envelope and vial containing the capsules in his pocket and took them to Police Headquarters. There Sergeant Crawley, the third officer involved in the stakeout and arrest of Smith, initialed it, and Mukes put the brown envelop in a larger manila envelope and took it to the Police Property Room where it was assigned a number and placed in the property room lock box. The same was done with the clear plastic vial also seized from Smith's back pocket.

performed a Marquis Reagent Field test [161 Ind.App. 464] which indicated the white powder contained a derivative of opium.

Charles Caine, an officer assigned to the Crime Laboratory, testified that on July 17, 1970, he removed the two manila envelopes from the property room lock box and performed tests on the contents which proved the capsules contained heroin. After conducting these tests, he replaced the capsules in the brown envelope, marked them for identification, initialed the manila envelope, and returned it to the Police Department Property Room narcotics vault.

The manila envelope containing the evidence had the name Anthony Smith mistakenly printed on it at the time Mukes originally placed the evidence in the envelope before depositing it in the property room lock box.

At trial, Mukes identified the brown envelope and clear vial as being the items seized from Smith on July 17, 1970, at the time of his arrest. At the hearing on Smith's petition for post-conviction relief, Mukes testified he did not recall arresting anyone named Anthony Smith on the date in question.

Evidence presented by Smith at trial and at the subsequent hearing, tended to show that there was no arrest warrant in existence, nor was Smith on probation at the time of his arrest. The trial court offered to grant a continuance at the post-conviction hearing to allow Smith to subpoena the Police Department to produce the alleged arrest warrant, but this opportunity was refused. Smith again objected to the admissibility of the seized heroin capsules on the ground that the State had failed to establish a complete and unbroken chain of custody.

Smith was found guilty by the jury of violating the Narcotics Act, specifically the possession of heroin, and sentenced to imprisonment for not less than two nor more than ten years.

At the subsequent hearing on Smith's petition for post-conviction relief, the trial court found that the petitioner had not shown by a preponderance of the evidence that his arrest was unlawful, or that the heroin seized at the time of the arrest pursuant to a body search was erroneously placed into evidence, or that the State had not sufficiently proven a proper chain of custody of that evidence.

This appeal follows.

ISSUES

Smith presents two issues for our determination:

ISSUE ONE.

Did the trial court err by admitting the heroin capsules found on Smith's person into evidence because Smith failed to prove that probable cause did not exist for his arrest?

ISSUE TWO.

Did the State sufficiently establish a complete and unbroken chain of custody of the brown envelope and vial containing the heroin capsules seized from Smith at the time of his arrest?

As to ISSUE ONE, Smith contends that as the State failed to produce the arrest The State argues that because Smith refused the continuance offered by the trial court to ascertain the existence and validity of the arrest warrant, he has waived the question and that there was sufficient probable cause to effect a lawful arrest.

warrant at trial there was no probable cause for his arrest and evidence obtained thereby should have been suppressed.

As to ISSUE TWO, Smith contends that the State failed to prove that Mukes and Caine were the only two officers who had access to and/or handled the evidence. Furthermore, the manila envelope containing the evidence had the name of Anthony Smith printed on it.

The State argues that Mukes identified the brown envelope and vial as being the articles seized from Smith, and that the heroin capsules and vial were admitted into evidence, and not the manila envelope in which they had been placed and on which an incorrect name had been printed. The State further contends that it does not have the burden of excluding every remote possibility of tampering.

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that Smith has waived the issue of the admissibility of the heroin capsules found on his person by failing to object to the admission of that evidence on grounds of an illegal arrest.

The record reveals Smith's fatal omission:

'Mr. Helbert (Deputy Prosecuting Attorney): At this time, Your Honor, the State will offer what has previously been marked for purposes of identification State's Exhibit One and Two into evidence.' (the brown envelope and plastic vial each containing the heroin capsules)

'Mr. Neel (Counsel for Defendant): At this time, Your Honor, I am going to object to the introduction of the evidence. It has not been established that these particular items have in any way been taken from this defendant.' (emphasis supplied)

We note that only in the Motion To Correct Errors filed after the post-conviction relief hearing, does Smith argue that the heroin capsules were illegally seized on the grounds that the search which produced this evidence was incident to an unlawful arrest.

The objection, however, is cast solely in terms of the 'particular items' (heroin capsules) not having been taken from Smith, not in terms of fruit of an illegal arrest.

Failure to object on the grounds argued on appeal constitutes a waiver and preserves no issue for this Court to determine. Recent decisions of the Indiana Supreme Court reinforce this well-established principle. Harrison v. State (1972), Ind., 281 N.E.2d 98, 99.

Justice Hunter reviewed the law on this subject in Guthrie v. State (1970), 254 Ind. 356, 260 N.E.2d 579, 582:

'It is clear from the above quoted objections entered by defense counsel that he was challenging the validity of the search on the ground that Mrs. Guthrie had no right to be in the trailer at the time she made her observations. On appeal, however, as above pointed out appellant seeks to raise an entirely new question as to the validity of the search, to wit: was Mrs. Guthrie acting at the instance and direction of the prosecuting attorney?

'(1) The general rule was stated by Wigmore in his treatise on evidence to be as follows:

'Specific Objection. A specific objection overruled will be effective to the extent of grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not: * * *.' 1 Wigmore on Evidence § 18 at 339--40 (1940).

'The courts in this state have applied the rule on numerous occasions. See e.g. Automobile Underwriters v. Camp (1940), 217 Ind. 328, 27 N.E.2d 370; Michigan City v. Werner (1916), ...