Snow v. State
| Decision Date | 26 September 1990 |
| Docket Number | No. 34A02-9003-CR-150,34A02-9003-CR-150 |
| Parties | Oscar SNOW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 1 |
| Court | Indiana Appellate Court |
Caroline B. Briggs, Flora, for appellant.
Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Appellant-defendant Oscar Snow appeals his conviction of conspiracy to commit dealing in cocaine, a class B felony.
We affirm.
Arthur Biles agreed to act as an informant for the Kokomo Police Department. Biles was joined in the undercover narcotics investigation by another informant, Tyrone Cockrell. On May 19, 1988, the informants met police at a warehouse in Kokomo and were searched. The two were given cash with which to purchase drugs. Then Biles drove to the Elks Club bar, where he dropped off Cockrell, who went inside the club.
Gloria Herron, who was a runner for several drug dealers, approached the car in which Biles sat and asked him if he was looking for anything. Biles told Herron he was looking for one-sixteenth of an ounce of cocaine. Herron told Biles that she had packaged some cocaine with Snow earlier that day, and that Snow was in the bar. Biles went into the bar and approached Snow with his request, but Snow referred him to Herron. Herron agreed to ask Snow for drugs for Biles. Herron gave Snow money that Biles had given her, and Snow gave Herron a plastic bag of cocaine to deliver to Biles. To create the impression that she was getting drugs elsewhere, Herron went home. Snow and Biles began to talk and Snow asked Biles whether he and his companion were undercover police officers. Biles denied being a police officer.
After this conversation, Biles left the bar and waited for Herron in his car. She returned with the bag of cocaine which she had originally received from Snow at the bar, and which resembled those she had packaged with Snow earlier in the day. Cockrell joined Biles in his car and the two met police at the warehouse, where they were searched by police to whom they delivered the narcotics.
After a trial, the jury found Snow guilty of conspiracy to commit dealing in cocaine.
Snow presents six issues for review:
I. Whether it was error to refuse Snow's instruction number 4 regarding circumstantial evidence.
II. Whether it was error to refuse Snow's instruction number 8 regarding missing witness Tyrone Cockrell.
III. Whether an adequate chain of custody was established with regard to the cocaine introduced at trial.
IV. Whether it was error to permit State's witness Gloria Herron to testify about Snow's role in the controlled drug buy.
V. Whether there was sufficient evidence to support the verdict.
VI. Whether Snow should have been discharged because he was not tried within one year from his arrest.
Snow's tendered instruction on circumstantial evidence included the following sentence:
Circumstantial evidence alone will not justify a finding of guilty unless the circumstances are entirely consistent with the Defendant's guilt, wholly inconsistent with any reasonable theory of the Defendant's innocence, and are so convincing as to exclude a reasonable doubt of the Defendant's guilt.
Snow acknowledges that the court read final instruction number 13 which tracked language in the remainder of Snow's tendered instruction. Hence, Snow contends that the final instruction 13 was an incomplete statement of the law.
When we review a trial court's refusal to give an instruction, we consider 1) whether the tendered instruction was a correct statement of the law; 2) whether there is evidence to support giving the instruction; and 3) whether the substance of the tendered instruction was covered by other instructions given by the court. Hicks v. State (1989), Ind., 536 N.E.2d 496, 501. It is not reversible error for the trial court to refuse to give a tendered instruction when the substance of that instruction is covered adequately by another instruction given by the court. Mack v. State (1983), Ind., 457 N.E.2d 200. The court's final instruction number 10, which instructs the jury to find in favor of the defendant's innocence where the evidence allows reasonable inferences of both guilt and innocence, adequately covers the final sentence in Snow's tendered instruction. Both instructions inform the jury that before they vote to convict, they should be able to eliminate reasonable inferences of innocence.
Also, the evidence of conspiracy comprised both direct and circumstantial evidence. Herron testified that she had taken Biles' money to Snow and Snow had given her cocaine to take to Biles. This was direct evidence of an overt act in furtherance of the conspiracy, an essential element of the offense. See IND.CODE 35-41-5-2(b). Where there is both direct and circumstantial evidence of guilt, the trial court is not required to instruct the jury on circumstantial evidence. Armour v. State (1985), Ind., 479 N.E.2d 1294. There was no error in refusing to give Snow's tendered instruction.
Snow tendered the following instruction:
"It is peculiarly within the power of the State of produce [sic] Tyrone Cockrell, who could have given material testimony on an issue in this case. The State's failure to call Tyrone Cockrell may give rise to an inference that his testimony would be unfavorable to it.
You should bear in mind that the law does not impose on a Defendant in a criminal case the burden of duty or calling [sic] any witnesses or producing any evidence." R. 60.
A missing witness instruction is not generally favored in Indiana. Gossmeyer v. State (1985), Ind., 482 N.E.2d 239. An instruction calling for an adverse inference to be drawn from the failure to produce certain evidence is appropriate only where the evidence withheld is material to the trial issues and not cumulative. Id. Also, the missing witness instruction is appropriate only when a witness is available to be produced by one party but not by the other. Metcalf v. State (1983), Ind., 451 N.E.2d 321; Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042; cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662.
Snow's presentation of this issue suffers from the same type of inadequacy that were found in other cases--there is no showing on the record that Tyrone Cockrell, who was in the service and stationed overseas, was available to the State but not available to Snow. See Metcalf, supra; Gordy v. State (1974), 262 Ind. 275, 315 N.E.2d 362; Allen v. State (1980), Ind.App., 406 N.E.2d 976, affirmed, 408 N.E.2d 122. Also Snow has not demonstrated that Cockrell's testimony would not have been cumulative of the other informant, Biles' testimony. Snow has failed to present error in the refusal of the instruction.
Snow argues that the State failed to demonstrate chain of custody of State's Exhibit A, the packet Biles delivered to the police. First, Snow contends that neither Gloria Herron nor Arthur Biles were called upon to identify the State's cocaine exhibit as that which had been given to them. Second, Snow argues that the officer who received two packets of cocaine from each of the two informants failed to explain how he distinguished them later.
The purpose of requiring an adequate chain of custody is to connect the evidence with the proper individual and to negate any substantial likelihood of tampering, loss, substitution or mistake. Fendley v. Ford (1984), Ind.App., 458 N.E.2d 1167. The State need only prove the chain of custody from the time the object came into possession of the police, McAnalley v. State (1987), Ind., 514 N.E.2d 831, 835, and if an item is subject to testing, such as drugs, chain of custody need be shown only through the time of testing. Smith v. State (1983), Ind.App., 452 N.E.2d 160.
The record bears out the State's assertion that it established an adequate chain of custody for State's Exhibit A. Police searched both informants and their car prior to the controlled buy, and found no other narcotics. Biles testified Herron gave him a plastic bag secured with a twist tie, and that he gave Sgt. Salinas the bag which remained undisturbed while he had it. Sgt. Salinas testified receiving the bag from Biles, who said he had gotten it from Herron. Salinas also received a similar bag from Cockrell. Salinas testified he normally placed each baggie in its own manila envelope on which he wrote identifying information. At trial, he identified the manila envelope as well as the plastic bag he received from Biles. From this testimony, the jury could infer that Salinas followed the same procedure in Snow's case that he "normally" did. Salinas then testified he placed the baggie in another packet which he initialed, heat-sealed, and stored in his narcotics locker.
Lt. Ashenfelter described unlocking the narcotics locker and delivering the evidence to the laboratory. Once at the State Police lab, he delivered the package to a property clerk. He retrieved the item in a sealed condition and then delivered it to the Kokomo Police Department's locked evidence room.
Finally, Chemist Troy Ballard affirmed that he received the packet in a sealed condition from the evidence vault and resealed the packet after testing, when it was retrieved by Ashenfelter.
The chain of custody was not deficient because Biles did not positively identify the exhibit. He testified he received a packet from Herron and gave that packet to Salinas, who testified to receiving the exhibit from Biles. The relevancy of the exhibit was established.
Snow argues for the exclusion of that part of Gloria Herron's testimony regarding conversations with Oscar Snow prior to presentation of a prima facie case of conspiracy, citing Berridge v. State (1976), 168 Ind.App. 22, 340 N.E.2d 816. Snow has not cited the record in support of his allegation of error. He suggests that all of Herron's testimony was inadmissible under Berridge. At the point at which trial counsel...
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