Spright v. State

• Decision Date: 29 July 1970
• Docket Number: No. 968S142,968S142
• Citation: 260 N.E.2d 770,254 Ind. 420
• Parties: Vaughn SPRIGHT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 770

260 N.E.2d 770

254 Ind. 420

Vaughn SPRIGHT, Appellant, v. STATE of Indiana, Appellee.

No. 968S142.

Supreme Court of Indiana.

July 29, 1970.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Curtis C. Plopper, Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by indictment with a violation of the 1935 Narcotic Act (as amended), said indictment reading in pertinent part as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that VAUGHN SPRIGHT on or about the 21st day of August, 1967, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously have in his possession and under his control a narcotic drug, to wit: MARIHUANA, a derivative of Cannabis, and was not authorized by any law of the United States of America or the State of Indiana to have such narcotic drug in his possession or under his control, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

On October 25, 1967, appellant waived arraignment and entered a plea of not guilty to the above mentioned charge. This cause was submitted to the court for trial on May 24, 1968. On June 4, 1968, the court found appellant guilty, ordered a pre-commitment investigation report to be filed, and set June 21, 1968, as the date for sentencing. On June 21, 1968, the court sentenced appellant to the Indiana State Reformatory for not less than two (2) nor more than ten 10) years. On June 10, 1968, prior to the date set for sentencing, appellant filed his motion for new trial which attacked the verdict as being contrary to law and not sustained by sufficient evidence. Said motion was overruled June 21, 1968. Appellant's sole Assignment of Error is: '1. That the Court erred in overruling appellant's motion for new trial.'

From the evidence adduced at trial, viewed most favorably to appellee, it appears that on the morning of August 21, 1967, Ronald Drummond, a patrolman on the Indianapolis police force, was dispatched to the 3200 block of North Capitol Avenue upon the advice that a rape was supposed to have occurred there. When he arrived at the scene, he saw appellant in the company of at least four other individuals, three of whom were sitting in the car next to which appellant was standing. The complainant was also there, and Officer Drummond began to question her in the presence of appellant.

At this time Sergeant Richard Anderson arrived on the scene and immediately went to talk to the complainant's mother who was standing across the street from where Officer Drummond was questioning the complainant. As he (Anderson) left the complainant's mother and approached the spot where Officer Drummond and appellant were standing, he saw appellant drop onto the curb what appeared to be an aluminum foil package. Anderson immediately placed appellant under arrest on a preliminary charge of rape. After he was advised of his rights, appellant was searched, and the only articles found on his person were his personal effects. Appellant was then placed in Officer Drummond's squad car, which was approximately 25 feet from where he (appellant) had previously been standing.

Anderson proceeded to examine the contents of the package which he had earlier seen appellant drop, and which he himself had picked up immediately prior to the time he placed appellant under arrest for rape, and, thereafter, placed appellant under arrest on a charge of pre-narcotics. Anderson then went back to where he found the first package and found three similar packages. He marked each package with blue ink from a ball point pen, handed them to Officer Drummond, and instructed him to turn each package in to the police property room.

On August 22, 1967, appellant, after again being fully advised of his constitutional rights, was interrogated by Officer Crawley in the presence of Lt. Jones, Lt Owen, and Sgt. Ward, all members of the Indianapolis Police Department. At this time appellant admitted having possession of the marihuana at the time of his arrest. He further stated that he had purchased it from a Mr. Wilson in the Barrington district of Indianapolis and had paid $17.50 for a 'half a can.'

At the trial of this cause, Sergeant Anderson was shown four aluminum foil packages. He pointed out his identifying marks and stated that these were the same packages that he had found at the scene of appellant's arrest. These four packages were admitted into evidence as State's Exhibits 1 through 4. David Kirkoff, a police officer of the city of Indianapolis, was qualified as an expert in the examination of dangerous drugs and narcotics, and he identified State's Exhibits 1--4 as being the same ones he examined on August 22, 1967. He then testified that each of the four packages did in fact contain a total of 4.7 grams of marihuana.

On appeal appellant raises three arguments to support his contention that his conviction below should be reversed. They are: (a) The judgment of the court is not sustained by sufficient evidence and is contrary to law for the reason that the packages containing the alleged marihuana were admitted into evidence without proper identification and without proper custodial identification; (b) an alleged confession of the defendant was permitted into evidence prior to the proof of the corpus delicti of the crime; (c) the names of four witnesses were endorsed on the indictment, said witnesses not being called by the State in support of its case, and the presumption is that they would have testified in favor of the defendant.

In support of this latter contention, appellant relies upon the language in 29 Am.Jur.2d § 180 to the effect that:

'It is a well-settled rule that if a party knows of the existence of an available witness on a material issue and such witness is within his control, and if, without satisfactory explanation, he fails to call him, the jury may draw the inference that the testimony of the witness would not have been favorable to such party. Even in criminal cases, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption or inference that the testimony, if produced, would be unfavorable.' (Our emphasis)

However, in the case at bar it would appear that the absence of the witnesses was satisfactorily explained to the court. The following colloquy between the trial court and Mr. David Millen, deputy prosecutor, substantiates this point:

'THE COURT: Why don't you call Eleecia Droughn, Jeanette Malone, Francis Butler, Sergeant R. K. Anderson?

MR. MILLEN: They did not respond to their subpoenas, Your Honor. I'd like to have them called. Eleecia Droughn. Jeanette Malone. Francis Butler. Each of whom were subpoenaed, Your Honor.'

Therefore, in cases where this precise situation is involved, we feel the rule to be applied is that there should be no adverse inference from non-production of a witness where it appears that the State has made all reasonable effort to procure his testimony. Thus, an unfavorable inference cannot be drawn against the State by reason of the absence of a witness who has been subpoenaed, but who, through no fault of the State, has failed to appear.

Appellant's argument that the trial court erred in admitting into evidence his alleged confession prior to the proof of the corpus delicti of the crime cannot now be considered by this Court. Appellant did not object to the testimony concerning the admission at the trial, did not allege said error in his motion for new trial, and now raises such argument for the first time on appeal. In Fletcher v. State, 241 Ind. 409, 172 N.E.2d 853 (1961), this Court stated:

'Further, the record reveals that no objection was made prior to the objectionable testimony, and no motion to strike was made. Therefore, no error is reserved as to the admission of the testimony. Beeler v. State, (1951), 230 Ind. 444, 104 N.E.2d 744.'

Likewise, in Woods v. State (1967), 248 Ind. 256, 226 N.E.2d 326, this Court held that:

'In order to present upon an appeal the question of the introduction of incompetent evidence at the trial, the alleged error * * * must be presented to the trial court by motion for new trial. Poehler v. State (1924), 194 Ind. 207, 142 N.E. 410.'

Therefore, since appellant failed to object during the course of the trial to the admission of the testimony relating to his alleged confession, failed to move to strike said testimony, and failed to include in his motion for new trial or the attached memorandum the allegation that the trial court erred in admitting said evidence, this specification of error cannot now be considered by this Court.

Appellant further argues that the...