Thomas v. State
| Decision Date | 26 April 1976 |
| Docket Number | No. 575S135,575S135 |
| Citation | 345 N.E.2d 835,264 Ind. 410 |
| Parties | Bobby THOMAS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jerry W. Newman, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.
The Appellant, Bobby Thomas, was convicted on June 27, 1974, for violating the Controlled Substances Act, Delivery of a Narcotic Drug. Sentenced to a determinate sentence of fifteen years on August 5, 1974, the Appellant filed a Motion to Correct Errors on October 1, 1974. This motion was overruled on December 9, 1974. A Belated Motion to Correct Errors was permitted by the trial court, was filed on March 3, 1975, and was denied on March 6, 1975. The trial court subsequently ruled that the permission granted for this belated motion meant only that the motion had been timely filed and again overruled it on its merits. It is from the denial of these motions to correct errors that the Appellant presents this appeal. It has been kept viable by an extension of time to file the record granted by this court on May 29, 1975.
The evidence presented at trial revealed that on the evening of January 14, 1974, one Robert Barrow, a police informant, rode about the city of Indianapolis with police attempting to make purchases of narcotics. At about 1:15 a.m. on January 15 they drove into the parking lot of a tavern at 16th Street and Roosevelt Avenue. Police carefully searched Barrow, taking all personal belongings from his person, and handed him a ten-dollar bill.
Barrow got out of the car and entered the tavern. He approached the Appellant and asked, 'Who is in order?', slang for 'Who has drugs for sale?' The Appellant responded that he was in order, but that they would have to go across the street to his apartment to get the drugs. Knowing that the police officers would not see him if he went directly across the street, Barrow told the Appellant that he had to first move his car from the driveway.
Barrow left the tavern, walked out to the driveway in full view of the officers, and crossed the street. As he crossed a field on the other side of the street he was joined by the Appellant. They walked to an apartment building. The Appellant went into the building and returned several minutes later. The Appellant handed Barrow a small package wrapped in foil and was in turn handed the ten-dollar bill.
Barrow returned to the police car and handed the package to the officers. He was again searched and his belongings returned to him. The contents of the package were later analyzed by a forensic chemist of the Indianapolis Police Department and found to be heroin.
The Appellant presents two contentions in this appeal. The first is that the illegal transaction here was the result of police entrapment and that, absent this transaction, the evidence was insufficient to sustain the verdict of the jury. More specifically, the Appellant contends that the evidence was insufficient to establish that the police had probable cause to believe the Appellant had been engaged in illegal activities before initiating the transaction.
The burden placed on the State to establish that such probable cause existed was thoroughly discussed by this court in Smith v. State, (1972) 258 Ind. 415, 281 N.E.2d 803. We wrote in that decision:
'* * * The theme emerges in the cases hereinabove cited and was ultimately clearly stated by this Court in Walker v. State (1970), 255 Ind. 65, 262 N.E.2d 641, wherein we permitted the State to introduce hearsay testimony to show 'probable cause,' saying:
We, therefore, have clearly adopted or embraced a rule of law that before the State sets into operation a scheme to trap a particular suspect, there must be probable cause for the suspicions. * * *'
258 Ind. at 418, 281 N.E.2d at 805.
It should be stressed that in this case police did not initiate a transaction against any particular suspect. Rather, the police informant inquired as to who, if anyone, might be selling drugs. It was the Appellant who volunteered the information that he was doing so. It was the Appellant who said they would have to go to his apartment to conduct the transaction. In a very real sense, it was the Appellant and not the police who initiated this transaction.
It is perhaps more analytically honest, however, to say that the transaction was indeed initiated by the State. Under facts such as we have here, however, the requirement enunciated in Smith v. State that probable cause be proven must be taken in conjunction with the general principles regarding entrapment discussed in that same decision.
'(I)f the government agents merely hold out an opportunity for the commission of the crime, and the offender takes advantage of that opportunity, he cannot complain of an entrapment, because it cannot be said that the ciminal conduct was the product of the agents' creative activity.' Smith v. State, supra, at 416, 281 N.E.2d at 804. The evidence is clear in this case that the police informant merely provided an opportunity for the Appellant to carry out his natural propensity to commit the crime. The facts do not reveal a scheme which would implant in the mind of an innocent person the disposition to engage in illegal conduct. We thus can find no merit in the Appellant's contention.
II.
The Appellant's second contention is that the trial court erred in admitting into evidence State's Exhibit 2, a package of heroin, on the grounds that a proper chain of custody had not been established. In the absence of this exhibit, it is contended, the verdict is not supported by sufficient evidence.
The chain of custody of the package in question is summarized in the brief of the Appellant:
'1. The defendant delivered it to the police informant Barrows on January 15, 1974.
2. Barrows gave the package to Officer Horn, I.P.D. Narcotics, at the scene on January 15, 1974.
3. Horn put the tin-foil package in a manilla envelope. Horn wrote on the envelope '16th and Roosevelt, Bobby Thomas' and all three narcotic officers initialed the envelope. Horn deposited the envelope in the 'narcotic drop box' in the police property room the night of January 15, 1974, which said Box is an old mail box and all narcotic officers of the Indianapolis Police Force, have a key to open.
4. Narcotics Officer Sims took the envelope out of the 'Drop Box' on January 23, 1974, carried it to the crime laboratory in the same building, and gave it to Dr. Philips for analysis.
5. Dr. Philips, I.P.D., and January 23, 1974, put the envelope in a cabinet and locked it. Only he and another chemist had a key to the cabinet.
6. Dr. Philips opened the envelope and took out a tin-foil package on February 1, 1974, and analyzed its contents. The powder was sealed in the corner of a plastic bag which along with the aluminum foil packet was heat sealed. The Doctor placed a white card in the envelope, with date February 1, 1974, case number, and name stamped on it. The Doctor placed an evidence seal in envelope. All was placed back into the manilla envelope on February 1, 1974. The envelope was replaced in the locked cabinet.
7. On March 12, 1974 Narcotics Officer Sims went to the laboratory and took the envelope back from Dr. Philips and took it to the Indianapolis Police Department vault and assigned it a shelf. The vault is a large room with two locks on it. The personnel in the property room have one key and the narcotics office has the other. Sgt. Gentry is the custodian of the key.
8. Officer Sims picked up the envelope from the vault on June 26, 1974 for trial and returned it in the afternoon.
9. Officer Sims again picked up the envolope from the vault on June 27, 1974, for trial. The said envelope, being Exhibit One for the State, and its contents being Exhibit Two (2) for the State were admitted into evidence on June 27, 1974. The enclosed tin-foil is described by the Court reporter as measuring 2 by 1 .
Dr. Philips is the only witness to identify State's Exhibit Two (2) the tin-foil package and powder, analyzed to be heroin. Dr. Philips' identification was as follows:
'Q. Now, you said analyzed it on February 1, 1974. Is what is marked for identification purposes as State's Exhibit 2 in the same form that the contents were in prior to your opening it up, or when you opened it up?
A. When I opened it up the contents of State's Exhibit 1 was the foil packet with the powder wrapped inside the foil.' (page references to record omitted)
The Appellant finds the following flaws in this chronology: that the police officers failed to field examine or test the heroin; that the informant and police officers Horn and Sims failed to identify State's Exhibit 2 at trial; that there is no testimony that the envelope deposited in the 'narcotic drop box' was sealed. These points raise possibilities of tampering, but do not preclude admission of the exhibit into evidence.
Guthrie v. State, (1970) 254 Ind. 356 at 363--364, 260 N.E.2d 579 at 584.
While the State must establish a complete chain of custody, it is not required to exclude very remote possibility of tampering....
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