Thurman v. State, 2--473A100

• Decision Date: 27 November 1974
• Docket Number: No. 2--473A100,2--473A100
• Citation: 319 N.E.2d 151,162 Ind.App. 267
• Parties: Rian Lee THURMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 151

319 N.E.2d 151

162 Ind.App. 267

Rian Lee THURMAN, Appellant, v. STATE of Indiana, Appellee.

No. 2--473A100.

Court of Appeals of Indiana, Second District.

Nov. 27, 1974.

Rehearing Denied Dec. 18, 1974.

Transfer Denied Feb. 21, 1975.

David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Thurman appeals from convictions on two counts of possession of narcotics. The primary issues are (1) the propriety of an amendment to the affidavit as to the date of the offense; (2) the validity of the search which resulted in a seizure of the drugs; (3) chain of custody; and (4) whether the evidence was sufficient to sustain the judgment.

In reviewing the evidence on appeal, we will not weigh the evidence nor judge the credibility of witnesses, but will look only to the evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom. The evidence most favorable to the State here reveals the following facts:

Indianapolis Police Officers Robertson and Brenton received information from a reliable informant that narcotics were being kept and sold at an apartment at 1408 North Broadway in Indianapolis and that Thurman lived in that apartment.

On November 14, 1971, the officers arrived at 1408 North Broadway, searched their informant, and directed him to make a purchase of narcotics after providing him with $10.00. The officers stood in the hallway watching as the informant knocked on the door and, after the door was partially opened, made the purchase. Because the door was only partially opened, the officers were unable to fully see the person inside the apartment who accepted the money and delivered a packet to the informant.

The informant immediately handed the packet to the officers, who took it to their car, performed a field test and concluded that the contents were an opium derivative.

The officers attempted to obtain a search warrant from a judge but were unable to contact him, it being a Sunday afternoon.

Upon returning to the apartment a few minutes later, the officers knocked on the door. When it was answered by one later identified as Willie Weber, the officers identified themselves whereupon Weber slammed the door. ¹

The officers forced open the door and pursued Weber into a back bedroom, where he was prevented from exiting via a fire escape. Weber was placed under arrest.

The defendant Thurman was lying in the bed in the room in which Weber was arrested. In searching the immediate area, the officers found 85 packets of suspected narcotics beneath the pillow under Thurman's head.

Thurman was placed under arrest and after being advised of his rights, admitted that he rented the apartment and that the narcotics were his.

The next day, November 15, 1971, Thurman was charged in two affidavits with violations of the 1935 Narcotic Act, for possession of heroin and possession of cocaine. The original charging affidavits correctly recited the date of the offenses as November 14, 1971.

On September 5, 1972, the prosecution filed a single amended affidavit charging the same conduct in two counts. The amended affidavit contained a typographical error; it stated that the crimes had occurred on November 14, 1972.

The case was tried on November 13, 1972 in Marion Criminal Court Room 3, without the intervention of a jury. The facts as above described were established by testimony. In seeking to establish chain of custody of the narcotics, Officer Robertson testified that he had placed the drugs in an envelope, sealed and marked it, and placed it in the police property room drop box. An officer assigned to the property room testified that two keys were necessary in order to open the narcotics box: one was in the possession of the officer on duty in the property room, the other was held by the narcotics squad. Police procedure required any withdrawal of narcotics to be entered on a log by both the property officer and the narcotics officer, with another double entry being required when the drugs were returned. The log record, introduced into evidence over objection, showed that the drugs in question were signed out of the property room for one day, with the indication that they were to be tested by the police lab.

The police department's forensic chemist next testified that he had examined the drugs on the day they were signed out and determined that of the 85 packets, 21 were cocaine and 64 were heroin.

Thurman's testimony in defense was that the apartment was not his but rather that of his brother's girl friend; that he was unaware of the presence of the narcotics; and finally that the packets had been discovered under the bed rather than under the pillow.

At the close of all evidence, the defendant moved for discharge on the grounds that the affidavit stated that the offense occurred on November 14, 1972, which was in fact the day after the trial.

The motion for discharge was overruled, and the State was allowed to reopen its case in chief and to further amend the affidavit to show the correct date.

Thurman was convicted on both counts and received a sentence of from two to ten years on each count.

Thurman raises the following questions on appeal:

1. Did the trial court err in not granting Thurman's Motion for Discharge on the basis of the misdated affidavit and in permitting a corrective amendment by the State?

2. Was the warrantless search improper?

3. Did the State establish chain of custody?

4. Was the evidence sufficient to support the convictions?

I AMENDMENT OF AFFIDAVIT WAS PERMISSIBLE AT CONCLUSION OF ALL EVIDENCE TO CURE STATEMENT OF IMPOSSIBLE DATE AS DATE OF OFFENSE WHEN DEFENDANT HAD NOT MOVED TO QUASH AFFIDAVIT PRIOR TO TRIAL COMMENCEMENT

Thurman cites as support for his argument Pagotis v. State (1938), 214 Ind. 697, 17 N.E.2d 830 and Shonfield v. State (1925), 196 Ind. 579, 149 N.E. 53. These cases hold that a charge which alleges the commission of a crime on a date subsequent to the filing of the charge is vulnerable to a motion to quash. We have no quarrel with the principle thus enunciated.

A reading of the Pagotis decision, supra, might lead to the erroneous assumption that the Motion to Quash in that case was not filed until the prosecution moved to amend the indictment at the conclusion of all the evidence. In this regard, the following language from Pagotis is misleading:

'At the conclusion of the evidence and before the jury was instructed, the prosecuting attorney asked leave of court to amend the second count by changing the date of the commission of the alleged offense from 1936 to 1934. Leave was granted over objection and the amendment was made accordingly. The appellant saved the question by motion to quash, made prior to the amendment; a motion for a new trial; and a motion in arrest of judgment.'

214 Ind. at 698, 17 N.E.2d at 830.

An examination of the transcript of record in Pagotis, however, discloses that in fact the Motion to Quash was filed timely, i.e., prior to commencement of trial. The case before us is quite different. No motion to quash the allegedly faulty affidavit was made. Thurman allowed the trial to proceed until both sides had rested. He voiced his objection only at the penultimate moment. The record reveals no motion to quash or other challenge to the patent defect, other than his Motion for Discharge made at the conclusion of the evidence.

In Brown v. State (1970), 254 Ind. 504, 260 N.E.2d 876, 877, the defendant alleged that the indictment failed to charge a public offense. Thurman asserts that an allegation of an act taking place on a future date likewise fails to charge a public offense. The Supreme Court in Brown stated:

'The issue is not properly before us since no motion to quash the indictment was made. * * * It is well settled in this State that an attack on the indictment must be made before trial. There is a logical, rationale reason for this. If the indictment is defective there will be an opportunity to amend before trial, and expense and time-consuming efforts in a trial will thus not be lost. Another sound reason for such a rule is that a party should be required to promptly raise error in the trial court at the time it occurs rather than remain silent, hoping for an acquittal, and if that does not occur, then raise the question of error for the first time. These reasons have previously been enunciated by this Court and should not require further elucidation. Alderson v. State (1929), 201 Ind. 359, 168 N.E. 481; Turner v. State (1968), 249 Ind. 533, 233 N.E.2d 473; Knapp v. State (1932), 203 Ind. 610, 181 N.E. 517. The question as to the sufficiency of the indictment is not before us on this appeal.'

The rule thus stated is applicable, as well, to affidavits. Noel v. State (1973), Ind.App., 300 N.E.2d 132; McGowan v. State (1973), Ind.App., 296 N.E.2d 667.

It is our further view that here the misstatement in the affidavit as to the date of the offenses in question was not fatal since such date is not of the essence of the offenses. Dixon v. State (1945), 223 Ind. 521, 62 N.E.2d 629; Boos v. State (1914), 181 Ind. 562, 105 N.E. 117; Platt v. State (1972), Ind.App., 288 N.E.2d 591. The affidavit was therefore subject to amendment as permitted by the court below. Neither can it be seriously argued that such misstatement misled Thurman in preparation of his defense or in any other way prejudiced him. See Aikens v. State (1972), Ind.App., 289 N.E.2d 152.

Thurman could not have been misled by the impossible date set forth in the affidavit as first amended. The initial affidavit under which Thurman was charged stated the date correctly; the defense witnesses testified to the events occurring on a particular past date and showed no inclination to discuss events which would occur on November 14, 1972, the day after the trial. There was no...