Willis v. State

• Decision Date: 19 September 1988
• Docket Number: No. 39A04-8712-CR-370,39A04-8712-CR-370
• Citation: 528 N.E.2d 486
• Parties: Geoffrey R. WILLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 486

528 N.E.2d 486

Geoffrey R. WILLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 39A04-8712-CR-370.

Court of Appeals of Indiana,

Fourth District.

Sept. 19, 1988.

Daniel E. Moore, Doehrman, Lewis & Moore, Jeffersonville, for appellant.

Linley E. Pearson, Atty. Gen., Wendy L. Stone, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Presiding Judge.

Defendant-Appellant Geoffrey R. Willis (Willis) appeals after jury convictions for conspiracy, IND.CODE 35-41-5-2; and dealing in schedule I, II, III controlled substances, IND.CODE 35-48-4-2(1). Each is a class B felony.

We reverse.

Willis asserts five issues. Because we reverse, we address only the issue of whether a proper chain of custody and foundation was laid for admission of State's exhibits 1, 2, and 3.

Indiana State Police undercover investigator David L. Motsinger asked Willis to sell "tuinals" to him. On April 11, 1984, Willis took Motsinger to the home of Karen O'Neill. There Motsinger purchased from Willis two capsules for $5. Willis got them from O'Neill. (R. 192-207). Motsinger wore a transmitter during the transaction. (R. 187).

Willis was charged with conspiracy to commit a felony with Karen O'Neill, R:1, exhibit B; and with knowingly delivering schedule III controlled substances, Amobarbital and Secobarbital. (R. 31).

During Motsinger's testimony, State's exhibits 1, 2, and 3 were admitted over Willis's objections as to chain of custody and his argument State's exhibit 1 was not relevant because there was no showing it held a controlled substance. (R. 253-254). The objections are not models of clarity.

The record says State's exhibit 1 is an evidence bag containing two capsules without contents. (R. 207-208). State's exhibit 2 is a photocopy of the police property record and receipt. (R. 210). State's exhibit 3 is a laboratory report showing the capsules contained Amobarbital and Secobarbital. (R. 254A).

When the State first moved its exhibits 1 and 2 into evidence the State asked the court "to take the ruling on that matter under advisement until the depositions have been placed into evidence." (R. 214). A hearing was had outside the presence of the jury. (R. 249-253). The hearing discussed objections to particular deposition testimony. Id. After the hearing State's exhibit 1, 2, and 3 were admitted.

During no part of the proceedings were any depositions published and admitted into evidence.

Willis contends the State failed to show a proper chain of custody and failed to lay an adequate foundation for its exhibits 1, 2, and 3. Willis asserts the court wrongly relied upon unpublished depositions to establish a basis for State's exhibits 1, 2, and 3. Willis asserts the relevance of State's exhibit 2 was not shown.

The State argues it was required only to present evidence strongly suggesting the whereabouts of the evidence at all times. The State opines Motsinger's testimony and State's exhibit 2 do that. The State argues Willis failed to object to the introduction of State's exhibits 2 and 3 and has waived any error about their admission. The State argues Willis did not object to lack of publication of depositions "leading one to conclude ... the safeguards of publication were met."

The State moved to publish depositions of Charles Mead and Robert Read. (R. 295). The court issued no oral or written order of publication and the depositions are not in the record.

It requires no citation to authority to note the State bears the burden of proving each element of a charged criminal offense. In this case, Willis was charged with selling a schedule III substance and with conspiracy to deal in the substance. It was necessary for the State to prove what substance was sold to Officer Motsinger.

Although Willis's arguments objecting to introduction of these exhibits was minimal and was not a model of clarity it was sufficient to preserve error. Willis argued:

My objection is that there has not been an adequate chain of custody shown, there is no testimony as to the time that Mr. Huttsell may have had possession of these substances, number one. Number two is based on irrelevancy as to Exhibit 1 and Exhibit 1 in particular, Your Honor, there is testimony that there is a chemical breakdown that this particular witness cannot identify in terms of time periods. He was asked at page 55, if there was a chemical breakdown, would that effect his results? He said, "That depends." Your Honor, in terms of relevancy again they are irrelevant, they are not a controlled substance, there's nothing in those capsules.

(R. 254). In addition, Willis's motion to correct error argued "chain of custody foundational requirements were not shown where the depositions of possessors were not introduced into evidence." (R. 8-23 at 14). His specification of error numbered 5 argued, inter alia, exhibit 1 contained nothing but empty capsules. (R. 19).

State's exhibit 3 identifies two capsules submitted for analysis. It identifies them as Amobarbital and Secobarbital. We note those substances are listed as schedule II and schedule III substances in IND.CODE 35-48-2-6(d) and IND.CODE 35-48-2-8(c). Willis correctly, but inexpertly, argues the State failed to lay a proper foundation for admission into evidence of State's exhibit 3. Willis concentrates his argument on breaks in the evidence chain of the capsules.

The State argues the depositions laid the proper foundation for admission of State's exhibit 3. As noted, those depositions are not part of the record and may not be considered by this court. Hales and Hunter Co. v. Norfolk and Western Railway Co. (1981), Ind., 428 N.E.2d 1225, 1227. Our Supreme Court has made it perfectly clear depositions must be published and made part of the record before they may be considered by this court or the trial court for any purpose. Id.; Augustine v. First Federal Savings & Loan Association (1979), 270 Ind. 238, 384 N.E.2d 1018.

The burden is upon the State to show by records or testimony the continuous whereabouts of the exhibit. Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652. The State also bears the burden of proving the substance sold is a schedule I, II or III drug. The State must prove, as an essential element of a drug related offense, the substance involved is a proscribed drug within the applicable statutory definition. White v. State (1974), 161 Ind.App. 568, 316 N.E.2d 699. Unsubstantiated hearsay evidence by one not shown to be an expert or to have had experience with drugs is not sufficient to sustain a conviction. Where drugs are not in evidence and there is no expert testimony based on chemical analysis, there must be testimony by someone sufficiently experienced with drugs to indicate it is a dangerous substance. Slettvet v. State (1972), 258 Ind. 312, 280 N.E.2d 806.

The purpose of establishing chain of custody is to show a complete chain of possession from the original receiver to the final custodian, thus connecting the evidence in question with the accused. Dudley v. State (1985)...