Delao v. State
940 N.E.2d 849
| Ind. Ct. App. | 2011Background
- CS cooperated with law enforcement and arranged drug deals with Delao in Elkhart County in Sept–Oct 2007.
- Delao sold approximately 14 grams of cocaine per transaction on four occasions to Officer 193 for $400 each.
- Total substances across the four sales ranged from 11.92 to 14.88 grams per sale; each sale violated the Class A felony threshold.
- Four audio recordings of the transactions were admitted and published to the jury; one recording was admitted without objection, others were challenged at unrecorded sidebar.
- Delao was convicted of four counts of Class A felony dealing in cocaine and sentenced to 42 years for each count, to be served concurrently.
- On appeal, Delao challenges the admission of the audio recordings and the length of his sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of audio recordings | Delao argues the later recordings were improperly admitted. | Delao contends the off-record objections affected admissibility. | Waived as to later recordings; admissibility not error. |
| Sentence appropriateness | Sentence should reflect offenses and offender's character. | Sentence is excessive given the nature of the offenses and his history. | Forty-two years per count, concurrent, not inappropriate. |
Key Cases Cited
- Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008) (abuse of discretion standard for evidentiary rulings)
- Newman v. State, 751 N.E.2d 265 (Ind. Ct. App. 2001) (standard for affirming evidentiary admission on appeal)
- Brown v. State, 929 N.E.2d 204 (Ind. 2010) (contemporaneous objection required to preserve issue)
- House v. State, 535 N.E.2d 103 (Ind. 1989) (burden to present a record on appeal)
- Spitler v. State, 908 N.E.2d 694 (Ind. Ct. App. 2009) (rule governing review of sentencing under 7(B))
- Patterson v. State, 909 N.E.2d 1058 (Ind. Ct. App. 2009) (considerations for appellate review of sentences)
- Rutherford v. State, 866 N.E.2d 867 (Ind. Ct. App. 2007) (deference to trial court’s sentencing decisions)
- Sanchez v. State, 891 N.E.2d 174 (Ind. Ct. App. 2008) (immigration status as aggravating factor in sentencing)