Duncan v. State

plan. that standing in furtherance of his Law- Baisden then to some would kill ey people two of these to a vacant Sandy took Lawson. We think there substan- son lot near Bush’s home and wooded showed probative tial value which evidence get how to He them to the house. also could jury have found Lawson gave key a to Bush’s residence. beyond reasonable doubt. diagram also showed them a Lawson error, Finding no reversible we affirm house, suggested that whoever Bush’s of the court. judgment Bush quantities

killed should scatter of co- killing about the house to caine make DeBRULER, GIVAN, J., HUNT- C. appear drug-related. to be PRENTICE, JJ., ER and concur. Further, the evidence shows Lawson purchased pistols three on different occa- prior to the killing.

sions At the time of purchases,

one of seller asked weapon.

how to make a silencer for go place employ-

While Lawson did to his night killing, on the testimony ment DUNCAN, Appellant Paul James have left established Lawson could (Defendant below), job during hour, his dinner and that approximate time of Bush’s death coincided Indiana, Appellee STATE of closely Lawson’s dinner hour. More- (Plaintiff below). over, affirmatively no witness could state premises the Lawson had been on the work No. 479S105. during the entire Lawson evening. also Supreme Court of Indiana. threatened to kill Bush on least two murder, prior occasions to the and told his Nov. 1980. step-daughter, Sandy, might that she Thereafter, along killed with Bush. Sandy Rehearing Denied Feb. 1981. fact, did, gun appellant’s find loaded Sandy easily car. He also told that he could

slip factory out of the without

noticed.

The evidence also estab

lished a motive part killing on Lawson’s

David Bush. The decedent the first whom Sandy

man Lawson continued to company

keep step-father with after her tried to

had force an end relationship.

The evidence showed Lawson’s sexual and

unusually strong feelings emotional is, course,

Sandy. Evidence of a motive

entirely admissible probative E.g., Quinn

issue guilt. defendant’s Ind. Finally, appellant Lawson admitted Baisden, jail,

to his cellmate in witness Paul explained

that he had killed Bush. He

Baisden he had done leaving so

factory during his shift. Baisden also testi attempted

fied that Lawson offered

help him break jail, out of with the under-

6.Whether the trial court giv- erred in ing multiple sentences statutory provision. violation of one summary A of the facts from the record most favorable to the state shows that police James Menn was an undercover offi- working County cer with the Porter Nar- working cotics Unit. He was with an infor- mant named Dick Rush. Menn was intro- apartment. duced to defendant at Rush’s later, 3, 1977, A few days August on Menn drugs found out defendant had some to sell. apartment He went with Rush to an where people several present including de- fendant. While was seated at Menn table, dining room came defendant into the Johnston, Terry Valparaiso, appel- E. paper bag dumped room with a brown lant. pills several bottles and out onto the table. Sendak, Gen., Atty. Theodore L. Cindy A. drugs Menn examined the and then asked Ellis, Gen., Deputy Atty. Indianapolis, for defendant how much he wanted for the appellee. amount. he total Defendant said wanted for the whole lot. $540 HUNTER, Justice. Menn did not have that much with defendant, Duncan, James Paul was him so told defendant he would be back jury convicted of seven un- counts of in a little while after he tried to collect lawful dealing in schedule II controlled sub- money. more He able to collect was stances, (Burns 35-24.1-4.1-2 Ind.Code § at that time. When he returned to the $250 1975), dealing count of unlawful gave him apartment, defendant two of the substances, schedule IV controlled Ind.Code fifty pills bottles and for the $250. (Burns 1975). 35-24.1-4.1-3 He was sen- § They agreed remaining portion that the tenced to seven years terms of thirteen drugs day would cost The next $290. years, one term of ten the terms to be again apart- Menn met at his defendant concurrently. served He appeals now rais- purchased ment and the rest of the ing the following issues: for $290. 1. Whether improperly defendant was I. pro se in the trial even

required proceed to though he had not made a clear and un- Defendant first contends that he was un- so; equivocal request to do constitutionally required to proceed to trial being represented by attorney. without an 2. Whether certain testimony was erro- The record shows that defendant been had admitted; neously counsel, Dumas, appointed pauper Bruce 3. Whether the prosecutor’s allegedly prior months to the trial. several Dumas improper remarks denied defendant his had interviewed defendant and filed several trial; right to a fair pretrial motions in this case. About ten 4. Whether defendant was denied his date, days prior to the trial defendant indi- right to present stages at all of the trial happy cated he was not with Dumas. The jury permitted when the view to hearing August trial court held a absence; evidence in his questioned defendant about his time, 5. Whether the failing problems trial erred in with his counsel. At grant defendant prior credit for time served defendant stated he was not satisfied with to sentencing; and pretrial preparation Dumas’s and would proceed or employ than Dumas his own counsel rather himself have represent Irvin, supra. after propria persona. extensive A represent him. through the trial court and while he questioning by may defendant not deliberate stand, appointed was on witness defendant stated retained or process discharging represent he did Dumas to him. want counsel case is called whenever his disrupt judicial sound administration trial, morning of the On the States v. delaying such tactics. United court he did not want again told the trial (7th 1972) 457 F.2d Hampton, cert. Cir. him. The then represent Dumas to court den’d. 93 S.Ct. L.Ed.2d questioned and Dumas as to both defendant pretrial preparation and the extent of specific reasons defendant not satisfied argues that he was Defendant After further ex- representation. dangers advised of all and disadvan the trial questioning, tensive the court deter- before he tages self-representation of made representation mined that the had been ad- However, choice to himself. represent the equate explained to that time. He to up the record defendant was aware shows that rights regard- defendant his constitutional he stated to problems of these since the and ing representation by explained counsel he his own knowledge court that realized of right that defendant did not have the to law was and that he very the limited need have appoint the court someone defendant an is clear that under the attorney. ed It chose, the up but that it was to discretion of case defendant was circumstances of this appoint pauper the to coun- court whom right provided with his constitutional to if he sel. He asked defendant wished to counsel, court-appointed voluntarily but proceed to trial with Dumas as counsel or proceed without rep chose to with the trial an advisory position, but defendant stated resentation. no error here. There was he did Dumas. He told the court not want attorney he would like another but definite- II. ly Dumas. court would not have trial argues that Defendant next certain trial told defendant that the could not be testimony concerning Menn Officer postponed have to and so defendant would informant, Rush, conversation with the was proceed pro with the trial se. hearsay and and that admis prejudicial alleges now that he Defendant him a fair testimony sion of this denied represent was himself was forced to However, object not trial. did to defendant right to represen denied his constitutional testimony hearsay this on the basis It is by tation counsel. established error may the trial. It well settled that is charged having that a with com defendant predicated the admission of testi not be representation felony mitted a be allowed specific timely and mony unless there was a State, by (1978) v. counsel. German 268 State, Bell v. objection in court. the trial 880; 67, Ind. 373 N.E.2d Gideon v. Wain 1156; 1, (1977) 267 366 N.E.2d Rinard Ind. wright, (1963) 372 9 S.Ct. State, 56, 351 (1976) 265 Ind. N.E.2d however, L.Ed.2d indigent, 799. An does Thus, hearsay any the basis of was error on right not have absolute to counsel of his an waived. choosing. discretionary own This is complains court and can be reviewed Defendant further that highly prejudicial abuse testimony that discretion. Shoulders this was 168; had allegedly 267 Ind. N.E.2d irrelevant. The informer Irvin, 259 Ind. 291 stated that knew the attorney selling quality services of an because good 70. The were of drugstore. appointed may court were De they be forced stolen from a defendant, upon a but if has how this statement pauper the defend fendant not shown is no indication represented by ap prejudicial ant refuses to be since there counsel, one who actu- pointed he must find some method in it that defendant was the ally robbery. jury committed The burden view all the evidence which had been on defendant to show how his substantial up point. admitted to that The exhibits rights prejudiced. Phelan v. packages consisted of several containing the (1980) Ind., 406 N.E.2d Blackburn v. defendant, drugs allegedly purchased from State, (1973) 260 Ind. 291 N.E.2d 686. reports toxicologist, picture from the and a

of defendant. The trial court stated that III. jury there would be a recess and the short bailiff, accompanied by the would be sent to alleges Defendant next jury room exhibits to view the rather prosecutor improper made several remarks passed than have trial, them back forth in during during closing argu his the courtroom. ment during voir dire and that During remarks denied him a fair trial. argues proce- Defendant now this argument, prosecutor final made a com improper right dure was him the and denied pur ment to the effect that a total $540 to present stages at all critical of his chase was big drug dealing. time He also argues trial. He the exhibits could allegedly improper made comments on the subjected improper have been to use profitability disgusting nature drug jury. However, objection there was no dealing and referred drug to defendant as a procedure at trial and for the reasons dealer. the record shows that III, above, discussed in Issue no error has objection defendant made no any preserved been for review. these they remarks at the time were made. It is axiomatic that if the defendant fails to V. object prosecutor’s to the closing remarks alleges next that the tri any resulting waives error Defendant from the re al court erred in failing grant to him credit State, Ind., (1980) marks. Pavone v. 402 for time prior served to sentencing pursu 976; Ind., (1978) N.E.2d Womack v. (Burns ant 1975) Ind.Code 35-8-2.5-1 to § 382 N.E.2d 939. (now repealed). urges The state that he object Defendant also failed to to should not be any allowed credit since he prosecutor’s the questions comments and waiting incarcerated and for trial on voir during any dire and has waived error separate charges criminal prior filing to the point trial, therein. At one during the of the information on the charge. instant prosecutor tape referred to recordings agree. We which were never offered into evidence. This information in the instant case was complains Defendant now that this remark 27, 1978, filed on March and defendant had improper implied to the jury that been incarcerated for several months before they had not heard all of the evidence. that date as the charge. result of another objection there was no to this He was prison sentenced to the state on comment at the time it was made any 16, 1978, May separate for the offense and error here is also waived. We find no was tried and sentenced on the instant showing any of the above instances of charge in August, urges 1978. He now fundamental error which require would us he should be allowed credit for some three to overlook the well established rules of prior months to the 27 March date. The procedure requiring timely specific ob basis for this allegation contention his jections State, (1979) Ind., at trial. Gee v. that he was informed by attorney his 303; 389 N.E.2d Decker v. Ind. 6, 1978, January prosecutor had App., 386 N.E.2d 192. enough the charges information to file withholding filing instant case but was

IV. them at that time. After the completed state had witness, direct examination of its chief Of There is no merit to this contention. The Menn, ficer prosecutor asked that clearly pertinent statute part states that:

775 to- sions of Uniform Controlled given “the credit Substances sentenced any days question sentence for Act and has been considered in ward service of his similar jurisdictions other statutes. A as the result of the spent in confinement find that majority only opinions im- charge for which sentence is criminal when a single one offense is committed (Burns posed.” Ind.Code 35-8-2.5-1 § transaction is involved between same 1975) added). (emphasis place. time and principals The The will not be allowed for time credit has also Appeals Indiana Court of reached separate served a result of another as State, (1978) Bates v. Ind. this conclusion. State, (1976) 171 charge. Ind.App. Dunn 381 Martin App., 206, clearly applies This to 355 N.E.2d 870. N.E.2d 543. Ind.App., 374 6, 1978, January the time period Supreme 27, 1978, The United Court decid- being March as defendant was States an in Bell United only charge analogous held result of the other ed issue as a States, (1955) 81, applies 75 S.Ct. during It also period. pleaded L.Ed. 905. There the defendant period May actually 16 when he was after charging to two violations of counts prison. in the state 2421), each (18 the Mann Act refer- U.S.C. § period from March During transporta- ring to a woman. The different May defendant was vehicle, on tion was effected in the same separate charges. held a result of two trip. imposed the same The trial court con- He wants to claim credit for this apparently of appeals and the court secutive sentences it apply charge. time to each served (6th 1954), F.2d 629. The affirmed Cir. We find this no basis for contention. reversed, stating that: Supreme Court only application of the statute un sensible Congress punishment “if fix the does not der is to allow defend these circumstances for a without federal offense ant for the one credit time served. against resolved ambiguity, will be doubt nothing in the Although there is record on into turning multiple a single transaction point, we must assume defendant has 84, 81, 75 offenses . . S.Ct. . .” 349 U-S. already one credit for the time received 622, 905, 620, 99 910-11. L.Ed. offense, served to the other since he applied reasoning this courts have followed Other allegations contrary. made no He is or holding possession sale in simultaneous second,credit time entitled to a controlled type of sub of more than one served. error here. We find no to be in a single stance transaction Manning, 71 Ill.2d v. People offense. VI. 200; 765, 15 374 State Ill.Dec. allegation final er Defendant’s of Homer, 538 (1975) Or.App. 22 P.2d is ror the trial court should not have 945; Butler, (1970) N.J.Super. 112 under imposed multiple sentences Ind.Code Martin, 17; States 271 A.2d United 35-24.1-4.1-2, supra, since these seven § 498, aff’d, F.Supp. 428 (W.D.Pa.1969) 302 upon counts of a were founded violation den., (3rd 1970), cert. F.2d 1140 Cir. single and from statutory provision arose 27 L.Ed.2d Braden v. S.Ct. The argues the same transaction. state 1920) 270 F. States, (8th United Cir. were that since seven different substances sold, statute, which defendant was were seven violations even Our under there convicted, dealing is on though substances classified entitled “Unlawful all seven I, II, III or sub- pre under II. This Court has not a controlled schedule schedule stance,” proscribe viously question of whether and is intended considered spe- does not dealing drugs. or not sale of than in The statute the simultaneous more proscribed are intend- penalties one of substances that the cifically the controlled state substances single when different statutory provision would consti ed to additive However, It is separate single tute transaction. offenses. our stat are involved in a ute, therefore, single opinion, that a sales part, provi- the most contains the our principals livery amphetamine in between and amobarbital

transaction and place grams; the same time and which violates a the amount of 23.731 Count VII, delivery of amobarbital and secobarbi- single statutory provision justify does not grams. tal in the amount of 27.996 separate conviction of and sentence for though crimes even more than one con- appellant The that this evidence showed is trolled substance involved. types large had a number of different items drugs for sale. Each of the case, in the instant the actual item, packaged as a unit for sale of that drugs exchange of the and of the delivery drug and some pure some of them money place parts took in two distinct on mixes, apparent seeing of them as is different days, separate so two deliveries charges. The descriptions in the under- find, therefore, were involved. We police appellant cover officer and the dis- there dealing were two counts of unlawful agreed prices finally price cussed on the in schedule II controlled substances under for all of involved. The $540 Accordingly, circumstances. picked officer then out certain of the items cause is remanded to the trial court with day purchased them for $250 judgments instructions to vacate the that was all the he had. He came sentences on five of the convictions under day purchased back the next with $290 35-24.1-4.1-2, supra. Ind.Code § drugs. the rest of the judgment court is in all appellant The statute which under respects other affirmed. charged on all seven counts was 35-24.1— § 4.1-2, Dealing which is entitled “Unlawful PRENTICE, JJ., DeBRULER and concur. I, II, in A or III Controlled Schedule Sub- PIVARNIK, J., part concurs in and dis- stance.-Except as authorized this Article GIVAN, sents in in which part opinion (§ 24-24.l-6-l(c)) person 35-24.1-1-1 and J.,C. concurs. guilty is dealing unlawful in a Schedule II, I, or III if he: controlled substance PIVARNIK, Justice, concurring part knowingly manufactures or delivers a con- dissenting part. pure trolled substance adulterated classi- or opinion I majority concur in the I, II, except marijua- fied in or III Schedule therein, disposed first five issues but ” hashish; Delivery na or or . . . . opinion. VI dissent to Issue in said defined as an actual or constructive trans- My dissent in Issue VI is based on the fer from one to another of a con- properly fact that the trial court found the substance, or trolled whether not there is an defendant to be of seven counts of agency relationship. Ind.Code 35-48-1- § delivery of controlled substances and sen- (Burns Repl.) 1-. Although tenced him on all seven counts. then, statute, apparent It is under this the originally charged State had that the person that each time a delivers or trans- deliveries in these seven counts involved fers a that falls controlled substance under n both I II drugs, they Schedule and later I, II, III, any of or he commits Schedules amended the informations to read they the crime in said statute. The described were substances classified under Schedule fact in place that several sales take one II. The counts on which this defendant “transaction” is of no moment whatever in I, guilty delivery was found were Count of determining whether one crime or several amphetamine in the grams; amount of 8.776 have been committed. The test to use in II, Count delivery of amobarbital and seco- multiple determining whether counts are grams; barbital in an amount of 21.919 purposes jeopardy the same of double is III, Count delivery of secobarbital in the not they whether arose from the same act IV, grams; amount of 21.949 deliv- Count identity but rather on the of the offenses ery amphetamine of in State, Ind., the amount of 37.- (1978) themselves. Elmore v. V, grams; State, delivery (1979) Count of codeine in 382 N.E.2d Adams v. VI, Ind., the grams; amount of 3.157 de- Count 386 N.E.2d 657. here,

Appellant, days, two in the bank different same did not change that of- drugs, five namely, sold different amobarbi- Williams, fense four separate into ones. secobarbital, codeine, tal, amphetamine and supra, Rogers State, was followed sepa- phenobarbital. He further sold two Ind., (1979) 396 N.E.2d in gro- 348 which a quantities of drugs rate of some cery store’s from taken two mixed, being one mixture amobarbital separate employees grocery of that store. secobarbital, and and the other am- however, held, McKinley We in phetamine and secobarbital. What ma- the Ind., 400 N.E.2d that where a jority is saying is that since this all took robber the property belonging took place in one -he guilty “transaction” is of business also personal property took the one crime and committed no further crimes store, of the in person it constituted two selling in other six or mixtures of robbery counts of armed since there were drugs, though even each transfer was a taking two of the property offenses of an- delivery of a controlled substance under other force and in by putting fear. We items, fungible statute. These were not McKinley, in supra, Ferguson followed separate quantities but were of different Ind., 405 N.E.2d in which substances, held for sale in the individual one robber took the property business in units which Nor they were found here. also the personal property involved and of compared robbing can be with one a the employees of the business. victim and taking several items from his us, delivery In the case before of codeine person There, at the same time. the crime separate was a and distinct offense from taking is the property of of person delivery amphetamine, requiring fear, the victim by putting and this is proof of establishing different facts and act, while the perpetrator sev- extracting different offense than the other. The same eral items from of that victim. counts, can be said all of six the other Here, delivery there is a of a controlled though separate even each substance may substance each perpetrator time the makes be broadly classified as a II con- Schedule a delivery of a that is in substance violation trolled appellant substance. The therefore Elmore, supra, of the statute. In Ad- separate committed a crime the deliv- ams, supra, we principal established the ery of each substance the trial court that when a conviction one crime re- him properly sentenced on each the seven quires proof of facts in addition to those hold would be counts. To otherwise to en- crimes, required for convictions of other drug arrange every able a dealer to to sell then offenses are not type drug conceivable under the statutes separate properly sentences can imposed be them, forbidding the sale of in lots of semi Elmore, for each. As we said “Focus of assignments loads boxcar or railroad and be proper double jeopardy analysis must whole delivery of one transac- on whether prosecuted offenses to be certainly tion. This not intention punished are same and not of- whether legislature and is the law we fenses spring from same act or operative ” have it found in the above cases. circumstances.. .. The majority, opinion, in its followed a We have problem faced the same in situa- Appeals case, Court of tions where Martin more than one (1978) Ind.App., in which cited robbery. robbed same In Williams State, (1979) Ind., authority no but simply held where a 395 N.E.2d we held that an possess individual who robs a found to business es- controlled I, III, tablishment and classified in money takes business’ substances Schedules IV, four can employees, single he had committed one crime of convicted robbery possession. holding count of armed I think since the was in taking offense was business’ error we should it. The reverse by Martin, force and putting fear and fact reasoning supra, was followed that it was taken from four Appeals different tellers Court in Bates v. Ind.App., regard 381 N.E.2d 552

dealing in controlled substances. This hold- re-

ing is likewise in error and should be

versed. J.,

GIVAN, concurs. C.

Timothy FLEENER, Appellant

(Defendant Below), Indiana, Appellee

STATE

(Plaintiff Below).

No. 1079S289.

Supreme Court of Indiana.

Nov. 1980.

Rehearing Denied Jan.

Case Details

Case Name: Duncan v. State

Court Name: Indiana Supreme Court

Date Published: Nov 26, 1980

Citation: 412 N.E.2d 770

Docket Number: 479S105

Court Abbreviation: Ind.