*1 463 exchange things, an order of court for names general during called and witnesses the trial testimony. Appellant expected of their claims City called violated when Chief Charles this rule was Captain Kurmis. Boone and Frank Neither of these witnesses testify Commission, but did had testified before the before the given prior Appellant claims he had been trial court. In information that men would be called as witnesses. these place, ample support evidence to first there was findings hearing. at Commission of the Commission In place, the second the record reveals that both Boone Chief Captain by Kurmis were first called as witnesses appellant. only objection appear appellant would It really has of these two witnesses was their appellant testimony that certain made admissions concerning question. regard to them in In his conduct this they by they direct testified on examination alleged acquainted night in with the infractions on the charges. question questions did answer City would be unrealistic to most believe that could not greater pursue detail, which, in fact, this matter in done. appellant. no violation of the rule as We see maintained fact, application we see no rule this case. We permitting hold trial court did not err both Chief testify Captain Kurmis to case. Boone and this find no reversible error in this case. We is, therefore, trial court affirmed. Arterburn, C.J., Prentice, JJ., Hunter and concur; De- Bruler, J., concurs result. Reported in N. 2d 429.
Note. —
John N. M. N. Jones v. of Indiana. May 25, 1973.] 1271S357. Filed
[No. *2 appellant.
George Purvis, Indianapolis, for A. Attorney Bucher, General, Sendak, William D. Theodore L. General, Attorney appellee. for Deputy Jones, appeal by M. is an John N. J. This Hunter, N. possession below), a for (defendant from conviction appellant charged by appellant 4, 1971, March of heroin. On arraignment plea and entered affidavit, then waived and he August by jury guilty. commenced on Trial of not Appellant jury guilty. returned a filed verdict overruled Motion to Correct Errors which was and this appeal followed. presented are for review:
Two issues 1, 2 1. and 3 and Whether State’s exhibits properly evidence; into thereon were admitted 2. con- the evidence was sufficient to sustain the Whether viction. generally
The facts are as follows. An officer of Indianapolis Department appellant standing Police saw approached appellant street corner. The and identified officer police ran. himself as a officer. The then broke and pursued appellant, keeping The officer him at all within times sight. something running, appellant his As he was threw ground. caught appellant, then The officer placed scuffle, after a him and him under subdued arrest. ground
officer retrieved what had been thrown which *3 yellow envelope. envelope turned out to be were a Inside the containing capsules white, powdery a substance. The Reagent Marquis a officer then conducted test on the con- capsules tents of one of the and test the the indicated that possibly substance could be heroin. envelope police
The officer initialed the took and it to the placed station he where it in the narcotic lock box. On October Sergeant only 23, 1970, Caine, key the man with the box, placed lock the removed evidence from the lock box and requires keys open it in narcotic vault. the two the vault; keys possession the one of of an from officer property room, kept by and the other is a narcotics officer. 28, 1970, Sergeant December On Caine removed the evidence from the vault and took it to the crime lab. The evidence apparently January 7, 1971, remained in until the lab when expert Caine, qualified drug who as an identification and testing, conducted several tests on the substance. then He where it the evidence to vault remained returned until the brought arresting day officer removed it and it to court the Sergeant tests, Based on Caine testified of the trial. capsules opinion heroin. contained of the was objection Appellant’s major to the admission of ex objection (and hibits to Caine’s based on tests exhibits) conducted on the break was that a making possession occurred, chain of of the evidence the evidence the doctrine inadmissible under established (1970), 525, State 652. in Graham v. 253 Ind. 255 N. 2dE. doctrine, connecting foundation must laid Under be showing defendant and exhibit with the continuous where possession of the from the it came into abouts time police purpose until of it was tested. The any substitution, tampering avoid claim rule is to mistake.
Appellant period claims from December January laboratory, when evidence was taken 7, 1971, testing conducted, when the constitutes suffi- cient break in the chain make inadmissible. the evidence agree. Sergeant do not We Caine testified that while he working capsules, they on the were his control exclusive possession. The exhibits were at all con- times within the police department fines of they were key they under lock and not was while were in the labora- tory.
Certainly presented A difficulties are in this instance. degree fungible high scrutiny goods placed must be of a heroin, especially where,
nature such here, as evidence is an essential element the crime. See Guthrie 2d v. State 254 Ind. 260 N. ten-day period during 579. We are with a faced which the security explained measures, any, has not what if *4 integrity However, maintain un taken to of the exhibits. Graham, complete we are un like not faced with explained only chain. break who were officers handle the exhibits at the trial. known to testified
467 certainty but absolute concerned with not here We are evidence possibility probabilities. The mere with tampered not make might with will have been (1972), totally objectionable. Kolb State v. evidence (1972), 541; State E. 2d Rose v. 282 N. 258 Ind. exhibits 486. time the E. 2d Ind. 281 N. laboratory. they key, were in the lock and under were not anyone unlikely without business possibility tampering seems present and the would be custody the chain of sufficient highly We hold remote. properly admissible we hold exhibits were at bar and
case evidence. into
Appellant contends introduction State’s also containing capsule white, powdery 3,No. which one lone connected to substance, because it was never was erroneous shows, any way. The record or to this defendant crime in for concedes, no foundation was laid State inference introduction of this exhibit. The reasonable capsules envelope, from the would be that it was one of duty not relieve the of its such an inference does State but lay ex- proper introduction of the foundation for the hibits. objection
However, appellant’s to State’s for the basis 2; that for Nos. 1 and Exhibit No. 3 was the same as it was possession. did insufficient chain of At is: object not for reason the exhibit was sufficiently connected to the defendant. He did not allegation Correct include such an in his Motion to even ob an exhibit is admitted over an Errors. accused’s Where urge objections different jection, accused cannot for appeal. time on Short Ind. first v. E. 2d 258.
237 N. appellant objected insufficient Even on the of an basis connection, failed to demonstrate how the admission he has capsule prejudicial his cause. The exhibit was ninety capsules question which identical some other *5 properly were admitted into evidence. could The exhibit only be considered cumulative.
Appellant’s contention second that in evidence is support the conviction sufficient is based that claim the tests conducted on the substance not con- enough presence elusive establish the be of heroin yond Sergeant reasonable doubt. preliminary conducted Caine that he five showed indicator substance, tests on the and that the tests indicated that an opium present. derivative was He then his stated that it was expert opinion substance was heroin. At no during the or direct cross-examination of Caine was questioned as to the or conclusiveness of these tests. circumstances, opinion Under these we are of prima showing State established a that heroin in was facie Any present. techniques in deed weakness and methods testing by should be established either cross-examination through employment expert of one’s own witness. The appellant neither followed course in instance. this Since showing prima heroin State’s remained uncontested facie uncontradicted, we hold the evidence to be sufficient presence being of heroin. There establish the no other basis inadequate evidence, claim of for the we hold that the evidence support the sufficient to conviction. foregoing judgment all reasons the For of the trial is affirmed. court
Judgment affirmed. Prentice,
Arterburn, C.J., J., concur; Givan, J., concurs J., DeBruler, opinion; opinion. dissents with with Concurring Opinion concur result J. I case, this but take Givan, language exception majority with the used opinion dealing the last contention of appellant, with support is insufficient to evidence the conviction. unnecessarily majority opinion defense infers conducting may cross- have been not counsel at fault for tests witnesses examination State’s possessed by the made to determine whether substance heroin. Quite expert extensive cross-examination of an wit- often expertise, merely his ness results a further demonstration of making resulting presenting in the of the case for the side him a witness.
Following testimony expert presented by State, the the defense counsel had a decision make to the position possible of his cross-examination. He was in the best judge go regard. to the to far be how he should in that The presume course he took obvious from this record. We must believed, position argue, he and we are in that an point cross-examination extensive at would have good against the accentuated case. The State had a State’s case appellant, was well defended. Insinua- contrary are tions to the uncalled for.
Dissenting Opinion majority opinion from dissent in this DeBruler, J. I by case I do not because believe the foundation laid the State for either the admission of the heroin exhibits themselves expert makeup adequate as to its chemical was necessary possession. chain of establish by There have been three cases handed down this Court years requirements recent which have established chain of possession. police Graham case records showed property the heroin exhibit had been removed from room by police day days officer on one and not returned until six by later another officer. officer at Neither testified the trial explanation and no whereabouts of the in the intervening given. period In that was we held: situation by producing “Unless the State can show records or testi-
mony the continuous whereabouts of least the exhibit at 470 possession it until between the time was came into their it laboratory composition, testi- determine its tested to laboratory’s findings mony of is inadmis- the State as to (1970), N. sible.” Graham State 255 Ind. 255 v.
2d 652. N. The case of State Guthrie v. Ind. vaginal E. 2d concerned smears which delivered to the Indiana Police Command Post in connection with State testifying rape prosecution. delivery made one was left officer who exhibits on the Post Commander’s stated midnight. desk at about No one was at desk at the morning quiet. Post at The next 8:00 a.m. picked up same testifying another the exhibit from the officer testing. place on desk and it for took The Court in that case stated: “However, has whereas here State introduced evi- suggests strongly dence which the exact whereabouts of probabilities.”
the evidence the issue becomes one of recently packet Most Kolb mari- decision concerned juana Laboratory. sent to the Indiana Police ex- analyzed property hibit was in the room but an unknown at Appellant complained persons time. access that other property custody room but we held a chain of *7 because, explanation presence established “There is an of of day question.” Kolb the exhibits for each v. State Ind. 282 N. 2d 541. me, therefore, developed It seems clear to that there has stage analysis custody problem. chain two of the of stage “exact first is to establish the whereabouts” of the ex- during police custody. the time it was If where- hibit the the cannot abouts of exhibit be established for the entire time police custody it was in the evidence should be excluded at point only without further consideration. It is when the clearly location of the is established that we need con- “probabilities” cern majority ourselves with as the states. In some high instances the location of the exhibit would create a supra. State, Guthrie v. probability if undisturbed. remained weigh tampering, how- impossible probabilities to' is the It the clearly where ever, established unless can first be it times. at all exhibit was
Turning appeal I this do not believe facts in this to the only that, majority’s “The the statement can sustain record key they under lock and were not exhibits testimony concerning laboratory.” Sergeant Caine’s it he first removed the time location of exhibits between January testing on vault on December 28th from the day in the location. At trial the evi- break creates ten 7th following: point this was the on dence your any
“Q. you performed tests in course of Have capsules ? any of duties on these IYes have. A.
Q. When? on I from the narcotic vault
A. removed evidence laboratory for I 1970, and took it to December testing. January 1971,1 .” On tested it. . . Sergeant point objected counsel At this defense objection reading notes. The from his was overruled and Sergeant testing testimony continued his January my opinion 7th. can this be viewed as failure the location establish of the exhibit conjectural testimony all times. to state at this during esablishes exhibit remained in the lab period. any leaves us without information clearly it to where was failure establish the location per se all times is a failure to establish a sufficient at chain of custody. I believe cases Indiana hold that we should weighing probability tampering, majority not be as the clearly attempts, can we first unless establish where the located. exhibit was disagree prob- with the
I further treatment of would tampering, even if we could establish the location abilities being in the at all times. exhibit as There *8 arrangement security is as to what existed in the laboratory; open whether evidence was left in locked up, laboratory during or who access this time. provide There is a failure the State to circum- us with the surrounding weigh stances lab in may order that we probabilities the factors involved and determined tampering. opinions both the Guthrie and Graham we stated special
we must exercise
custody problem
care in the
when
fungible
the exhibit is one of a
nature and where
its
an
essential element of the crime. The exhibit
is of
here
that nature and I do not believe the State has met its burden
establishing
requisite
precedent
foundation
to ad-
exhibits, particularly
light
mission of these
special
exercising
care
should be
we
here.
Reported in
Note. — Sargent Lundy Vigo Superior ex rel. & v. The Judge. Bitzegaio,
Court Harold May 29, 1973.] [No. 473S67. Filed