Williams v. State

408 N.E.2d 123, 77 Ind. Dec. 281, 1980 Ind. App. LEXIS 1579

• Court: Indiana Court of Appeals
• Decided: July 22, 1980
• Docket: 2-1076A393
• Status: Published

Opinions

YOUNG, Judge.

Dave Williams was convicted of possession of heroin in an amount in excess of ten grams, IC 1971, 35-24.1-4-l(c) (Burns Code Ed.) (now repealed). We affirm. This cause was assigned to this writer in December, 1979.

I.

Williams objected at trial to the State’s final argument. One alleged error is that the prosecutor asserted that Williams’ defense was “contrived.” Counsel objected for the reason that this argument attacked counsel’s integrity. Counsel did not ask for any specific relief by way of admonition, mistrial, or otherwise. We can reverse only if the defendant was placed in “grave peril.” Marsh v. State, (1979) Ind., 396 N.E.2d 883, 886; Washington v. State, (1979) Ind., 390 N.E.2d 983, 987-88. This comment did not place Williams in grave peril. There is no reversible error.

In a second instance the prosecutor referred to the possibility that one of the state’s witnesses would potentially be able to take advantage of the “good time” statute. The appellant argues this was error. The prosecutor’s reference was improper. Lyda v. State, (1979) Ind., 395 N.E.2d 776, 780. Nonetheless there is no reversible error because the court properly admonished the jury and the defendant was not placed in grave peril.

Williams asks us to review other instances of alleged prosecutorial misconduct during final argument. Counsel did not object to these instances. They are waived. Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156, 1160. Counsel claims these matters are reviewable nonetheless as “fundamental error.” We disagree. This doctrine usually has been successfully advanced only in such matters as the prosecutor commenting on defendant’s silence, Dooley v. State, (1979) Ind., 393 N.E.2d 154, 156; a failure to read instructions, Drake v. State, (1979) Ind., 393 N.E.2d 148, 149; or improper sentence, Lewandowski v. State, (1979) Ind., 389 N.E.2d 706, 708. Appellant’s failure to object during final argument to the prosecutor’s statements that the case is “bizarre”; or that a witness is not credible; or that a witness has lied, does not rise to the level of fundamental error.

II.

Defendant claims that during final argument the prosecutor improperly attacked the defendant’s character. The defendant cites the page of the record which supposedly contains his objection to this argument. The citation reveals only that Williams objected to what the prosecutor was saying about some third party. Except for some conclusory statements the defendant has not explained how this harmed him. Williams’ brief cites no page of the record containing any objection made by him to a comment by the prosecutor on Williams’ character. No error is preserved. Ind. Rules of Procedure, Appellate Rule 8.3(A)(7).

III.

Defendant claims that the cumulative effect of the prosecutor’s final argument was to comment on the defendant’s failure to testify. Without much in the way of additional argument or rationale, defendant merely refers us to his prior arguments on issues I and II, supra. We do not find that any of these statements comment on defendant’s failure to testify. We furthermore disapprove of any attempt by the defendant to try to present appellate argument simply by a general reference to other portions of his brief.

IV.

The defendant complains in sections IV and V of his brief that the trial court improperly permitted certain rebuttal testimony by police officer Wurz. The facts relevant to this error are as follows. The police searched defendant Williams’ apartment after having made a controlled buy. The buy had been executed by James Wilson. Apparently while the search was in progress, Williams mentioned in the presence of officer Wurz that he had bought the drugs for his companion, Diana Wilson. She was the sister of James Wilson.

At trial James Wilson testified for the defense. His testimony was that Wilson himself had secreted his own drugs in Williams’ apartment without the knowledge of Williams. When the police had Wilson execute the controlled buy, Wilson testified that he simply removed some of his own drugs from Williams’ apartment and turned them over to the police. The net effect of Wilson’s testimony was that Williams had no knowledge of the presence of drugs in the apartment.

To rebut this, officer Wurz was recalled to the stand. He thereupon testified that Williams had said he had bought the drugs for Diana Wilson. Williams objected prior to the giving of this testimony on the ground the statement by Williams had not been disclosed by the State during pre-trial discovery. He also apparently objected, secondly, on the basis that the State was impermissibly attempting to “shore up” its case on rebuttal.

We first address the question whether the testimony of Wurz should have been excluded due to the alleged violation of the discovery order. In his motion for discovery the defendant asked for “[a] copy of memoranda, statements, whether oral or written by the defendant and/or of all witnesses who are to be called in prosecution of this cause.” The prosecutor answered that “[i]n response to rhetorical paragraph five of defendant’s Motion no memoranda exist of any oral or written statements of either the defendant or State’s witnesses.” The prosecutor’s answer put the defendant on notice that the prosecutor believed the defendant had requested only statements which had been reduced to writing.

With this as a background the defense counsel and the prosecutor, Mr. Knapp, explained their respective positions to the trial judge as follows.

“Mr. Roberts: Your Honor, at this point in time, if this witness would testify as to any oral statements that have not been previously furnished to me, I would object, because the State is attempting to shore up its case, and I filed a motion with this Court on September 22nd, Judge, wherein I asked for a copy of memorandums, statements, whether they be oral or written, by the Defendant and/or all witnesses who were to be called in the prosecution of this cause, and I have no such statements.

“Court: Is it the contention of the parties here that this is a written statement? “Mr. Roberts: Pardon?

“Court: Is this a written statement, you’re contending there is a copy or a memoranda some place that was not furnished you?

“Mr. Roberts: No, sir, in my Motion for Discovery, Your Honor, I asked whether or not there were any oral or written statements made by this Defendant in this cause, and I received a reply from the State of Indiana, I have so many files here, Your Honor, but I have not received any copies of anything reduced to writing as to any oral statements made.

“Court: Mr. Knapp?

“Mr. Knapp: Your Honor, in Defense counsel’s Motion for Discovery dated September 22nd, 1975, in the fifth rhetorical paragraph, I believe Defense counsel has a copy in front of him, a copy of memo-randa, statements, whether oral or written by the Defendant and/or all of the witnesses who were to be called in the prosecution of this case. My reply to that, in reading that, I think it’s a very ambiguous request, I answered it that in response to rhetorical paragraph five of Defendant’s Motion, no memoranda exists of any oral or written statement of any of the State’s witnesses, and this is what the State understood Defense counsel’s request to be. I was not aware from the way he phrased his Motion that he was requesting that all oral statements made by anybody involved in this case were to be furnished him, and there were no memoranda made of any oral statements made.”

Williams’ objection was overruled. Officer Wurz then testified to the aforementioned statement by Williams.

The prosecutor and the trial court reasonably believed that the defendant’s discovery request was directed only at oral statements which had been reduced to writing. We likewise adopt that view. The defendant created the uncertainty surrounding the discovery request. He must suffer the adverse consequences. We again refer the defendant to the prosecutor’s response to the discovery request which explicitly disclosed his interpretation of the request. We find no error in permitting the rebuttal testimony over the objection that the prosecution had violated the discovery request. We believe that at most the defendant was entitled to a continuance, see Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d 1149, 1153-55, but none was requested.

We now consider whether that testimony should have been excluded on the defendant’s objection that the State was impermissibly using the rebuttal to “shore up” its case. When the. defendant complains of improper rebuttal, his remedy is to present his own rebuttal. Hudson v. State, (1976) 265 Ind. 302, 354 N.E.2d 164, 169; Shelby v. State, (1972) 258 Ind. 439, 281 N.E.2d 885, 887; Hollowell v. State, (1971) 256 Ind. 467, 269 N.E.2d 755, 758-59; Griffith v. State, (1959) 239 Ind. 321, 157 N.E.2d 191, 192; Hansen v. State, (1952) 230 Ind. 635, 106 N.E.2d 226, 229. In this ease the defendant had an opportunity to present a rebuttal. Consequently we will not reverse on the ground that the State’s rebuttal was improper. See cases cited, supra.

V.

Defendant claims the trial court erred by finding that the police had probable cause to suspect that the defendant was in possession of heroin. This pre-trial probable cause procedure was abolished by Hardin v. State, (1976) 265 Ind. 635, 358 N.E.2d 134. Nonetheless Henry v. State, (1978) Ind., 379 N.E.2d 132, requires us to pass upon the defendant’s claim where, as here, the defendant had raised at the trial level the absence of “entrapment probable cause” prior to the decision in Hardin v. State. Compare Stayton v. State, (1980) Ind.App., 400 N.E.2d 784, 786. We hold that the trial court properly decided this issue. The quantum of evidence necessary to support the probable cause to set in motion an entrapment scheme is minimal. For example, it is less than that required to support a search warrant. Locklayer v. State, (1974) 162 Ind.App. 64, 317 N.E.2d 868, 872 n. 3. In the case at hand the probable cause to suspect the defendant was supplied by Wilson. Wilson had just been detected by the police to be in violation of his probation. The offer of the police to help out Wilson on this violation in exchange for Wilson’s assistance was pressure upon Wilson to supply truthful information. Consequently Wilson’s statement to the police that Williams possessed heroin provided the necessary “entrapment probable cause.”

VI.

Defendant claims the court erred by refusing to admit his exhibit H. He claims this exhibit, a transcript of the probable cause proceeding, would serve to have impeached the rebuttal testimony of police officer Wurz.

The defendant argues no more than that the exhibit would be used to impeach Wurz. He does not elaborate upon this. The defendant offers no explanation of the manner or method in which the exhibit could have been used to impeach Wurz. The defendant has failed to muster a sufficient appellate argument. We will not permit a conviction to be overthrown upon the unsupported argument that impeaching evidence was excluded. See Ind. Rules of Procedure, Appellate Rule 8.3(A)(7). We also note that the admission of rebuttal evidence is in the court’s discretion. Teague v. State, (1978) Ind., 379 N.E.2d 418, 427. There is no error.

VII.

The defendant claims error on the basis of communications between the bailiff and the jury. The jury asked to rehear certain testimony. Both counsel for defendant and the State agreed that this should not be done. The defendant now claims that the bailiff had an “extended dialogue” with the jury about this matter. The argument in brief (three - sentences) sheds no light on the nature of this “extended dialogue.” No error is presented for review. AR. 8.3(A)(7).

VIII.

Defendant claims the evidence was insufficient. There was abundant evidence that heroin was found in defendant’s apartment. Furthermore, there was evidence from which the jury could infer that defendant Williams knew of the presence of the drug. This evidence was the testimony of officer Wurz in which he recounted the defendant’s statement that the defendant was keeping the drug for his companion, Diana Wilson. The evidence was sufficient.

IX.

The defendant complains that the court erred by overruling his motion to correct errors without first having given him a hearing thereon. None was required. Keys v. State, (1979) Ind., 390 N.E.2d 148, 151. Defendant also complains that the trial court erred by overruling his motion without first having received counter-affidavits from the State. We fail to see how this prejudiced defendant, or that he has any standing to raise this as error.

Affirmed.¹

CHIPMAN, J., concurs. MILLER, P. J., dissents with opinion.

1 . The record of this cause contains several editorial comments in lieu of marginal notations. We do not want this practice to continue, see Irwin v. State, (1978) Ind.App., 383 N.E.2d 1086, 1087, n. 1, and we may dismiss the appeal for failure to make appropriate marginal notations, State ex rel. Spelde v. Minker, (1963) 244 Ind. 421, 193 N.E.2d 365.