concurring.
I concur in the affirmance of King’s conviction. I do not, however, concur in the implication of Chief Judge Buchanan’s lead opinion that Officer Hurlock’s testimony concerning a telephone call between Smith and King was not hearsay. (See particularly Footnote 9 at page-.) The majority’s emphasis on Bean v. State (1978) Ind., 371 N.E.2d 713 and Walker v. State (1976) 265 Ind. 8, 349 N.E.2d 161, cert. den. 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 313, may mislead the unwary reader. Both cases are inapplicable to the extent that they are relied upon to implicate King through hearsay.
In Bean, supra, the defendant sought to testify about a conversation he had had with two friends prior to a robbery. The court there adopted the defendant’s proposition that the testimony was admissible as proof of making the statement, but not as proof of the matter asserted therein. The Walker case, supra, held that testimony establishing the occurrence of a telephone conversation was permissible whereas any references to the content thereof were not. However, neither of these cases supports this court’s suggestion that a non-participant can testify as to the identity of the person on the other end of the phone. Here, there was no evidence that Officer Hurlock knew King’s phone number, watched Smith dial, or heard the recipient’s voice. At best, Hurlock from personal knowledge could testify only that Smith made a phone call and appeared to converse with someone.
In Footnote 9, Chief Judge Buchanan states that the questionable testimony may be admitted under an exception to the hearsay rule. He asserts: “What is normally ‘hearsay’ testimony may be admissible to show the reason for further investigation by the police.” In limited situations this principle bears some validity, but not in the case before us. As in Mayes v. State (1974) 162 Ind.App. 186, 193-94, 318 N.E.2d 811, 815:
*1274. we are not here concerned with a probable cause for arrest or with a search and seizure, the validity of which depends upon the reliability of an informant. . . . And we might . conclude that the testimony was not . introduced merely to explain why the officers proceeded to 30th and Illinois but rather was intended to serve as an additional weapon in the evidentiary arsenal
In Glover v. State (1969) 253 Ind. 121, 126, 251 N.E.2d 814, 818, the court explained:
“Hearsay testimony that law enforcement officers use and rely upon for investigation and thé gathering of competent and material evidence, of course i@ not evidence properly to be used in the trial of a criminal case.”
In the context of the question asked of Officer Hurlock, it is readily apparent that the testimony was elicited for the sole purpose of proving the truth of the matters therein asserted. See: Carr v. State (3d Dist. 1979) Ind.App., 388 N.E.2d 603. Accordingly, it was hearsay and was improperly admitted. However, in view of the overwhelming evidence against King, I agree that the error in admission was harmless and therefore not cause for reversal.
I further concur in Chief Judge Buchanan’s treatment of the other issues before us.
MILLER, Presiding Judge(sitting by designation).
I respectfully dissent.
I do not agree with the Majority that the hearsay testimony of Officer Hurlock as to an alleged telephone conversation between Karen Smith and Defendant King was harmless beyond a reasonable doubt.
The alleged conversation contained an admission by King that he possessed hashish. Testimony of a police officer as to extrajudicial statements by a third person, not a witness at trial, concerning admissions allegedly made by a defendant in the presence of such a third person is hearsay and its admission is reversible error. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. As stated in Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814, at 818:
“. . . Hearsay testimony that law enforcement officers used and rely upon for investigation and gathering of competent and material evidence, of course is not evidence properly to be used in the trial of a criminal- case . . . ”
Accord: Carr v. State (1979), Ind.App., 388 N.E.2d 603.
The Majority concludes that the uncorroborated testimony of Officer Hurlock concerning the events surrounding the alleged purchase constituted “overwhelming” evidence of King’s guilt and the prejudicial hearsay testimony was therefore rendered harmless citing Mayes v. State (1974), 162 Ind.App. 186, 318 N.E.2d 811 and Wills v. State (1974), 162 Ind.App. 159, 318 N.E.2d 385. Thus, the issue presented is whether the testimony of one credible witness, in this case a police officer but oftentimes a victim, constitutes “overwhelming” evidence of a defendant’s guilt. Mayes, supra, and Wills, supra, do not support the Majority’s position. In Mayes, supra, numerous police officers observed the commission of the crime. In Wills, supra, two officers participated in the search and seizure of a concealed weapon. Further, in Gillman v. State (1979), Ind., 389 N.E.2d 327, our Supreme Court concluded that “the evidence of guilt was overwhelmingly established by the eyewitness testimony of numerous police officers.” (Emphasis Added). Again, in Moore v. State (1972), 258 Ind. 200, 280 N.E.2d 57, where the defendant was apprehended in the act of attacking the victim by two co-workers and held for the police, the Court held the evidence of guilt to be “overwhelming.”
Officer Hurlock revealed that after the alleged sale he retained the hashish in his personal possession, allegedly locked in his desk drawer for a period of twelve days before delivering it to the State Police chemist. There was no evidence as to where his desk was located. After it was returned to him by the chemist, Hurlock, for the first time, placed it in the police *1275property room. Although this testimony was sufficient to establish chain of custody, still this delay of twelve days before the evidence was placed in normal police channels raises the question of possible substitution, tampering and/or mistake.
In Jones v. State (1973), 260 Ind. 463, 296 N.E.2d 407, 409 our Supreme Court stated:
“. . . A high degree of scrutiny must be placed on goods of a fungible nature such as heroin, especially where, as here, the evidence is an essential element of the crime. See Guthrie v. State (1970), 254 Ind. 356, 260 N.E.2d 579. We are faced with a ten-day period during which the State has not explained what security measures, if any, were taken to maintain the integrity of the exhibits. However, unlike Graham, [Graham v. State, 1970, 253 Ind. 525, 255 N.E.2d 652], we are not faced with a complete and unexplained break in the chain. The only officers whov were known to handle the exhibits testified at the trial.
We are not here concerned with absolute certainty, but with probabilities. The mere possibility that the evidence might have been tampered with will not make the evidence totally objectionable
In the regular course of a controlled substance seizure, the drugs are delivered without delay and usually within a few hours to a designated, secure storage area such as a safe or property room under control of the particular police agency. This, unfortunately, was not done in the case before us. Here, in my opinion, the twelve days in which the evidence was kept in the personal possession of Officer Hurlock, rather than being placed immediately in the secured police property room, contributed substantially to the opportunity for substitution, tampering or mistake. The jury could reasonably have inferred, among other things, that Officer Hurlock, who testified he made numerous drug purchases, was in the habit of retaining seized controlled substances in his personal possession and, thus, the evidence from another “buy” could have been mistakenly substituted by Officer Hurlock for the evidence in this case.
In conclusion, because Officer Hurlock was the only witness to the alleged sale and, further, because of the long delay during which the evidence was personally retained by said Officer, I do not consider the evidence in this case to be “overwhelming” nor can I say that I have “no reasonable doubt that the average jury would reach the same result” without the improper testimony. Gilman, supra. The admission of the prejudicial hearsay evidence did not constitute harmless error.
I agree with the Majority that George L. Hanna, the special prosecutor, was a de facto public official and the indictment signed by Hanna was not subject to collateral attack by a motion to dismiss. Thus the result reached by my colleagues on this issue was correct.
However, I disagree with the Majority in that I find the Judges of Tippecanoe County acted erroneously in issuing their Order appointing the special prosecutor. Such Order was clearly overbroad and vague. Our statute, Ind. Code (1971), 33-14-1-5, and case law authorize the appointment of a special prosecutor in a particular case of specific class of cases where the regular prosecutor has a conflict. In the case of his total incapacity, a special prosecutor may be appointed to fulfill all his duties. However, our law does not contemplate the existence of two public prosecutors within the same jurisdiction exercising the same or similar functions, a situation which is created by the Order in question.
Chief Judge Buchanan states:
“This Court is in no position to second guess a prosecutor’s decision as to his own disqualification — whether that disqualification be as to one case, or as to a more general classification of cases. This is within the discretion and judgment of the prosecutor in fulfilling the duties of his office. Whether he is properly fulfilling those duties is ultimately for the judgment of the voters — not the courts.” '
I disagree. A prosecutor cannot be disqualified at the whim of a trial judge. State ex rel. Williams v. Ellis (1915), 184 Ind. 307, *1276112 N.E. 98. I also believe a prosecutor may not disqualify himself at his own whim merely because the prosecution may appear to him to be unpleasant or inconvenient. The Code of Professional Responsibility for Attorneys At Law adopted by our Supreme Court provides, in part:
“. . . While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism . . . ” (EC 9-2)
In Sapienza v. Hayashi (1976), 57 Haw. 289, 554 P.2d 1131, cited in footnote 5 of the lead Opinion, this Canon was discussed as follows:
“Canon 9 was not intended to serve as a sweeping basis for the disqualification of attorneys who are otherwise, free of potential conflicts of interest. Neither was it designed to provide a convenient refuge for the timid practitioner or to serve as an excuse for the public servant to avoid the performance of an unpleasant duty.” (citations omitted).
I would hold under our statute and case law that a prosecutor, at a minimum, must represent to the trial court that he has a conflict before the court is authorized to replace him in a particular case or cases. This was not the situation here.
With regard to the Order itself, its over-breadth, vagueness and numerous ambiguities are apparent even on cursory examination. The first part of the Order allows the special prosecutor to act upon “certain allegations . . . concerning possible criminal conduct by public officials”. First, there is no allegation that James A. Kizer, the Prosecuting Attorney, had any conflict whatsoever which would serve as a basis for disqualification in the prosecution and investigation of these “allegations”. Second, since the Order does not define “public officials,” it purports to grant the special prosecutor authority to investigate and prosecute any “public officials”, whether they be connected with the executive, legislative or judicial branches of the Federal, State or local government.
The second portion of the Order permits the special prosecutor to investigate and prosecute allegations “concerning the possible commission of crimes which have not been properly investigated or prosecuted”. First, the language fails to denote whether the special prosecutor’s authority is limited to only those particular crimes which occurred prior to his appointment. Second, it is not clear whether the failure of the regular prosecutor to properly investigate or prosecute one crime would open the door for the special prosecutor to prosecute all crimes of that particular class. For example, if a theft case were improperly prosecuted by the regular prosecutor, would the special prosecutor then be authorized to prosecute all crimes involving thefts, including burglaries and robberies? This appears to be the interpretation given the language in the lead Opinion.1 Finally, does the language authorize the special prosecutor to prosecute crimes committed after his appointment? This interpretation would give the special prosecutor dual jurisdiction with the regular prosecutor who remained in office.
In the performance of their duties prosecutors decline prosecution in a variety of cases. In most instances these declinations are based on lack of evidence. Additionally, limited manpower and resources often force prosecutors to concentrate their efforts in those areas which, in the public interest, they deem most critical while giving certain types of crimes much less priority and, consequently, less attention. This legitimate exercise of discretion by a prosecutor, on occasion, is met with disapproval by law enforcement agencies, his own deputies and others. At times, criticisms of his judgment may be justified. Unfortunately the language used by the Majority could be *1277interpreted as opening the door to the replacement of a prosecutor upon the complaint and testimony of a dissatisfied police officer, former deputy2 or third parties, including victims of crimes, members of their families, local volunteer crime commissions, etc.
In State ex rel. Spencer v. Criminal Court of Marion County (1938), 214 Ind. 551, 15 N.E.2d 1020, 1022, our Supreme Court said:
“. . . [t]he prosecuting attorney is a constitutional judicial officer, elected by the people, and removable only by impeachment. In him is vested discretionary judicial power to investigate and determine who shall be prosecuted and who shall not be prosecuted. If he fails to exercise his official discretion, honestly and impartially, the remedy is by impeachment. Judges and Courts may not substitute their discretion for that of the prosecuting attorney. Inquisitorial powers are vested in the office of the prosecutor and in grand juries, and not in judges and courts '. . .”
15 N.E.2d at 1022.
Further, the Majority Opinion acknowledges that “[njeither lack of intellect, learning, nor even moral courage, in prosecuting attorney, judge, or other elected officers, constitutes a disqualification to act officially.” State ex rel. Williams v. Ellis (1915), 184 Ind. 307, 112 N.E. 98, 103.
The last portion of the Order authorized the special prosecutor to investigate public allegations that the prosecuting attorney has “been influenced in the conduct of his office by political considerations” and authorized such special prosecutor to investigate the allegations and “conduct the prosecution of any criminal charges which may arise therefrom.” What constitutes “political considerations” is not specified and is a term so vague that I need not burden this opinion with numerous possible interpretations. Suffice it to say that when a prosecutor is an interested party or otherwise clearly incapacitated the trial court may appoint a special prosecutor “But this may not be done upon mere suspicion or rumor.” State ex re. Spencer, supra.
In conclusion, Mr. Hanna was a de facto public officer and King lacked standing to collaterally attack his indictment as being initiated and signed by Hanna. However, the procedure utilized in the appointment and the Order appointing the special prosecutor stand as a model of when and how a special prosecutor should not be appointed.
. At the hearing on the motion to dismiss, Prosecutor Kizer testified that the drug cases which the Majority notes came “perilously close (7 to 10 days) to lapsing under Crim.R. 4” were actually assigned to and the responsibility of his then Chief Deputy John C. Dibble whose testimony formed the basis of the trial court’s determination that drug cases were improperly prosecuted by Kizer and, therefore, within the special prosecutor’s jurisdiction. Dibble had been fired by Kizer and thereafter had publicly. advocated the appointment of the special prosecutor and a special grand jury. Dibble’s testimony concerning City of Lafayette Police policies with respect to drug investigations was not relevant. The City administration, not the county prosecutor, fixes the policies of its police department. Because of the ambiguity of the Order and the conflicting testimony at the hearing, the trial court’s conclusion that “drug cases” were within the purview of the Order was based on mere speculation. Kizer apparently acquiesced in the special prosecutor’s appointment so he would not appear to be interfering with an investigation of alleged improprieties in the performance of his duties. The allegations of improper conduct were made by Dibble. There was no direct evidence by Kizer or the appointing Judges specifying the nature of the crimes included in the Order.