Bellamy v. State

Givan, J.

Appellant was charged by two separate affidavits, one for dispensing of heroin in violation of the 1935 *255Narcotics Act and the other for possession of heroin in violation of said Act. The cases were consolidated for trial before the court without a jury. There was a finding of guilty as charged in both cases. Appellant was sentenced to the Indiana State Prison for not less than five years nor more than 20 years on the charge of dispensing and for not less than two years nor more than 10 years on the charge of possession.

The record reveals the following:

At approximately 5:00 P.M. on May 12, 1971, appellant and Robert Swanigan were observed by Indianapolis Detective Sgt. Mukes in a 1965 gray Cadillac which Sgt. Mukes had been seeking. Sgt. Mukes was accompanied by Officers Crawford and Coombs. When they observed appellant in the Cadillac, they entered the alley where he was parked. Headed in the opposite direction, they stopped beside the car. Both Officers Crawford and Coombs displayed their identification to the appellant; however, the appellant backed his car out of the alley, closely followed by Sgt. Mukes, who was blowing his horn and motioning for the appellant to stop. Appellant backed his car from the alley into Camp Street and drove off at a high rate of speed. Sgt. Mukes followed in pursuit. When appellant got to Ninth Street and Camp, he stopped and Mr. Swanigan got out. As Swanigan was getting out of the car, Sgt. Mukes observed appellant hand Swanigan a brown envelope. The appellant drove off. Sgt. Mukes stopped and both Officer Crawford and Officer Coombs got out of the car to apprehend Swanigan. Sgt. Mukes continued in his pursuit of the appellant, who failed to stop for several preferential streets. At that time Sgt. Mukes radioed for assistance. Appellant was finally stopped by two patrol cars answering Sgt. Mukes’ call for assistance. Meanwhile Officers Crawford and Coombs pursued Swanigan on foot and observed him throw the brown envelope, which he had received from the appellant, to the ground.

*256Officer Crawford recovered the envelope, and the officers performed two separate field tests on the contents of the envelope, each of which disclosed the contents to be heroin.

After these tests were made, the envelope and its contents were taken to the police property room, where it was placed in a lock box. It was later removed from the lock box and placed in the narcotic vault, after which it was taken to the laboratory and again tested, the test revealing the contents to be heroin.

Appellant first argues the trial court erred in admitting the envelope and its contents into evidence, challenging the sufficiency of the chain of custody. There does appear to be some confusion in the testimony of the officers as to the exact chain of possession from the time the envelope and its contents entered the property room until they arrived at the court room. However, we point out that if there was error in the failure to maintain a chain of possession, this error was harmless in that the officers did perform tests on the contents of the envelope at the scene at the time of the arrest of the appellant. Both of these tests revealed the contents to be heroin. This alone was sufficient evidence to support the court’s finding that the appellant was in possession of and was dispensing heroin. There was no objection by the appellant to the testimony of the officers concerning the field tests. The police laboratory test which was later performed which might possibly have been affected by a break in the chain of possession was merely cumulative evidence that the content of the envelope was heroin. See Rector v. State (1971), 256 Ind. 634, 271 N. E. 2d 452, 26 Ind. Dec. 335.

Appellant next argues that the evidence is insufficient in that it is based solely upon evidence which is contrary to the laws of nature. It is his contention that the police officers’ testimony is unreliable because at the time they claimed to have seen the appellant hand the brown envelope to Swanigan they were at a distance of at least 25 *257feet and could not possibly have seen inside appellant’s automobile. We do not agree with the appellant that such an observation is so impossible as to be inadmissible. At the point in time of the observation, the officers’ interest in the appellant was by no means casual. The trier of fact was justified in believing from the evidence of the case that the officers were keenly intent on observing the conduct of the appellant and Swanigan. We certainly cannot say that it was impossible for the officers to have seen the transfer of the envelope from appellant to Swanigan. It was their testimony that they did see it. This Court will not weigh such testimony nor will we determine the credibility of the police officers who testified in the presence of the trial court. Coleman v. State (1971), 257 Ind. 489, 275 N. E. 2d 786, 28 Ind. Dec. 37.

Appellant also contends there was no evidence of probative value establishing that he was in possession or control of the package of heroin. With this we disagree. Although Swanigan testified at the trial that he was the one who possessed the heroin and appellant did not give it to him, it was within the province of the trial court to weigh Swanigan’s testimony with that of the police officers and make a determination thereon. Black v. State (1971), 256 Ind. 487, 269 N. E. 2d 870, 25 Ind. Dec. 637.

The trial court is affirmed.

Arterburn, C.J., and Prentice, J., concur; Hunter, J., concurs in result; DeBruler, J., dissents with opinion.