Warthan v. State

GIVAN, Chief Justice,

dissenting.

I respectfully dissent from the majority opinion on this case. The majority has taken the position that the testimony of Officer Middleton that appellant stated to him he had in his possession the LSD ordered by Middleton was not sufficient evidence to establish the charge, in that, there was no independent evidence of the corpus delicti.

The majority opinion treats the statements of the appellant as though they were an extrajudicial confession. There is no question but what the authorities cited by the majority opinion are absolutely correct, in that, the State is required to prove corpus delicti by evidence independent of an extrajudicial confession.

However, in the case at bar we are not dealing with an extrajudicial confession, rather we are dealing with a statement made by the appellant as a part of the res gestae of the crime in question. In Adams v. State, (1974) 262 Ind. 220, 225, 314 N.E.2d 53, 56, in holding that statements made by the perpetrator of a robbery during the robbery were admissible, this Court stated:

“It is entirely proper for a witness who is describing the acts of the perpetrators of the crime to testify as to explanatory words uttered by the perpetrators of the crime which accompany and give character to the transaction. Such testimony is not considered hearsay, but is admitted as part of the res gestae of the alleged crime.”

In Brown v. State, (1981) Ind., 417 N.E.2d 333, this Court stated:

“Furthermore, it is well established that happenings near in time and place which complete the story of the crime are admissible under the theory of res gestae. Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; Tapp v. State, (1980) Ind.App., 406 N.E.2d 296. The victim’s testimony here supported her account that she was in fear for her life and was trying to gain defendant’s trust so that he would release her. There was no error in the admission of this testimony.” Supra at 337.

Appellant argues the evidence of possession of a controlled substance is insufficient to support the verdict of dealing in a controlled substance. This Court has held the *664State may prove the identity of a substance by circumstantial evidence when no drugs or no expert testimony based upon chemical analysis is admitted into evidence. Slettvet v. State, (1972) 258 Ind. 312, 280 N.E.2d 806.

Although unlike Slettvet in that there was no testimony of a user or a person who smelled or observed the drug in the case at bar, we, nevertheless, have an affirmative statement by the appellant to Officer Middleton that the substance he had in a leather carrying case was, in fact, the LSD in the quantity ordered by the officer and packaged in the manner ordered, namely, placed on green paper. As appellant made these representations to the officer, the officer was able to see the paper and recognized it as a type of paper which is used for the transportation of LSD.

At the time these representations by the appellant were made, appellant, his co-defendant Ash and the officer were riding in appellant’s automobile. Before the transaction was completed the engine on the automobile failed. After each of the persons involved attempted to start the car, the officer went to a telephone to call for assistance. During this period of time both appellant and Ash disappeared. Therefore, the transaction was not completed and the officer never obtained the LSD in order to make any laboratory tests. Thus, the only evidence that LSD was, in fact, present in the automobile was the direct representation by the appellant to Officer Middleton, plus the officer’s testimony that the material appeared to be authentic as represented by the appellant. This evidence is sufficient to support the verdict of the jury that appellant was, in fact, dealing in LSD a Schedule 1 Controlled Substance.

In an analogous situation, this Court has held where a defendant perpetrates a felony while claiming to be armed, although the victim does not see the weapon, the proof by the State that the defendant made the allegation that he was carrying a weapon is sufficient to support the verdict of a jury that he, in fact, committed an armed felony. Zollatz v. State, (1980) Ind., 412 N.E.2d 1200; Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978.

I would, therefore, hold that the statements made by the appellant were part of the res gestae of the crime committed and that as such they are admissible to establish the facts stated therein and therefore constitute the circumstantial evidence sufficient to sustain the conviction under the authority of Slettvet, supra.

PIVARNIK, J., concurs in dissent.