Whitney v. State

Attorney for Appellant

John Pinnow
Greenwood, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Michael McLaughlin
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

JEFFREY WHITNEY,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 49S00-9910-CR-609
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex Murphy, Judge
Cause No. 49G01-9707-CF-115298

ON DIRECT APPEAL

June 28, 2001

SULLIVAN, Justice.

Defendant Jeffery Whitney was tried and convicted of dealing in
cocaine with an amount greater than three grams, a Class A felony. He
argues that the jury was improperly commanded to conclude that a large
amount of cocaine proved his intent to deliver. We find that precedent
supports the jury instruction as given and affirm his convictions and
sentence.

Background

The facts most favorable to verdict show that in 1994, the police
conducted an ongoing investigation of Defendant Jeffrey Whitney for
suspected drug dealing. Defendant resided at 1968 Holloway Street and was
the sole leassor of a house located at 1518 East 34th Street. During
surveillance, officers observed Defendant go to and from the 1518 East 34th
residence with Defendant staying only a few minutes a time. Police
officers obtained search warrants for the residence at 1968 Holloway, the
leased house at 1518 East 34th Street, and Defendant’s vehicle.

On October 18, 1994, police officers executed the search warrant for
the house at 1518 East 34th and inside discovered a Crown Royal bag which
held three plastic bags containing a total of 139 grams of crack cocaine.
The officers also found Defendant’s car parked inside the garage. Forensic
tests identified Defendant’s latent fingerprints on one of the plastic bags
containing the cocaine. A warrant search of the residence of 1968 Holloway
resulted in the discovery of a bundle of cash, pagers, a cell phone,
expensive jewelry, and a ledger containing a list of names and
corresponding pager codes.

The State charged Defendant with Dealing in Cocaine in the amount of
three or more grams[1] (Count I), Possession of Cocaine[2] (Count II), and
with being a Habitual Offender[3] (Count III). On April 21, 1999, a jury
found Defendant guilty on Counts I and II. Defendant later pled guilty to
being a habitual offender. The trial court sentenced Defendant to 60 years
in prison for Count I, which had been enhanced by the habitual offender
determination. On July 6, 1999, the trial court vacated the judgment as to
Count II, finding that it was a lesser-included offense of Count I.
Defendant now appeals his conviction for dealing in cocaine.

Discussion

Defendant’s sole argument on appeal is that the trial court “abused
its discretion in instructing the jury that possession of a large amount of
cocaine is circumstantial evidence of intent to deliver.” Appellant’s Br.
at 9. He requests that his dealing in cocaine conviction be reversed, the
habitual offender determination and sentence be vacated, and a new trial
ordered. See id. at 23.

In reviewing a trial court’s decision to give or refuse a tendered
jury instruction, this Court considers whether the instruction correctly
states the law, is supported by the evidence in the record, and is covered
in substance by other instructions. See Sherwood v. State, 702 N.E.2d 694,
698 (Ind. 1998), reh’g denied; Wright v. State, 690 N.E.2d 1098, 1109 (Ind.
1997), reh’g denied. The trial court has discretion in instructing the
jury, and we will reverse only when the instructions amount to an abuse of
discretion. See Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996),
reh’g denied. “Jury instructions are to be considered as a whole and in
reference to each other; error in a particular instruction will not result
in reversal unless the entire jury charge misleads the jury as to the law
in the case.” Id.

Over Defendant’s objection, the State tendered the following jury
instruction numbered 32A:

The possession of a large amount of cocaine is circumstantial evidence
of intent to deliver. If you find from the facts presented that the
defendant was in possession of an amount of cocaine that is greater
than that needed for his own personal use, you may infer that the
defendant possessed the cocaine with the intent to deliver it to other
persons.

(R. at 162) (emphases added).

Defendant specifically argues that the instruction improperly “posits
that there [is] proof beyond a reasonable doubt on the disputed element of
possession and categorically states that possession of almost 140 grams of
crack cocaine proves the disputed element of intent to deliver.”
Appellant’s Br. at 21. To lend support to his argument, Defendant relies
heavily on our decision in Chandler v. State, 581 N.E.2d 1233 (Ind.
1991).[4] In Chandler, this Court vacated the defendant’s dealing in
cocaine conviction because we found that the jury instruction on this
charge was “misleading and erroneous.” Id. at 1236. The troublesome jury
instruction read in full, “Possession of a large amount of narcotics is
circumstantial evidence of intent to deliver.”[5] Id. We found that
rather than merely instructing the jury to determine whether the defendant
possessed narcotics, the instruction implicitly suggested that the
defendant was in fact in possession. Id. We also found that rather than
merely instructing the jury that it could consider the evidence of
possession of a large quantity of contraband as proof of intent to deliver,
the categorical form of the instruction commanded the jury to do so. Id.
We therefore held that the instruction improperly invaded the jury’s
province.

This same issue arose in Williams v. State, 658 N.E.2d 598 (Ind. Ct.
App. 1995), reh’g denied. There, the defendant referred the court to the
Chandler case when challenging the tendered jury instruction identical to
the one objected to in this case. Id. at 604. In finding that the
instruction did not constitute fundamental error, the Court of Appeals
reasoned, “the two sentences of the instruction taken together do not
command the jury to reach a particular result but rather invite them to
consider certain evidence as proof of a required element.” Id. at 605.

In David v. State, 669 N.E.2d 390, 391-93 (Ind. 1996), reh’g denied,
this Court dealt with a similar jury instruction claimed to be reversible
error. The instruction for dealing in cocaine read as follows:

Possession of a large amount of a controlled substance is
circumstantial evidence of the defendant's intent to deliver. The
greater the amount in possession, the stronger the inference he
intends it for delivery and not for personal consumption.

Id. at 391.

Similar to the instructions in Chandler, Williams, and the present
case, the David instruction contains the defective sentence that possession
of a large amount of narcotics is circumstantial evidence of intent to
deliver, see Chandler, 581 N.E.2d at 1236; Williams, 658 N.E.2d at 604; (R.
at 162), and thus standing alone the sentence improperly commands the jury
to make such a finding. However, in David, we further found that the
second sentence “removes any categorical finding of intent which may have
been posited by the first sentence. Rather, it allows the jury to
determine if the defendant had possession of enough heroin in order to
infer intent to deliver.” David, 669 N.E.2d at 393. We therefore found no
reversible error in the jury instruction.

Likewise, the instruction in this case (and Williams) provides
additional guidance for determining proof of possession and the intent to
deliver: “If you find from the facts presented that the defendant was in
possession of an amount of cocaine that is greater than that needed for his
own personal use, you may infer that the defendant possessed the cocaine
with the intent to deliver it to other persons.” (R. at 162) (emphases
added).

We are persuaded by the analysis in Williams and are guided by David
to find that the second sentence of the instruction offsets the error
identified in Chandler. The additional phrase—you may infer that the
defendant possessed the cocaine with the intent to deliver— calls on the
jury to perform its traditional role as the trier of fact first to
determine if Defendant actually possessed cocaine, and then to determine if
the almost 140 grams of cocaine proves beyond a reasonable doubt the intent
to deliver. Put another way, the second sentence of the instruction saved
the jury from operating under the incorrect proposition that evidence
showing possession of a large amount of cocaine invariably proves the
intent to deliver. See David v. State, 669 N.E.2d 390 (Ind. 1996); Morgan
v. State, 675 N.E.2d 1067, 1071 (Ind. 1996).

In short, the first sentence of the instruction was highly problematic
(and for that reason should not be used). But we find that the second
sentence sufficiently recognized the authority of the jury to make its own
determination of whether Defendant possessed a large amount of cocaine and
had the requisite intent to deliver it. We therefore conclude that
Defendant is entitled to no relief.

Conclusion

We affirm the trial court’s judgment.

SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., dissents without opinion.

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[1] Ind. Code § 35-48-4-1 (1993).

[2] Id. § 35-48-4-6.

[3] Id. § 35-50-2-8.
[4] In Chandler, as an officer pursued the defendant on foot, he saw
the defendant throw a purple Crown Royal bag in the front yard of a
residence and drop a plastic bag on the ground. 581 N.E.2d at 1235. The
police officers searched the defendant and discovered cash, an address
book, a business card, and a beeper. Id. 1236. The police officers then
recovered the Crown Royal bag containing what was later identified as
cocaine and also recovered the plastic bag containing what was later
determined to be marijuana. Id. Similar to Defendant’s case, the
defendant in Chandler was charged and convicted of dealing in cocaine and
possession of cocaine. Id. at 1235.

[5] As we recognized in Chandler, this single sentence jury
instruction was directly derived from Montego v. State, 517 N.E.2d 74, 76
(Ind. 1987). Chandler, 581 N.E.2d at 1236.