Jones v. State , 260 Ind. 463 ( 1973 )

Hunter, J.

This is an appeal by John N. M. N. Jones, appellant (defendant below), from a conviction for possession of heroin. On March 4, 1971, appellant was charged by affidavit, and he then waived arraignment and entered a plea of not guilty. Trial by jury commenced on August 23, 1971, and the jury returned a verdict of guilty. Appellant filed a Motion to Correct Errors which was overruled and this appeal followed.

Two issues are presented for review:

1. Whether the State’s exhibits 1, 2 and 3 and testimony thereon were properly admitted into evidence; and

2. Whether the evidence was sufficient to sustain the conviction.

The facts are generally as follows. An officer of the Indianapolis Police Department saw appellant standing on a street corner. The officer approached appellant and identified himself as a police officer. The appellant then broke and ran. The officer pursued appellant, keeping him at all times within his sight. As he was running, appellant threw something to the ground. The officer then caught the appellant, and after a scuffle, subdued him and placed him under arrest. The officer retrieved what had been thrown to the ground which turned out to be a yellow envelope. Inside the envelope were 100 capsules containing a white, powdery substance. The officer then conducted a Marquis Reagent test on the contents of one of the capsules and the test indicated that the substance could possibly be heroin.

The officer initialed the envelope and took it to the police station where he placed it in the narcotic lock box. On October 23, 1970, Sergeant Caine, the only man with a key to the lock box, removed the evidence from the lock box and placed it in the narcotic vault. It requires two keys to open the vault; one of the keys is in the possession of an officer from the property room, and the other is kept by a narcotics officer. On December 28, 1970, Sergeant Caine removed the evidence from the vault and took it to the crime lab. The evidence apparently remained in the lab until January 7, 1971, when Caine, who qualified as an expert in drug identification and testing, conducted several tests on the substance. He then returned the evidence to the vault where it remained until the arresting officer removed it and brought it to court the day of the trial. Based on the tests, Sergeant Caine testified that he was of the opinion that the capsules contained heroin.

Appellant’s major objection to the admission of the exhibits (and objection to Caine’s testimony based on tests conducted on the exhibits) was that a break in the chain of possession of the evidence occurred, making the evidence inadmissible under the doctrine established in Graham v. State (1970), 253 Ind. 525, 255 N. E. 2d 652. Under that doctrine, a foundation must be laid connecting the exhibit with the defendant and showing the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested. The purpose of the rule is to avoid any claim of substitution, tampering or mistake.

Appellant claims that the period from December 28, 1970, when the evidence was taken to the laboratory, and January 7, 1971, when the testing was conducted, constitutes a sufficient break in the chain to make the evidence inadmissible. We do not agree. Sergeant Caine testified that while he was working on the capsules, they were in his exclusive control and possession. The exhibits were at all times within the confines of the police department and the only time they were not under lock and key was while they were in the laboratory.

Certainly difficulties are presented in this instance. 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, we are not faced with a complete and unexplained break in the chain. The only officers who 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. Kolb v. State (1972), 258 Ind. 469, 282 N. E. 2d 541; Rose v. State (1972), 258 Ind. 377, 281 N. E. 2d 486. The only time the exhibits were not under lock and key, they were in the laboratory. It is unlikely that anyone without business in the laboratory would be present and the possibility of tampering seems highly remote. We hold the chain of custody sufficient in the case at bar and we hold the exhibits were properly admissible into evidence.

Appellant also contends the introduction of State’s exhibit No. 3, which was one lone capsule containing a white, powdery substance, was erroneous because it was never connected to defendant or to this crime in any way. The record shows, and the State concedes, that no foundation was laid for the introduction of this exhibit. The reasonable inference would be that it was one of the capsules from the envelope, but such an inference does not relieve the State of its duty to lay a proper foundation for the introduction of the exhibits.

However, the basis for appellant’s objection to State’s Exhibit No. 3 was the same as it was for Nos. 1 and 2; that is: insufficient chain of possession. At no time did he object for the reason that the exhibit was not sufficiently connected to the defendant. He did not even include such an allegation in his Motion to Correct Errors. Where an exhibit is admitted over an accused’s objection, the accused cannot urge different objections for the first time on appeal. Short v. State (1968), 250 Ind. 459, 237 N. E. 2d 258.

Even had appellant objected on the basis of an insufficient connection, he has failed to demonstrate how the admission of the exhibit was prejudicial to his cause. The capsule in question was identical to ninety some other capsules which were properly admitted into evidence. The exhibit could only be considered cumulative.

Appellant’s second contention that the evidence is insufficient to support the conviction is based on the claim that the tests conducted on the substance were not con-elusive enough to establish the presence of heroin beyond a reasonable doubt. The testimony of Sergeant Caine showed that he conducted five preliminary indicator tests on the substance, and that the tests indicated that an opium derivative was present. He then stated that it was his expert opinion that the substance was heroin. At no time during the direct or cross-examination of Caine was he questioned as to the nature or conclusiveness of these tests. Under these circumstances, we are of the opinion that the State established a prima facie showing that heroin was indeed present. Any weakness in the techniques and methods of testing should be established either by cross-examination or through the employment of one’s own expert witness. The appellant followed neither course in this instance. Since the State’s prima facie showing of heroin remained uncontested and uncontradicted, we hold the evidence to be sufficient to establish the presence of heroin. There being no other basis for the claim of inadequate evidence, we hold that the evidence was sufficient to support the conviction.

For all the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

Arterburn, C.J., Prentice, J., concur; Givan, J., concurs with opinion; DeBruler, J., dissents with opinion.