during the State's case in chief the trial court permitted an undisclosed witness to testify as an expert on drug trafficking because the State did not previously recognize that such testimony would be necessary in their case against a defendant charged with a drug offense
How later courts described this case
- during the State's case in chief the trial court permitted an undisclosed witness to testify as an expert on drug trafficking because the State did not previously recognize that such testimony would be necessary in their case against a defendant charged with a drug offense
- evidence of a large quantity of drugs, scales, and a substantial amount of cash seized from an apartment where the defendant had previously sold drugs, was relevant and material to show that the defendant was involved in possessing and dealing in illegal drugs
- “There is neither allegation nor showing that the State’s actions here represented a blatant and deliberate refusal to comply with our discovery rules and it therefore was discretionary with the trial court to permit the testimony of witness Essex.”
Written by the judges who cited it.
The opinion
DeBRULER, Justice,
dissenting and concurring.
I.C. § 85-48-4-1 defining the crime of dealing in a narcotic drug provides:
"A person who:
(1) Knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or
(2) Possesses, with intent to manufacture or deliver, cocaine or a narcotic drug, pure or adulterated, classified in Schedule I or II; commits dealing in cocaine or a narcotic drug, a class B felony.
Appellant was charged under the second paragraph of this statute with possession of cocaine with the intent to deliver it. For some reason undisclosed in the record, the trial court gave the jury its final instruction No. 8 which stated that appellant was charged with knowingly or intentionally delivering cocaine, the offense defined in the first paragraph of this statute. There was no similar instruction given which explained the character of the offense as *1290 initially charged. The verdict form returned showed guilty of dealing, a form consistent with a charge under paragraphs (1) or (2).
This instruction was erroneous in that it presented a charge not made, and the giving of it constituted fundamental error, an error which robbed the proceeding of required fairness. Appellant was not notified through the charge, before trial that he should defend against a charge of knowing or intentional delivery. The conviction itself is now beclouded by the distinct possibility that the jury verdict rests upon the conclusion that appellant "delivered" the drug, contrary to instruction #8, when he involuntarily surrendered the proven cocaine under threat of deadly force.
Accordingly, I would reverse the convietion for dealing in a narcotic drug and remand Count I for a new trial. However, I also vote to affirm the conviction for common nuisance pursuant to Count II.