ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael Gene Worden Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Randi F. Elfenbaum
Deputy Attorney General
SUPREME COURT OF INDIANA
WILLIE RAY LEE, ) ) Appellant (Defendant Below ), ) ) v. )CAUSE NO. 21S00-9612-CR-00800
SHEPARD, Chief Justice.
A jury found Willie Ray Lee guilty of dealing in cocaine within 1000 feet of a school, a class A felony, Ind. Code Ann. § 35-48-4-1(b)(3)(B) (West Supp. 1997), and also found him to be a habitual offender, Ind. Code Ann. § 35-50-2-8 (West Supp. 1997).
The trial court found aggravating circumstances and sentenced him
to forty-four years, and added thirty years for his status as a
In this direct appeal, Lee raises five issues:
(1) Whether evidence of other crimes was properly admitted under Indiana Rule of Evidence 404(b);
(2) Whether a proper chain of custody was established to support the admission of a baggie of cocaine passed from Lee to an informant to an officer;
(3) Whether the jury was properly instructed on reasonable doubt during the habitual offender proceeding;
(4) Whether Lee's sentence was properly enhanced; and
(5) Whether the trial court properly upheld the State's peremptory strike of the only prospective juror who was a member of Lee's race.
We conclude that the trial court did not err. Accordingly, we affirm.
effort to help himself, Napier offered to assist McQuinley to buy
cocaine "in an undercover capacity." (R. at 191.) McQuinley
brought in Richmond Police Officer Michael Wamsley to work
undercover with Napier.
Later that same day, Wamsley accompanied Napier in Napier's vehicle in an attempt to buy some cocaine. While they were driving around Connersville looking for Lee, whom Napier believed was a drug dealer, Napier presented Wamsley with a piece of crack cocaine which he claimed was sent by Lee as a sample. They subsequently encountered Lee, who instructed them to meet him in the alley behind his residence, which was within 1000 feet of a school. Wamsley contacted McQuinley and State Trooper Ron Shoemaker to maintain surveillance of the encounter.
Napier backed the car into the alley, where two other men were already waiting for Lee. The two men pulled into the alley and parked beside Napier's car, approximately two to three feet away. One of the two men walked up to Lee's car, had a conversation with him, received a plastic baggie, handed Lee money in exchange, and left. Napier then exited his vehicle and stood between the two cars, telling Lee that Wamsley wanted to buy a quarter ounce of crack cocaine. After Lee responded, Napier told Wamsley that Lee had only one gram left. Lee then handed Napier a plastic baggie containing crack cocaine. Napier held the baggie between his thumb and forefinger for approximately five seconds before giving it to
Wamsley, who had exited the vehicle. Wamsley testified that he
never lost sight of the baggie after Lee handed it to Napier.
Wamsley then spoke with Lee about obtaining more. Lee said he was out of crack cocaine, but would return in two to two and a half hours with three or four ounces of powdered cocaine. They arranged a code for Lee to enter into Wamsley's pager when he returned with the drugs, and also agreed on a price. Wamsley then paid Lee $80 for the gram of crack cocaine he had received. Lee was subsequently charged and convicted of dealing in cocaine within 1000 feet of a school.
evidence was irrelevant and improperly prejudiced him by implying
to the jury that he had a propensity to deal in controlled
Our evidentiary rule governing this issue provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Ind.Evidence Rule 404(b).
We review trial court rulings admitting or excluding evidence
under an abuse of discretion standard. Barnes v. State, 634 N.E.2d
46 (Ind. 1994). Rule 404(b) was designed to assure that "the
State, relying upon evidence of uncharged misconduct, may not
punish a person for his character." Wickizer v. State, 626 N.E.2d
795, 797 (Ind. 1993) (citing Lannan v. State, 600 N.E.2d 1334, 1338
(Ind. 1992)). Although evidence of prior uncharged misconduct may
not be admitted for the purpose of proving a defendant's bad
character, it may be admissible for other purposes, such as "proof
of motive, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." Evid.R. 404(b).
The rule does not bar, however, evidence of uncharged criminal
acts that are "intrinsic" to the charged offense. See, e.g.,
United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990); cf.
United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995) ("When
the other crimes or wrongs occurred at different times and under
different circumstances from the offense charged, the deeds are
termed 'extrinsic.'") The evidence in question here was intrinsic
to the charged crime and thus not barred by Rule 404(b).
To establish a proper chain of custody for physical evidence, the State must provide reasonable assurances that an exhibit which has passed through various hands has remained undisturbed. Cliver v. State, 666 N.E.2d 59, 63 (Ind. 1996) (citing Burris v. State, 465 N.E.2d 171, 185 (Ind. 1984), cert. denied, 469 U.S. 1132
(1985)); Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993) (citing
Kennedy v. State, 578 N.E.2d 633 (Ind. 1991), cert. denied, 503
U.S. 921 (1992)). In providing such assurances, the State need not
negate every remote possibility of tampering. Cliver, 666 N.E.2d
at 63 (citing Starks v. State, 517 N.E.2d 46, 53 (Ind. 1987)). It
is sufficient if the State presents evidence which "'strongly
suggests' the exact whereabouts of the evidence at all times."
Bell, 610 N.E.2d at 233. Once the State has presented such
evidence, "[a]ny gaps in the chain of custody would go to the
weight of the evidence and not to the admissibility of the
A proper chain of custody can be established through an officer's identification of the evidence and testimony that he observed the exchange in its entirety with an unobstructed view. Collins v. State, 645 N.E.2d 1089 (Ind. Ct. App. 1995). Here, Officer Wamsley identified the evidence as being like the baggie which Napier handed him and testified that he observed the exchange of cocaine from a distance of five or six feet from Lee and two to three feet from Napier; that he never lost sight of the cocaine from the time Lee handed it to Napier and Napier handed it to him; and that the baggie was only in Napier's possession for five or six seconds before he gave it to Wamsley. Such testimony provides reasonable assurances that the evidence has remained in an undisturbed condition, and suggests the exact whereabouts of the evidence at all times.
Lee has not established that the State laid an inadequate foundation for the admission of Exhibit 1.
The crime of dealing in cocaine within 1000 feet of a school is a class A felony, Ind. Code Ann. § 35-48-4-1(b)(3)(B) (West Supp. 1997). It carries a presumptive thirty-year sentence, which may be enhanced by as many as twenty years due to aggravating
circumstances, Ind. Code Ann. § 35-50-2-4 (West Supp. 1997). In
this case, the trial judge found the following aggravating factors
and enhanced the presumptive sentence by fourteen years: (1) Lee
has a history of criminal and delinquent acts; (2) the crime in the
present case occurred after Lee was arrested and had agreed to
plead guilty to another class A felony in Marion County; (3) the
chances of Lee committing another crime are great; and (4) the
imposition of a reduced or suspended sentence would depreciate the
seriousness of the crime. (R. at 409-10.) Without challenging the
first three, Lee claims that the fourth factor was improperly used
as an aggravator because the trial judge did not consider imposing
less than the presumptive sentence.
We agree that the fourth factor may be used as an aggravator
only when the trial court is considering imposing a sentence of
shorter duration than the presumptive sentence. See Penick v.
State, 659 N.E.2d 484 (Ind. 1995); Widener v. State, 659 N.E.2d 529
(Ind. 1995). However, "[d]espite a trial court's use of an
improper aggravating circumstance to enhance a sentence, this Court
will affirm if the other aggravating circumstances are adequate to
support the sentence imposed." Scheckel v. State, 620 N.E.2d 681,
684 (Ind. 1993) (citing Owens v. State, 544 N.E.2d 1375, 1378 (Ind.
1989)). In the present case, the other three aggravating factors
considered by the trial judge support enhancement of the
A peremptory strike is unconstitutional when it is used to
exclude a potential juror from service solely on the basis of his
or her race or gender. Batson v. Kentucky, 476 U.S. 79 (1986);
Williams v. State, 669 N.E.2d 1372 (Ind. 1996). A criminal
defendant seeking to establish a prima facie case of racial
discrimination must show that "(1) the prosecutor has exercised
peremptory challenges to remove members of a cognizable racial
group from the venire; and (2) the facts and any other relevant
circumstances of the defendant's case raise an inference that the
prosecutor used that practice to exclude venirepersons from the
jury due to their race." Bradley v. State, 649 N.E.2d 100, 105
(Ind. 1995) (footnote ommitted) (citing Batson, 476 U.S. at 96).
Once the defendant has established a prima facie case, "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. . . . If a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995). Although the State must provide a race-neutral reason for the
strike after the defendant has established a prima facie case of
discrimination, the U.S. Supreme Court has emphasized that "the
ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike." Id. at
In this case, the trial judge conducted a hearing after Lee
objected to the State's peremptory strike. The State offered the
following reasons for striking the potential juror: his brother
had been convicted in a drug case and was imprisoned, he had a
lawsuit pending against the federal government which he did not
wish to talk about, he stated that he preferred not to sit in
judgment of others, he expressed concern about possible financial
burden, he indicated that he may have a schedule conflict with the
trial, and he indicated that he or a member of his immediate family
had been a crime victim. (S.R. at 178.) Although it was revealed
later that neither the venireperson nor any member of his family
had been a crime victim, it was also revealed that he had been
represented by the judge in previous litigation.
Lee argues that these reasons were merely pretextual and that the trial court erred in accepting them. However, "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Purkett, 514 U.S. at 768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). The record illustrates that the State provided race-neutral reasons
for the peremptory strike and that the trial court accepted them.
The court's acceptance of these reasons constitutes a factual
determination that the prosecution lacked discriminatory intent.
Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996). As such, we will
not set aside the decision of the trial court on the matter of
discriminatory intent unless it is clearly erroneous. Id. We
cannot conclude that the trial judge, who had the opportunity to
observe this potential juror, was clearly erroneous in accepting
the State's reasons for exercising the peremptory strike.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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