APPEAL FROM HOWARD CIRCUIT COURT, The Honorable R. Alan Brubaker Judge, Cause No. 6683.
Givan, J., Shepard, C.j. and Pivarnik, J., concur. DeBruler, J., Dissents with separate opinion in which Dickson, J., concurs.
A jury trial resulted in appellant's conviction of guilty of Dealing in a Sawed-off Shotgun, a Class D felony; Dealing in Cocaine, a Class A felony; Possession of Cocaine, a Class C felony; Possession of Controlled Substance, Pentazocine, a Class D felony; Maintaining a Common Nuisance, a Class D felony; and Possession of Pentazocine, a Class C felony. Appellant received sentences totalling sixty-five (65) years.
The facts are: Mark Harper, a confidential informant for the Kokomo Police Department, resided with appellant in his apartment in Kokomo. On July 9, 1984, Kokomo Police raided appellant's apartment based upon information furnished by Harper. All persons in the apartment were arrested, including Harper who was arrested because the police department did not want to disclose the fact that he was a confidential informant. The original arrest was made under authority of a warrant issued by a Hamilton County, Ohio Court. Immediately following the arrest, a search warrant was obtained for appellant's apartment. The subsequent search disclosed a sawed-off shotgun, various drugs, and drug paraphernalia.
Appellant claims the trial court erred in prohibiting complete cross-examination of the informant Mark Harper. Appellant's specific complaint is that he was not allowed to thoroughly question Harper concerning his arrest during the July 9 search of appellant's apartment. Appellant attempted to explore the reasons why Harper was not charged as a principal in the commission of the same crimes with which appellant was charged. A search of the record reveals that appellant was in fact allowed to question Harper at length concerning his own criminal record and the fact that he was a paid police informant in the instant case.
It is obvious, from this record, why Harper was not charged as a principal in the July 9 arrest of appellant. It would indeed be highly improper for a police department to infiltrate a criminal operation, receive information from an informant as to that operation, effect arrests based upon the informant's information, and then charge the informant with the crimes he was disclosing to the police. If such were to be the conduct of a police department, it would be extremely difficult to obtain the cooperation of a confidential informant.
The scope of cross-examination is within the sound discretion of the trial court. Williams v. State (1986), Ind., 492 N.E.2d 28. The trial court was well within its discretion in refusing to allow appellant to belabor the point of why Harper was not charged as a principal acting with appellant as a result of the July 9 arrest. In fact, we observe it would have been an abuse of discretion had the Judge allowed such cross-examination.
Appellant claims the trial court erred in permitting the jury, over his objection, to take exhibits, including the Court's Exhibit No. 2 which was a deposition of Mark Harper, into the jury room. At the time of making his objection to the exhibits going to the jury, appellant made no mention of the Court's Exhibit No. 2. We would further observe that when the exhibits were referred to and shown to the jury reference was made to the exhibits of the parties but no reference was made to the Court's Exhibit No. 2 which was the deposition of Harper. An examination of the motion to correct error again shows no reference to Court's Exhibit 2. There is no evidence in this record that Court's Exhibit No. 2 was included in the exhibits that were sent to the jury.
Appellant cites Thomas v. State (1972), 259 Ind. 537, 289 N.E.2d 508 for the proposition that it is proper to send exhibits to the jury room with the exception of depositions. However, in view of the record before us, there is no indication that the Court's Exhibit No. 2 went to the jury. We will not presume error on the part of the trial court in the absence of such a showing. Macon v. State (1966), 248 Ind. 81, 221 N.E.2d 428, cert. denied, 386 U.S. 1038, 87 S.Ct. 1493, 18 L.Ed.2d 603.
Shepard, C.J. and Pivarnik, J., concur.
DeBruler, J., Dissents with separate opinion in which Dickson, J., concurs.