The defendants, brothers Greg and Garnet Everroad, were both convicted of Dealing in Cocaine or a Narcotic Drug, a class A felony; Dealing in Marijuana, a class D felony; Dealing in Hashish, a class D felony; and two counts of Dealing in a Schedule I Controlled Substance, a class B felony. The Court of Appeals affirmed in part, reversed in part, and remanded for resentencing. Everroad v. State (1991), Ind. App., 570 N.E.2d 38. While the Court of Appeals discussed eighteen separate issues, we address only the following: (1) denial of discharge for delay; (2) validity of warrant and resulting searches; (3) sufficiency of the evidence.
In a criminal context, the author of the dissent would be the first to recognize that not only is this affidavit deficient but that it is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. See, generally, Everroad v. State (1991), Ind. App., 570 N.E.2d 38 (Sullivan, J. dissenting), superseded in part, (1992), 590 N.E.2d 567, 571 (Affidavit relied upon hearsay without the requisite information establishing credibility, factual basis and corroboration). In short, the dissent's entire analysis overlooks the critical fact that, whatever the evidence in Kroger's possession, that evidence was not offered to the judge in support of the affidavit.
His presence in the home provides the necessary standing to challenge the search. The State, however, cites Everroad v. State (1991), Ind. App., 570 N.E.2d 38, 46, trans. pending, in claiming that Ray cannot assert standing under Minnesota. We see important distinctions between the facts in Everroad and those in the case at bar.
Here, decisions by Indiana’s Supreme Court and Court of Appeals show the statute is not divisible. See Duncan v. State , 274 Ind. 457, 412 N.E.2d 770, 775–76 (1980) ; Everroad v. State , 570 N.E.2d 38, 54 (Ind. Ct. App. 1991), rev’d in part but summarily aff’d in relevant part , 590 N.E.2d 567, 571 (Ind. 1992) ; Martin v. State , 176 Ind.App. 99, 374 N.E.2d 543, 545 (1978). The Indiana Court of Appeals decision in Everroad is particularly instructive.
Courts finding a prima facie due process claim under section 2254 have subjected the delay to the balancing test applied to trial delays announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, e.g., Harris, 15 F.3d at 1558-59; Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990); see also Everroad v. State, 570 N.E.2d 38, 55-56 (Ind.Ct.App. 1991) (Indiana Court of Appeals recognizing that inordinate delay in appeal process may result in due process violation and applying Barker), affirmed in part, vacated in part on other grounds by Everroad v. State, 590 N.E.2d 567 (Ind. 1992). Jackson has failed to demonstrate that he is entitled to relief under Barker.Barker requires that courts facing speedy-trial challenges consider and balance: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's active assertion of the right, and (4) the prejudice the delay has engendered the defendant.
Only one case,Carr, rested its holding solely on the fact that defendant's continuances were requested before a trial date had been set. 790 N.E.2d at 602-06. The first case to hold this was Everroad v. State, 570 N.E.2d 38, 43-44 (Ind.Ct.App. 1991) (finding a delay caused by defendants' motion to continue, which was made "prior to the setting of a trial date, [was] not chargeable to the [defendants]"), reversed on other grounds, 590 N.E.2d 567 (Ind. 1992). Miller was the second case.
[Citation omitted.]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind.App. 1991), superseded on other grounds, 590 N.E.2d 567 (Ind. 1992) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence); Commonwealth v. Richenburg, 401 Mass. 663, 669, 518 N.E.2d 1143 (1988) (failure to perform blood typing analysis permissible ground on which to build defense but does not constitute destruction of potentially exculpatory evidence). The state, in fact, did preserve the evidence that it had in its possession and produced it at trial.
When appellant's naked assertion that he had a key is examined in the context of the record as it actually exists, without elaboration, and considering the lack of other factors pertinent to the standing inquiry as described in Robinson, supra, any claim that appellant had standing is dispelled.See also Everroad v. State, 570 N.E.2d 38, 45-46 ( Ind. App. 1991) (appellants had no standing to challenge seizure of contraband from their mother's house where one only occasionally spent the night and the other was in the process of moving out and stayed there only "off and on.") Moreover, appellant took no precautions to maintain any privacy here, which further detracts from his claim.
Absent a showing of bad faith on the part of the police, the failure to preserve evidence does not constitute a denial of due process of law. Everroad v. State (1991), Ind. App., 570 N.E.2d 38. In the instant case, the first photographic array did not contain appellant's photograph and no witness identified any of the photographs as those of the suspect.
We find no case law to support holding the State responsible for destroyed evidence where the State was not in possession of the evidence. See Glasscock v. State, 576 N.E.2d 600, 602 (Ind.Ct.App.1991) (“Where the police and the prosecution did not possess evidence, the rule requiring reversal of a conviction based upon evidence which was negligently destroyed does not apply.”) disapproved of on other grounds by Abney v. State, 821 N.E.2d 375 (Ind.2005); Everroad v. State, 570 N.E.2d 38, 46–47 (Ind.Ct.App.1991) ( “[T]he Everroads cite no authority which extends this rule to cases involving evidence never possessed by the prosecution or police.”) aff'd in part, vacated in part on other grounds,590 N.E.2d 567 (Ind.1992) and abrogated on other grounds by Cook v. State, 810 N.E.2d 1064 (Ind.2004).