FRIEDLANDER, Judge.
Tyronne R. Dickerson appeals his convictions for three counts of Dealing in Narcotics,
We affirm.
This case involves two controlled drug buys on January 25 and 28, 2010. In each instance, Dickerson delivered heroin (two small baggies on the first and eight on the second) to the same confidential informant. This confidential informant was a friend whom Dickerson had known since 2008. Audio and video recordings were made of each transaction, and police maintained visual surveillance of the first. During the second transaction, Dickerson removed the drugs from a cigarette box located within the console of the vehicle he drove to the scene.
Immediately following the second transaction, officers moved in to arrest Dickerson, who attempted to flee. Dickerson was found in possession of cash, which included the $100 in buy money, two cell phones, and a cigarette box that contained 3.62 grams of heroin and several pieces of crack cocaine. The heroin was individually packaged in ten baggies.
The State charged Dickerson with three counts of dealing in narcotics, two as class B felonies for the controlled buys (delivery of heroin) and one as a class A felony for the heroin found upon his arrest (possession
Dickerson testified in his own defense. He admitted delivering heroin on both occasions to his friend, the confidential informant, but claimed these were drugs that they had jointly purchased.
The jury found Dickerson guilty as charged. The trial court merged the class D felony conviction for possessing cocaine with the class A felony conviction and imposed an aggregate sentence of twenty-five years in prison on the remaining counts. Dickerson now appeals.
Dickerson acknowledges that he did not object to the limitations placed upon his cross-examination of the confidential informant at trial. Therefore, he attempts to circumvent waiver by alleging fundamental error.
Our Supreme Court has emphasized that the doctrine of fundamental error is only available in egregious circumstances. Brown v. State, 799 N.E.2d 1064 (Ind.2003). "The mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule." Absher v. State, 866 N.E.2d 350, 355 (Ind.Ct. App.2007). Similarly, in order to invoke this doctrine, it is not enough to urge that a constitutional right is implicated. Absher v. State, 866 N.E.2d 350. "[W]hen the issue is raised in terms of fundamental error, a defendant must demonstrate that the [constitutional] error worked to his actual and substantial disadvantage, infecting and tainting the entire trial." Akard v. State, 924 N.E.2d 202, 209 (Ind.Ct.App. 2010), aff'd in relevant part 937 N.E.2d 811 (2010). In other words, the error must be so prejudicial to the rights of the defendant to make a fair trial impossible. Absher v. State, 866 N.E.2d 350.
Here, Dickerson argues that the use of a nameless witness violated his state and federal constitutional right to cross-examine witnesses against him. Citing Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), Dickerson contends that the prohibition against inquiry into the name of a State's witness per se constitutes fundamental error. It does not.
The United States Supreme Court and our Supreme Court have recognized that asking a witness for his name and address is among the legitimate questions for cross-examination. See Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748; Pigg v. State, 603 N.E.2d 154 (Ind.1992). In Smith, the Court stated: "The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself." Smith v. Illinois, 390 U.S. at 131, 88 S.Ct. 748. Recognizing this forceful language, our Supreme Court has held that although a defendant is "presumptively
Further, unlike the defendants in Smith and Pigg, we reiterate that Dickerson did not properly preserve the issue for appeal. As a result, Dickerson must show that allowing the confidential informant to testify anonymously at trial worked to his actual and substantial disadvantage, infecting and tainting the entire trial. Akard v. State, 924 N.E.2d 202. This he has not done.
The record reveals that the identity of the "anonymous witness" was well known to Dickerson. In fact, Dickerson had been friends with the witness, as well as the witness's girlfriend, for some time.
Dickerson has not established that his defense was seriously hindered by the witness
Under the circumstances presented in this case, we conclude that the alleged error was at most harmless and certainly not fundamental.
Judgment affirmed.
DARDEN, J., and VAIDIK, J., concur.
Id.
Dickerson asserts that the State did not offer any fact-specific basis for its request to keep the witness's name anonymous while testifying. We initially observe that the State specifically indicated at the pretrial hearing that the witness had worked with the police department as a confidential informant on "several occasions", this case was his first, and "some or all of those [other] cases are still pending." Transcript at 24. Moreover, as noted above, Dickerson never objected to the limitation place on his cross-examination of the witness. Had he objected, the State and trial court would have been alerted to the need for a more detailed record in this regard. Because the issue was not properly preserved, we make no representation as to the precise showing required to allow anonymous testimony at trial.
Siegfriedt v. Fair, 982 F.2d 14, 17-18 (1st Cir.1992).