Coates v. State, No. 485

Docket NºNo. 485
Citation534 N.E.2d 1087
Case DateMarch 08, 1989
CourtSupreme Court of Indiana

Page 1087

534 N.E.2d 1087
Jimmy L. COATES, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 485 S 158.
Supreme Court of Indiana.
March 8, 1989.

Page 1089

Ronald C. Byal, Tipton, for appellant.

Linley E. Pearson, Atty. Gen. and Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

In a jury trial defendant Jimmy Coates was convicted of burglary, robbery and rape for which he received concurrent sentences of ten years, five years and fourteen years respectively. We regroup the many issues raised in the defendant's direct appeal as follows: 1) dismissal of additional charge; 2) vindictive prosecution; 3) change of judge; 4) suppression of confession; 5) instruction on voluntariness of confession; 6) instruction on motive; 7) in-court identification; 8) limitation of cross-examination; 9) variance between information and evidence; 10) sufficiency of evidence on robbery; 11) Patterson hearsay evidence; 12) prosecutorial misconduct; 13) newly discovered evidence; 14) improper sentencing; and 15) cumulative effect of errors.

On June 6, 1983, the defendant was arrested and charged with committing rape and robbery against an elderly woman on June 3. The judge scheduled trial for May 1984. In September 1983, the defendant was released on bail. In March of 1984 he filed pretrial motions for change of judge and suppression of his confession. Having reviewed the case, a newly appointed prosecutor filed in April a separate charge of burglary against the defendant, who was again arrested. The new charge and arrest

Page 1090

received extensive media coverage. In May the trial court granted the defendant's motion for a continuance to negate the pretrial publicity. On the first of June, the trial court consolidated the cases and set trial for July. At trial the defendant was convicted on all three charges.

1. Dismissal of Additional Charge

The defendant contends that trial on the burglary charge over one year after his first arrest violated his right to discharge under Criminal Rule 4(C). He asserts that Criminal Rule 4(C) requires the State to bring a defendant to trial within one year on all charges arising from the same incident. He acknowledges that his motion for continuance waived his right to discharge on the rape and robbery charges. In its relevant portion, Criminal Rule 4(C) provides:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion,....

The defendant urges that "criminal charge" should be read to mean all charges stemming from a criminal episode. We disagree. The rule establishes time limits within which the State must bring the defendant to trial as to each specific charge. The State brought the defendant to trial on the burglary charge, within three months of his arrest thereon. The defendant's right to discharge under Criminal Rule 4(C) was not violated.

2. Vindictive Prosecution

The defendant asserts that the prosecutor filed the additional charge against him three weeks before the original trial date to penalize him for exercising bail rights and for filing pre-trial motions for change of judge and suppression of evidence. He claims that the prosecutor sought to have him in jail at the time of trial, to generate pre-trial publicity, and to assure the victim of her safety. The pre-trial publicity, he argues, prejudiced him in that it required him to seek a continuance, which in turn forced him to waive his right to discharge on the initial charges. The defendant also asserts that the instruction on burglary was improper because the charge itself should have been dismissed.

Where the defendant objects to the filing of an additional charge prior to trial, the defendant must show that the decision to add a charge was motivated by a desire to punish the defendant for doing something the law allowed him to do. Cox v. State (1985), Ind., 475 N.E.2d 664. See United States v. Goodwin (1982), 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74. After gaining more evidence of a hired killing, the prosecutor in Cox filed an additional charge of murder for hire against the defendant just a week before trial on a murder charge. 475 N.E.2d at 671. Noting Goodwin, this Court in Cox determined that the defendant was not entitled to a presumption of vindictive motivation and had failed to show its presence. 1

In the present case, the defendant has failed to show any causal relation between his exercising of pre-trial rights and the prosecutor's decision to add the burglary charge. The transcript of the hearing on the motion to dismiss the additional charge reveals that the newly appointed prosecutor took office three months after the defendant posted bail for his first arrest. After reviewing the case, the prosecutor talked to the victim about her return to the state but did not promise her that he would seek an additional charge to ensure her safety. There is nothing to indicate that the prosecutor sought to penalize the defendant for seeking a change of judge or suppression of evidence. See Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (unrealistic to assume that prosecutor will penalize or deter

Page 1091

pretrial motions by filing additional charges). Also, the prosecutor's news release on the defendant's second arrest does not contain evidence of a desire to penalize the defendant for exercising his rights. The trial court correctly denied the motion to dismiss the burglary charge. The giving of a burglary instruction was, therefore, likewise correct.

3. Change of Judge

The defendant contends that the trial court improperly denied his motion for change of judge under Criminal Rule 12. He claims that the following conduct indicates the trial judge's prejudice against him: the judge's sua sponte revocation of bond without a hearing; the publicized comments of the judge on defendant's bond; and the judge's interjections during the direct examination of a witness. The defendant also claims that the revocation of the bond was a denial of due process.

When the original arrest warrant was issued on June 6, 1983, bail was set at $35,000.00. Following the defendant's motion for reduction, the trial court reduced bail to $27,500.00 on June 20, 1983. However, on August 31, 1983, the trial judge sua sponte revoked the defendant's ten percent bail bond authorized under Ind.Code Sec. 35-33-8-3(a)(2) and ordered him rearrested subject to the full bail bond requirements of Ind.Code Sec. 35-33-8-3(a)(1). A surety bond was posted the following day.

In a criminal proceeding a ruling on a motion for change of judge is discretionary. Denton v. State (1986), Ind., 496 N.E.2d 576; Ind.R.Cr.P. 12. On review, the defendant must show a clear abuse of discretion. Denton, 496 N.E.2d 576. To show abuse of discretion, the defendant in the present case tries to establish prejudice on the trial judge's part. "Such clear bias or prejudice only exists where there is an undisputed claim or where the judge has expressed an opinion on the merits of the controversy before him." Wallace v. State (1985), Ind., 486 N.E.2d 445, 456, cert. denied, (1986), 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723. Accord Lasley v. State (1987), Ind., 510 N.E.2d 1340.

The change in bail bond requirement does not demonstrate improper prejudice against the defendant. In a newspaper article submitted in support of the motion for change of judge, the judge was quoted as explaining the revocation of bond and the defendant's release. He went on to outline the purposes and safeguards of bail procedures and their connection to the presumption of innocence. The judge's reported comments were merely informational and do not show any opinion on the merits of the defendant's case.

Furthermore, we are not persuaded by allegations of "court interference and interjection into the direct examination of the victim at trial." The defendant fails to set out the claimed interference and interjection, and fails to present cogent argument explaining his bald assertion of judicial partiality as evidenced thereby. The defendant has failed to show bias or prejudice of the trial judge. We find no abuse of discretion in denying the motion for change of judge.

The defendant's due process claim based on the revocation of bond without a hearing is moot and presents nothing for review. See Wagner v. State (1985), Ind., 474 N.E.2d 476 (denial of petition to be let to bail); Alleyn v. State (1981), Ind., 427 N.E.2d 1095 (denial of appeal bond).

4. Suppression of Confession

The defendant raises several issues relating to his confession and evidence resulting from it. He contends that the initial stop and inquiry were illegal for want of probable cause and that his going to the police station for interrogation was involuntary. The defendant argues that the illegality of the initial stop and a police promise of help in return for cooperation tainted his confession.

On June 3, 1983, the victim was attacked and raped in her home. She described her attacker and his white automobile. A friend of the defendant, David McMannis, questioned by police placed the defendant in the vicinity of the crime near the time of

Page 1092

its occurrence. About six hours after the attack, the police located and stopped the defendant, who was driving a white automobile. After reading the defendant his Miranda rights and questioning him on his whereabouts earlier that morning, the police asked the defendant to go to the police station for more questioning. The defendant drove to the police station. At the station, the defendant heard again his Miranda rights and executed a waiver of them. With the defendant's permission, the police photographed him. The defendant made no...

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48 practice notes
  • Harper v. State, No. 2700
    • United States
    • Court of Special Appeals of Maryland
    • April 28, 2005
    ...i.e., drug and alcohol abuse, were "far different from promises in leniency in the criminal proceeding." Id. See also Coates v. State, 534 N.E.2d 1087 (Ind.1989) (holding that police officer's offer to try to arrange drug or alcohol treatment for the defendant did not render the defendant's......
  • Turner v. Sheriff of Marion County, No. IP97-2013-C-F/D.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2000
    ...in the plaintiffs house, requiring them to withdraw when they realized or should have realized their mistake. Cf. Coates v. State, 534 N.E.2d 1087, 1092 (Ind.1989) (investigatory detentions must last no longer than necessary to accomplish the purpose (but uncertain if based on state constit......
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...knowingly and intelligently waived his rights not to incriminate himself and to have an attorney present. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092, 1093; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. But cf., Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 9......
  • U.S. v. Taylor, No. 10–2715.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 7, 2011
    ...when the person and the robber are in the same physical place—presence cannot be divorced from physical proximity. Coates v. State, 534 N.E.2d 1087, 1096 (Ind.1989). Not surprisingly, the concept of physical proximity has arisen in cases under the Indiana fondling statute at issue here. One......
  • Request a trial to view additional results
48 cases
  • Harper v. State, No. 2700
    • United States
    • Court of Special Appeals of Maryland
    • April 28, 2005
    ...i.e., drug and alcohol abuse, were "far different from promises in leniency in the criminal proceeding." Id. See also Coates v. State, 534 N.E.2d 1087 (Ind.1989) (holding that police officer's offer to try to arrange drug or alcohol treatment for the defendant did not render the defendant's......
  • Turner v. Sheriff of Marion County, No. IP97-2013-C-F/D.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 1, 2000
    ...in the plaintiffs house, requiring them to withdraw when they realized or should have realized their mistake. Cf. Coates v. State, 534 N.E.2d 1087, 1092 (Ind.1989) (investigatory detentions must last no longer than necessary to accomplish the purpose (but uncertain if based on state constit......
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...knowingly and intelligently waived his rights not to incriminate himself and to have an attorney present. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092, 1093; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. But cf., Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 9......
  • U.S. v. Taylor, No. 10–2715.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 7, 2011
    ...when the person and the robber are in the same physical place—presence cannot be divorced from physical proximity. Coates v. State, 534 N.E.2d 1087, 1096 (Ind.1989). Not surprisingly, the concept of physical proximity has arisen in cases under the Indiana fondling statute at issue here. One......
  • Request a trial to view additional results

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