Cockrell v. State

• Decision Date: 12 March 2001
• Docket Number: No. 29A02-9911-CR-783.,29A02-9911-CR-783.
• Citation: 743 N.E.2d 799
• Parties: Gary COCKRELL, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

743 N.E.2d 799

Gary COCKRELL, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 29A02-9911-CR-783.

Court of Appeals of Indiana.

March 12, 2001.

Jane Ruemmele, Laudig George Rutherford & Sipes, Peter Nugent, Nugent, Arnett & Oakes, Indianapolis, IN, Attorneys for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant, Gary Cockrell, challenges his convictions for Conspiracy to Deal in Cocaine,¹ a Class A felony, Dealing in Cocaine within one thousand feet of a public park or school,² a Class A felony, and Dealing in Cocaine with an aggregate weight of more than three grams,³ a Class A felony. Upon appeal, Cockrell presents seven issues, which we consolidate and restate as whether the evidence was sufficient to support the convictions.⁴ We affirm in part, reverse in part, and remand with instructions.

The facts most favorable to the jury verdict reveal that on February 3, 1998, Hamilton County Detective Sean Brady arranged a controlled purchase of cocaine from Frederick Vogg by a confidential police informant. The confidential informant entered Vogg's trailer and gave Vogg money to purchase cocaine. Vogg gave the confidential informant a pager and told him to leave the trailer. Soon thereafter, Josh Dawson arrived at the trailer. Dawson then drove to the garage of Cockrell's apartment building and bought cocaine from Cockrell. After Dawson returned to the trailer, Vogg paged the confidential informant to return. Vogg then delivered the cocaine to the confidential informant. After Vogg told the confidential informant that Cockrell was his source for the cocaine, the police expanded the investigation to include Cockrell.

The next day, the confidential informant, now accompanied by undercover Officer David Kimm, went to Vogg's trailer to purchase cocaine. After giving Vogg the purchase money, Officer Kimm and the confidential informant were given a pager and told to leave the trailer. Dawson soon arrived at Vogg's, took the money, drove to the apartment building where Cockrell lived, and bought cocaine from Cockrell. Dawson then returned to meet with Vogg and gave him the cocaine. Officer Kimm was then paged to return to Vogg's trailer, where the cocaine was delivered to him.

On February 11, 1998, the police once again arranged a controlled purchase of cocaine from Vogg. Officer Kimm went to Vogg's trailer alone and gave Vogg money to purchase cocaine. Officer Kimm remained in the trailer as Vogg met with Dawson near the office of the trailer park. Dawson again went to the parking lot of the apartment building where Cockrell lived and bought the cocaine from Cockrell. Dawson then delivered the cocaine to Vogg, who gave it to Officer Kimm.

The substance recovered from each of the three controlled purchases was tested and identified as cocaine. Cockrell was arrested and charged with four offenses. Count I of the information charged Cockrell with conspiring to deal in cocaine between February 3, 1998, and February 11, 1998. Counts II and III charged dealing in cocaine within one thousand feet of a public park or school on February 3, 1998, and February 4, 1998. Count IV charged dealing in cocaine with an aggregate weight of more than three grams on February 11, 1998.

During a jury trial, Cockrell objected to the admission of various out-of-court statements made by Vogg on the grounds that the statements were hearsay. The trial court overruled the objections and allowed Vogg's statements into evidence. Cockrell also objected to the admission of the cocaine sold on February 11, 1998, claiming that a chain of custody had not been established. The trial court overruled this objection and allowed the cocaine into evidence. The jury convicted Cockrell on Count I, Count III, and Count IV. Cockrell was acquitted on Count II. Cockrell was sentenced to a total of eighty years incarceration.

I Sufficiency of Evidence on Count I

Cockrell first claims that the evidence was insufficient to support his conviction of conspiracy to deal in cocaine. Upon review of claims of insufficient evidence, we consider only the evidence supporting the verdict and any reasonable inferences to be drawn therefrom. VanMatre v. State (1999) Ind.App., 714 N.E.2d 655, 657. We will not reweigh the evidence or judge the credibility of witnesses. Id. at 657-58. We will affirm a conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have concluded that the defendant was guilty beyond a reasonable doubt of the crime charged. Id. at 658. When a conviction is reversed due to insufficient evidence, double jeopardy precludes retrial of the overturned conviction. Id.

To convict Cockrell of conspiracy to deal in cocaine, the State had to prove that Cockrell, with the intent to commit dealing in cocaine, agreed with another person to commit that felony, and that either Cockrell or the person with whom he agreed performed an overt act in furtherance of the agreement. I.C. XX-XX-X-X (Burns Code Ed. Repl.1998). The information alleged that Cockrell, "with the intent to commit the felony of Dealing in Cocaine... did agree with Frederick Vogg, Jr. and/or Joshua Dawson, and/or a confidential informant and/or David Kimm to commit the felony of Dealing in Cocaine." Record at 16. The information further alleged that "Frederick Vogg, Jr. did perform an overt act in furtherance of the agreement, by providing a location where cocaine could be delivered."⁵Id. We note that Cockrell does not challenge that the evidence shows that Vogg committed an overt act in providing a location for the delivery of cocaine. Thus, pursuant to I.C. XX-XX-X-X, the State had to prove that Cockrell agreed to deal in cocaine with Vogg, the person alleged to have committed the overt act.⁶ Cockrell claims that the trial court improperly admitted hearsay evidence at trial, and without this evidence, there was insufficient evidence indicating that he agreed with Vogg to deal in cocaine. Therefore, we must first determine whether the evidence at issue was properly admitted.

At trial, various witnesses testified concerning statements made by Vogg. Cockrell consistently objected to these statements, claiming they were inadmissible hearsay. Cockrell claims that the trial court erred in admitting these out-of-court statements. Decisions regarding the admissibility of evidence are within the trial court's sound discretion. Clark v. State (2000) Ind.App., 728 N.E.2d 880, 885, trans. denied. Upon appeal, we will not reverse the trial court's decision absent an abuse of that discretion. Id. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind.Evidence Rule 801(c). Hearsay that does not fall within one of the exceptions to the hearsay rule is inadmissible. Houser v. State (1996) Ind.App., 661 N.E.2d 1213, 1219, trans. denied; Ind.Evidence Rule 802.

The State insists that the statements in question were not hearsay because "[a] statement is not hearsay if ... the statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Ind.Evidence Rule 801(d)(2)(E). For a statement to be admissible under this rule, the State must demonstrate both that a conspiracy existed between the declarant and the party against whom the statement is offered, and that the statement was made during the course of and in furtherance of the conspiracy. Barber v. State (1999) Ind., 715 N.E.2d 848, 852; Wright v. State (1997) Ind., 690 N.E.2d 1098, 1105. There must be independent evidence of a conspiracy, i.e., evidence other than the statement itself. Barber, supra at 852. Our Supreme Court has emphasized that this independent evidence requirement is "a useful safeguard against abusive use of co-conspirator hearsay, and [the Court] will continue to apply it to evidence proposed for admission under Rule 801(d)(2)(E)." Id. (quoting Lott v. State (1997) Ind., 690 N.E.2d 204, 209). The existence of the conspiracy for purposes of Rule 801(d)(2)(E) may be demonstrated by direct or circumstantial evidence. Houser, supra, 661 N.E.2d at 1219; Wright, supra, 690 N.E.2d at 1105.

To prove a conspiracy, the State need not prove the existence of a formal express agreement. Porter v. State (1999) Ind., 715 N.E.2d 868, 870. "It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense." Id. at 871 (quoting Williams v. State (1980) 274 Ind. 94, 96, 409 N.E.2d 571, 573). However, relationship and association with the co-conspirator, standing alone, is insufficient to establish a conspiracy. Porter, supra at 871; Robertson v. State (1952) 231 Ind. 368, 376, 108 N.E.2d 711, 715.

Cockrell claims that the State failed to establish the existence of a conspiracy between Cockrell and Vogg, thereby rendering Vogg's statements inadmissible. Therefore, we must determine whether the independent evidence establishes, by a preponderance, the existence of a conspiracy between Cockrell and Vogg.

The evidence independent of the hearsay reveals that on each occasion, the police, either directly or through a confidential informant, gave Vogg money to purchase cocaine.⁷ Vogg then summoned Dawson, who went to Cockrell's apartment building to meet with Cockrell and buy cocaine. Dawson then returned to Vogg and handed him the cocaine. Vogg then delivered the cocaine to the police or the confidential informant.

In addition to this evidence, the State asked Detective Brady how he became involved in the investigation against Cockrell. Brady replied that on February 3, 1998, "[the] confidential informant, he goes to Mr. Vogg's trailer, he gives Mr. Vogg's [sic] some money, Mr. Vogg's [sic] advi...