Cole v. State

• Decision Date: 06 September 1990
• Docket Number: No. 48S00-8803-CR-285,48S00-8803-CR-285
• Citation: 559 N.E.2d 591
• Parties: John Charles COLE, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 591

559 N.E.2d 591

John Charles COLE, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 48S00-8803-CR-285.

Supreme Court of Indiana.

Sept. 6, 1990.

Marianne Woolbert, Woolbert & Woolbert, Anderson, for appellant.

Linley E. Pearson, Atty. Gen. and Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of four counts of Criminal Confinement, Class B felonies, and Rioting, a Class D felony. The court sentenced appellant to ten (10) years plus ten (10) years for each of the four criminal confinements and two (2) years plus two (2) years for rioting with all sentences to be served consecutively. This is a companion case to Trotter v. State (1990), 559 N.E.2d 585.

The facts are: On February 1, 1985, appellant was an inmate at the Indiana Reformatory in Pendleton, Indiana. At that time, appellant was serving a sentence for attempted robbery. On that day, there were disturbances in the maximum restraining unit involving officers. Afterward, a shakedown was ordered to discover weapons or other contraband material held by the inmates. The inmates showed vocal resentment and plugged their toilets causing them to flood. The officers then proceeded to empty the cells. The procedure followed was to require the inmate to back up to the bars to be handcuffed before the cell door was opened. Four inmates refused to comply with this order. Each was maced in an attempt to force them to comply. Three of the four complied and were removed from their cells. However, one inmate, Lincoln Love, even after being maced twice, refused to comply. It therefore became necessary for the officers to open his cell and forcefully restrain him in order to remove him. Love then was transported to the Captain's office.

Appellant and Christopher Trotter, who was also an inmate, armed themselves with knives and attempted to force entry into the Captain's office. However, they were unsuccessful. Appellant and Trotter then went to another part of the building where they were confronted by Officers Delph and Richardson. They stabbed each of these officers. Officer Widner heard the disturbance and opened the door to investigate and was stabbed by appellant and Trotter. Captain Sands sprayed them with mace; they fled, however, to the infirmary where they stabbed Officer Huston. Soon thereafter, other guards entered the infirmary and confronted appellant and Trotter. Another altercation occurred and Officers Sheets and Melling were stabbed.

Appellant and Trotter then fled into "J" cellblock where they took guards Millstead and Ingalls hostage and forced them to open the cell doors. The inmates forced Millstead, Ingalls, and Counselor Weist into cells. Eventually the hostages were released and the inmates surrendered.

Appellant contends the trial court denied him effective assistance of counsel by transporting him approximately one hundred sixty miles daily and by limiting the time available for personal consultation before and after each day of trial.

The record reveals that on previous occasions appellant filed and was granted motions to transfer him to the Madison County Jail in order to facilitate trial preparations. On March 31, 1987, appellant again requested a transport order which the trial court granted but never complied with. Eventually he filed a motion to show cause which was denied by the trial court. The trial court ordered that appellant be transported to the Madison County Detention Center one half day prior to the trial for attorney consultation and eventually ruled that appellant and his attorney were entitled to one hour consultations prior to trial resuming each day and one hour after trial concluded each day.

Appellant's counsel filed a motion to dismiss claiming he could not adequately represent appellant given so little time to confer prior to and after trial and again objected prior to the jury being sworn. The trial court denied appellant's request and the transportation order remained in effect.

Appellant cites Herring v. New York (1975), 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593, for the proposition that the right to assistance of counsel means that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accordance with the traditions of the adversary fact-finding process guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution.

However, the case at bar is distinguishable from Herring. In Herring, a New York statute conferred upon every judge in a non-jury criminal trial the power to deny counsel any opportunity to make a summation of the evidence before the rendition of the judgment. At the conclusion of the case for the defense, counsel made a motion to dismiss which the trial court denied. Thereafter, defense counsel requested that he be "heard on the facts."

The United States Supreme Court, in deciding this issue, noted that the constitutional provision has not been given a narrow literalistic construction. The Supreme Court concluded that before the determination was made, the defendant had a right to be heard in summation of the evidence from the point of view most favorable to him and that denying him this right denied him the assistance of counsel guaranteed by the Constitution. In the case at bar, the issue centers upon the trial court's order limiting appellant's consultation with his counsel rather than denying counsel the opportunity to make a summation prior to a determination.

Appellant also cites Geders v. United States (1976), 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592. In that case, the Supreme Court granted certiorari to determine whether a trial court's order directing defendant not to consult his attorney during a regular overnight recess called while petitioner was on the stand as a witness and shortly before cross-examination was to begin, deprived him of the assistance of counsel in violation of the Sixth Amendment.

The United States Supreme Court in analyzing this issue noted that although the trial judge sequestered all witnesses for both the prosecution and defense, the petitioner in that case was not simply a witness, he was the defendant. In the Court's analysis of the order, the Court noted that it affected the petitioner in quite a different way from the way it would affect a nonparty witness who has no stake in the outcome of the trial.

The Court held that "an order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." In addition, the Court said, "We need not reach, and we do not deal with, limitations imposed in other circumstances." Id. at 91, 96 S.Ct. at 1337, 47 L.Ed.2d at 601. We would distinguish the case at bar from Geders in that the trial court's order here did not prevent appellant from consulting with counsel. It only limited the time to consult to one hour before and one hour after trial each day.

Of course, counsel and appellant had a full opportunity to consult during the day while the trial was in progress. Appellant also had the opportunity to consult with counsel on the days he was ordered transported to Anderson when the trial was not in session. We cannot say, under the circumstances of this case, that the court's order deprived appellant of effective assistance of counsel. See Lucas v. State (1986), Ind., 499 N.E.2d 1090; Hurley v. State (1983), Ind., 446 N.E.2d 1326.

Appellant claims the trial court erred in limiting his direct examination and cross-examination of Michael Richardson. Appellant contends he should have been allowed to cross-examine Richardson concerning psychological problems which may have arisen due to the disturbance at the reformatory and Richardson's emotional state on that day. The trial court ruled that Richardson's psychological problems went beyond the scope of the direct examination. The court properly ruled that Richardson's psychological condition prior to or during the encounter with Lincoln Love was collateral to the issues in the case at bar.

Appellant takes the position that extensive questioning of Richardson would have established the facts of the beating of Love, the third party appellant was protecting by committing the batteries charged. Again, the trial court correctly ruled that the beating of Love was a collateral matter by which no witness could be impeached.

It is true that, under some circumstances, third parties are entitled to come to the rescue of a person under attack. See Kremer v. State (1987), Ind., 514 N.E.2d 1068; Davis v. State (1983), Ind., 456 N.E.2d 405. As set out above, Lincoln Love had openly defied the officers to the point that it became necessary for them to enter his cell and physically subdue him in order to remove him and conduct a shakedown of the cell.

This certainly did not give appellant and his codefendant any right to intervene. This is especially true when the attempted intervention by appellant and the codefendant came after Lincoln Love had been removed from his cell and taken into the office. It was at that time they attempted to break into the office. When they committed the several stabbings, they were far removed from the presence of Lincoln Love and in no position to intervene in his behalf. The trial court's discretion in ruling on the admissibility of this evidence will not be reversed unless there is a showing that the trial court's discretion was manifestly abused and that the defendant was denied a fair trial. Jackson v. State (1986), Ind., 490 N.E.2d 1115.

Appellan...