Cooley v. State

• Decision Date: 27 June 1997
• Docket Number: No. 18S02-9706-CR-385,18S02-9706-CR-385
• Citation: 682 N.E.2d 1277
• Parties: James E. COOLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1277

682 N.E.2d 1277

James E. COOLEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 18S02-9706-CR-385.

Supreme Court of Indiana.

June 27, 1997.

Raymond A. Brassart, Brassart Law Offices, Muncie, for Appellant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Defendant appealed his conviction for Dealing in Cocaine, a Class A felony ¹ and the Court of Appeals, in an unpublished opinion, affirmed the trial court. We grant transfer and affirm the trial court.

Background

Defendant James Cooley was tried jointly with co-defendant, Gregory Lampkins, on July 10, 1995. ² Both were convicted of Dealing in Cocaine, a Class A felony. Lampkins appealed his conviction to the Court of Appeals, which reversed the trial court. In a separate opinion issued today, we vacate the decision of the Court of Appeals and affirm Lampkins's conviction. Lampkins v. State, 682 N.E.2d 1268 (Ind.1997). Many of defendant's issues on appeal here are similar to those discussed in Lampkins.

Discussion

I

The trial court denied defendant's motion to suppress evidence discovered after police stopped the automobile in which defendant and Lampkins were riding and defendant consented to a search of the vehicle. Defendant contends that the trial court erred in denying his motion to suppress for two reasons: (i) the police did not have reasonable suspicion necessary to make an investigatory stop; and (ii) defendant's consent to a search of his vehicle was invalid because he was not presented first with an opportunity to consult an attorney.

Lampkins raised the first issue in his appeal and we concluded that reasonable suspicion existed to justify a valid investigatory stop; we discuss that issue in detail in that opinion. 682 N.E.2d at 1271. For the same reasons set forth in Lampkins, we hold that the investigatory stop here was valid.

Defendant claims that he should have been offered an opportunity to consult counsel before he consented to a search of his car. ³ Because he was not offered the opportunity to consult counsel, defendant claims, the trial court was obligated to grant his motion to suppress evidence obtained during the search of his car. Defendant cites Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), to support his claim.

In Pirtle, defendant Robert Pirtle was arrested for possession of a stolen car. At the police station, after Pirtle had requested an attorney but before he could consult with that attorney, Pirtle was questioned and consented to a search of his apartment. During the search of his apartment, officers found evidence linking Pirtle to a prior homicide. Pirtle was charged with and convicted of Murder. Pirtle argued on appeal that his consent to the search of his apartment was not validly obtained because he was denied an opportunity to consult counsel before consenting to a search. 263 Ind. at 23, 323 N.E.2d at 637. We agreed with Pirtle and reversed his conviction. In so holding, we stated:

[A] person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent. This right, of course, may be waived, but the burden will be upon the State to show that such waiver is explicit, and, as in Miranda, the State will be required to show that the waiver was not occasioned by the defendant's lack of funds.

263 Ind. at 29, 323 N.E.2d at 640. See also Sims v. State, 274 Ind. 495, 413 N.E.2d 556 (Ind.1980), overruled on other grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind.1995) (a person in police custody must be informed of the right to consult with counsel before consenting to a search).

We recently applied the Pirtle and Sims cases to a case similar to the one at issue here. Jones v. State, 655 N.E.2d 49 (Ind.1995). In Jones, officer Fautz pulled defendant Larry Jones over for a minor traffic violation. Officer Fautz had already received a tip from a confidential informant that Jones was carrying crack cocaine in the gas cap compartment of his car. After officer Fautz pulled Jones over, two other police officers pulled up and exited their cars. Officer Fautz asked Jones if the car belonged to him and Jones replied that it did. He also asked Jones if he would consent to a search of his car and Jones consented. One of the officers then opened Jones's gas cap compartment and found bags of crack cocaine. Jones was later convicted of Dealing in cocaine, a Class A felony.

On appeal, Jones claimed that the cocaine seized from his car was inadmissible at trial because he had not given a valid consent to the search. He argued that under Pirtle, he was entitled to be warned of the right to counsel before being asked to consent to a search. We held that while it was true that under Pirtle and Sims, "a person in custody must be informed of the right to consult with counsel about the possibility of consenting to a search before a valid consent can be given," Jones, 655 N.E.2d at 54, Jones was not in custody when he consented to the search of his automobile and so that the rules enunciated in Pirtle and Sims did not apply. Id. at 56. We stated "[t]he instant case contrasts starkly to Pirtle, in which the defendant was asked for consent to search his home while he was in jail, detained for more than twelve hours, and after his right to counsel had been denied." Id. We also noted that:

the procedure governing the stop obligated Fautz not to detain Jones any longer than necessary, but not to recite his Miranda rights. Ind.Code Ann. § 34-4-32-2 (West 1983). Had Jones refused to give the police permission to search, he would have been given two citations and been free to leave. The police had no right even 'to frisk' the vehicle without Jones' consent, and they would have had no option but to cease detaining him. Thus, we conclude that at the moment Jones was asked for permission to search his car, the prosecutorial process had not yet begun against him and Pirtle and Sims rights had not attached.

Id.

As in Jones, we conclude here that defendant was not yet in custody when he consented to a search of his car and that therefore his consent was valid. This case also contrasts greatly from that of Pirtle, in that Pirtle was in jail and had been detained for many hours before the consent was obtained. Here, defendant was not handcuffed or confined when he was asked to search his car. See Torres v. State, 673 N.E.2d 472, 474 (Ind.1996) (defendant was in custody for purposes of Pirtle requirements when defendant was handcuffed). Defendant here was not in custody at the time he consented to the search of his car and as such was not entitled to be informed of the right to consult with counsel before consenting to the search. The trial court did not commit reversible error when it denied defendant's motion to suppress.

II

Defendant maintains that the trial court erred in denying his motion for a separate trial. We also addressed this issue in Lampkins. Lampkins, 682 N.E.2d at 1272-1273. Lampkins argued on appeal that he was entitled to a separate trial because defendant's and Lampkins's defenses were mutually antagonistic and therefore separate trials were mandated under the authority of Underwood v. State, 535 N.E.2d 507, 514 (Ind.1989) (trial court must grant separate trials where parties' defenses are mutually antagonistic and acceptance of one party's defense precludes acceptance of other party's defense). After considering the defenses actually presented at trial, we conclude in Lampkins that defendant's and Lampkins's defenses were not mutually antagonistic in that defendant never made any claim that Lampkins actually possessed or dealt the drugs. Lampkins, 682 N.E.2d at 1272.

Defendant here raises a slightly different issue. He claims that the trial court should have granted his motion for severance because Lampkins failed to appear at trial. Although not entirely clear, defendant appears to argue that had Lampkins been present at trial, Lampkins's testimony would have provided exculpatory evidence on behalf of defendant. However, to show that defendant was prejudiced such that he was denied a fair trial, defendant must make more than a mere assertion that Lampkins would have provided exculpatory evidence. Huffman v. State, 543 N.E.2d 360, 368 (Ind.1989), overruled on other grounds by Street v. State, 567 N.E.2d 102 (Ind.1991). To determine whether a defendant was deprived of the opportunity to use a codefendant's exculpatory testimony such that the defendant was denied a fair trial, we look at the following: (i) whether the movant showed that the testimony would be exculpatory in effect; (ii) whether the movant showed to the court's satisfaction that the codefendant would testify; and (iii) whether the movant showed the exculpatory nature and significance of the testimony to the movant's defense or the extent of the potential prejudice to the movant if tried without the codefendant's testimony. Id. (citing United States v. Echeles, 352 F.2d 892 (7th Cir.1965) and Johnson v. State, 445 N.E.2d 107 (Ind.1983)).

Here, defendant did not offer any evidence regarding any of the criteria above. In his brief, defendant merely asserts that "when Lampkins did not show up for trial and the State elected to proceed in absentia, the right of Defendant Cooley to call Lampkins as a witness was effectively removed. It is true that no one knows what Lampkins would have said if he testified, but the Defendant was deprived of that right." Appellant's Br. at 21-22. Defendant did not claim that Lampkins's testimony would be exculpatory; did not offer any proof that Lampkins would have testified; and did not explain how he would be prejudiced if tried without Lampkins's testimony. Therefore, we cannot say that the trial court erred in denying defendant's motion for a separate trial.

III

Defend...