Cox v. State

• Decision Date: 29 June 1981
• Docket Number: No. 2-380A83,2-380A83
• Citation: 422 N.E.2d 357
• Parties: Cletus Coy COX, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 357

422 N.E.2d 357

Cletus Coy COX, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-380A83.

Court of Appeals of Indiana, Fourth District.

June 29, 1981.

John M. Sorensen, Donahue & Sorensen, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant-appellant, Cletus Coy Cox, appeals his conviction of theft, Ind. Code 35-43-4-2, after jury trial. The pertinent portions of the charging information read:

"On or about the 18th day of January, 1979, in Tippecanoe County, State of Indiana, Cletus Coy Cox did knowingly exert unauthorized control over property of Chester Parker (sic), to wit: a Singer Sewing machine and Montgomery Ward Clock, by possessing property without the consent of Chester Parker (sic), with intent to deprive Chester Parker (sic), of the value and use thereof."

During the trial of this cause, one of the prosecution's witnesses, a burglar who allegedly sold the property to Cox, testified on direct examination that while in prison his life was threatened if he testified against Cox. We find such evidence was prejudicial error and we therefore reverse. We further find that on remand Cox is not entitled to a dismissal of the action, although he claims material exculpatory evidence consisting of a tape recording between Cox and a prosecution witness was destroyed by police. ¹

FACTS

Cox does not challenge the sufficiency of the evidence to sustain his conviction, but generally contends the trial court committed prejudicial error in several rulings affecting the content of the evidence. We therefore direct our recitation of the facts to matters pertaining to these alleged errors rather than solely to the evidence supporting Cox's conviction.

On January 5, 1979 James Gordon and James Huddleston, a fifteen year old minor, burglarized the home of Gordon's grandfather, Chester Packer, removing an old Singer sewing machine and a Montgomery Ward wall clock. Gordon and Huddleston then went to the home of Cox and sold him both items for approximately $35 and a case of beer, after, according to their testimony, informing Cox the items were stolen. Cox wrote out a receipt for the items which Huddleston signed using the name "Bob Carter." Cox does not deny he purchased the items in question, but maintains he had no knowledge of their stolen character nor of the true names of Gordon and Huddleston at the time of the sale.

On January 18, 1979 Ken Wyant, Gordon's uncle and Packer's stepson, was wired by the Lafayette police with a concealed transmitter. Wyant went to Cox's home, explained that his nephew Gordon had sold Cox stolen property and requested the return of the sewing machine. Wyant told Cox he was only interested in the return of the sewing machine because it had sentimental value but did not want the clock back. Cox surrendered the machine refusing money Wyant offered and stating he had not known the items were stolen. After Wyant left, Cox moved the wall clock to his mother's house across the street. Upon obtaining a search warrant the police searched the Cox home and recovered the clock after Cox informed them of its location. Cox was arrested and charged with theft.

The conversation between Wyant and Cox had been recorded on tape by the police, who listened to the conversation through a receiver in their patrol car parked down the street from Cox's residence. Due to police radio interference which rendered the recording inaudible, the police did not retain the tape.

During the month before Cox's arrest Gordon and Huddleston had committed several other burglaries in the area and testified they had sold many of the stolen items to Cox at his residence. On each occasion Gordon and Huddleston broke into unoccupied homes and businesses, removed various items, allegedly took them to Cox's home, and sold selected items to Cox for either cash, other merchandise, or a combination of both. According to their testimony, they usually notified Cox the items were stolen and indicated the location of the burglarized homes so Cox could dispose of the items in a different locale. Gordon and Huddleston specifically related the burglary of an A-frame house in Cutler, Indiana from which they removed various items including a small motorcycle. Huddleston sold the motorcycle to Cox and then threw it off a bridge into a river, allegedly at Cox's request after Cox had stripped it. They also admitted the theft of various tools from Carter's Block, Inc., a Logansport business establishment.

The testimony of Gordon and Huddleston was partially corroborated by the testimony of two of their burglary victims, Robert Kirpatrick and Lynn Bridge. Kirpatrick testified that several items had been taken from his A-frame home, including a small motorcycle which he identified through photographs admitted into evidence. Several photographs depicted a motorcycle in a muddied condition after its retrieval from beneath a bridge. Gordon's and Huddleston's testimony was also corroborated by Lynn Bridge, who detailed the burglary of her employer's business, Carter's Block, Inc.

On the other hand, Cox testified he had only met Gordon on one prior occasion, in mid-December of 1978, when he purchased some personal property from Gordon. Gordon verified that on this occasion he sold Cox tires which Gordon owned and which were not the fruits of any burglary. The evidence was uncontested that Cox, a resident of Lafayette, is married with two children and makes his livelihood principally by bartering with community residents and working on automobiles. He is also a member of a laborer's union.

Gordon and Huddleston were arrested in mid-January for two burglaries unrelated to the burglary of the Packer residence. Huddleston, a minor, was placed in a boy's home and, at the time of Cox's trial, he was scheduled to appear in court at a future date on the charges stemming from those unrelated burglaries. Gordon had already been sentenced to three years for one of these other break-ins and was serving his sentence at the Indiana Youth Center. Neither Gordon nor Huddleston had been charged at the time of Cox's trial for the burglary of Packer's residence. They testified, however, they had not been promised immunity in exchange for their testimony against Cox.

I. Threats Made Against Gordon

Over Cox's objection on the grounds of relevancy and lack of foundation, the trial court allowed the prosecutor on direct-examination to elicit Gordon's testimony relating threats made against his life if he testified against Cox. The threats were made by unknown persons while Gordon was in prison at the Indiana Youth Center serving his sentence for burglary. Cox argues the proper evidentiary foundation was lacking, since the threats were not shown to have any connection with Cox. The State contends the specific mention of Cox's name in the threat provided a sufficient nexus. Moreover, the State cites Barnes v. State, (1978) 269 Ind. 76, 378 N.E.2d 839 for the general proposition that all evidence relating to threats and affecting the weight and credibility of a witness's testimony is admissible. We cannot agree with the State's contentions and in fact find the improper admission of such highly prejudicial testimony was reversible error in this case since, among other things, the State failed to connect the making of such threats to Cox.

The testimony in dispute was elicited from Gordon, who was incarcerated at the Indiana Youth Center at the time of Cox's trial. On direct examination, the prosecution asked Gordon if he had been subject to threats regarding this case while in prison. Over objection by the defendant, the following testimony was admitted:

"Q Okay. And what were those threats.

A If you testified, don't mind coming back.

Q Do you know the names of the people who told you that?

A No.

Q Okay. Did they did they say anything else?

A If just if I testified, don't mind coming back, cause I wouldn't live long enough to be around long enough to live.

Q Okay. Did they know who you were testifying against.

A Yes.

Q Who did they say? Did they mention a name?

A Coy Cox. Coy Cox.

Q Okay. But, you don't know the names of these people?

A No, they're from Lafayette.

Q What's been your reaction to that?

A Scared.

Q Okay. Have you told us at various times that you weren't going to testify?

A This entered my mind.

Q And you've told us that, haven't you?

A Yes.

Q And what did we say to you?

A Nothing.

Q Did we tell you you had a choice?

A No."

There is no testimony in the record suggesting Cox was responsible for or had knowledge of these threats.

Cox had first sought to exclude Gordon's testimony on the threats through a motion in limine. In response, the trial court ruled: "(E)vidence of possible threats must be connected to the defendant with the exception of witnesses confined in prison from the time of the alleged offense to (the trial date.)" (Emphasis added.) We find no authority supporting such an exception. We can only speculate the trial court might have assumed the jury could evaluate the testimony as only representing some unwritten prison code among inmates which places in physical peril any inmate who acts as a prosecution witness. Viewed in this light the court may have additionally assumed the jury would consider the testimony as going only to the witness's credibility and not the defendant's guilt. We note, however, the jury was not instructed to so narrowly confine its consideration of the threats, and in view of the authorities discussed infra, we believe such an instruction could not have cured the error.

Generally, threats made against a witness by the defendant are in the nature of an attempt to manufacture or suppress evidence and are therefore viewed as an admission of guilt. Keesier v. State, (1900) 154 Ind. 242, 56 N.E. 232. "A threat is said to be at least an attempt...