Cupe v. State

Decision Date19 June 2014
Docket NumberNo. A14A0289.,A14A0289.
Citation327 Ga.App. 642,760 S.E.2d 647
PartiesCUPE v. The STATE.
CourtGeorgia Court of Appeals


Jennifer Adair Trieshmann, for Appellant.

Peter J. Skandalakis, La Grange, Kevin Thomas McMurry, for Appellee.

PHIPPS, Chief Judge.

Following a jury trial, a Troup County jury found Walter Charles Cupe guilty of robbery and burglary. On appeal from the judgment of conviction and the denial of his motion for new trial, Cupe claims that the trial court erred in (i) denying his motion to suppress; (ii) denying his motion to sever; and (iii) failing to properly charge the jury. For the reasons set forth below, we find no error and affirm.

Viewed in a light most favorable to the jury's verdict,1 the evidence showed that on August 15, 2003, Angel Fowler, who was visiting a mall in LaGrange, stepped outside the back entrance of a store as she was talking on the phone. Shortly thereafter a man, whom Fowler identified as Cupe at trial, came up from behind her and began “pulling on” her pocketbook. Fowler fought back, but Cupe hit her repeatedly and eventually grabbed her pocketbook and ran.

On the evening of Thanksgiving Day, November 27, 2003, Cupe, a regular customer, came into George Joseph's convenience store and gas station in Hogansville to buy cigarettes. Cupe did not have enough money to complete the purchase, but Joseph told his wife to “let him go,” so she gave Cupe the cigarettes. After Cupe left, Joseph came out from behind the counter four times to observe Cupe standing outside the store. It was a rainy day and Cupe's body was wet. The fifth time Joseph checked, he did not see Cupe. Joseph lived next door to the store, and Cupe lived two houses down from Joseph's residence.

Joseph closed the store at 7:00 p.m. and went home. When Joseph opened the door he heard a loud sound from the back of the house, and he went to the kitchen and saw that the deadbolt on the back door was “gone” and that there were leaves and water on the floor. In the bedroom, the bed had been pushed to the side, and a cabinet was open. Missing from the home was, according to Joseph, “$15,000 Indian currency,” an indeterminate amount of U.S. currency, his wallet, a briefcase containing legal documents, a video camera, and jewelry which he valued at over $12,300.

During officers' investigation of the crime, Joseph named Cupe as a possible burglar “because the way [Cupe] was acting.” The day after the burglary, after dusting Joseph's home for prints, the Chief of the Hogansville Police Department and two officers walked down a path which led from Joseph's home to the back of Cupe's house with the intent of performing a “knock and talk.” Parked in Cupe's back yard between where the police were walking and Cupe's back door was a Buick automobile in which an officer saw two brown briefcases and a piece of paper with Joseph's name printed on it. After speaking with Cupe, the Chief informed him that he was going to go and obtain a search warrant for the car and warned him not to approach the vehicle because there was evidence inside. An officer remained at the scene and shortly thereafter placed Cupe under arrest after Cupe grabbed a set of keys and a large garbage bag and then touched the car. After being transported to the police station, Cupe told an officer that he does his “burglaries in the rain because ... police won't come out of their cars and get wet,” and that “if you said I done this burglary; I done this burglary.”

After police obtained a search warrant for Cupe's home and the car, they recovered two briefcases from the car. They contained personal effects of Joseph and his wife. Police also recovered a bag which contained Fowler's checkbook, her gym membership card, her daughter's social security card, and Joseph's identification documents. Police found cash in Cupe's house and returned $6,000 to Joseph, who identified the currency by the bands he used to bundle the money together.

At Cupe's trial, Officer Michael Smith of the Hogansville Police Department testified that on November 28, 2003, after Cupe had been transported to the police station and he was filling out the warrants for the burglary, Cupe told Smith that he “would find out where [Smith] lived and come to [his] house and tie [his] wife to the bed and * * * * her brains out.”

In a three-count indictment, Cupe was charged with the crime of burglary by entering Joseph's home with intent to commit theft, robbery by taking Fowler's purse and other property by the use of force, and terroristic threats by threatening to rape and falsely imprison Officer Smith's wife. Cupe filed pre-trial motions to suppress the evidence seized from Cupe's car and residence and to sever the three counts for purposes of trial. The trial court denied the motions.

Following a trial, the jury found Cupe guilty of burglary and robbery, and the trial court sentenced him to serve 20 years on each count to run concurrently. The jury found Cupe not guilty of terroristic threats. The trial court later denied Cupe's motion for new trial, and Cupe appeals.2

1. Cupe claims that the trial court erred in denying his motion to suppress. We disagree.

In reviewing a trial court's ruling on a motion to suppress, the appellate court must follow three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.3

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts.” 4

Cupe contends that the police officers were not authorized to be on his property when they approached his house without a warrant and saw the two briefcases inside the Buick. Therefore, he argues, the police discovered the incriminating evidence during an illegal search and the evidence seized from the car should have been suppressed. The State responds that the briefcases were in the plain view of officers and were not found by police during a search.

Construed most favorably to support the trial court's findings and judgment, the evidence showed the following. After Joseph identified Cupe as the person he suspected had broken into his house, the Chief decided to go from Joseph's house, where he had been investigating the crime, directly to Cupe's house to talk with Cupe. The Chief decided to walk rather than going back out to the street and taking his car. Cupe's house was “two houses up” from Joseph's house, and the Chief knew of a path that led from Joseph's property to Hutcheson Moody Road, which was adjacent to Cupe's home. Another officer testified that a path ran “right close to” Cupe's back door. The Chief testified that they proceeded from “Mr. [Joseph's] path to Mr. Cupe's path,” and when defense counsel asked on cross-examination if the path was “just the open ground in a back yard,” the Chief responded [i]t's a commonly known path that I have observed the public using in the past.”

The Chief also testified that he had been to Cupe's residence at least four or five times previously and that he always went to the back door. When asked about the last time, prior to this occasion, he had been to Cupe's residence, the Chief testified that he had parked his patrol car in the back yard and gone to the back door. Photographs of Cupe's residence were entered into evidence; the back part of Cupe's property was not enclosed and there were no signs warning a guest against entry.

On this occasion, using a path, the Chief and two officers walked directly from Joseph's house to Cupe's house. It was approximately 7:00 p.m. in the evening, and they used flashlights to illuminate their way. In order to reach Cupe's back door using the route from Joseph's house taken by the police, it was “necessary,” according to the testimony of a defense investigator, to walk past a Buick automobile parked between five and ten feet from Cupe's house. And as they passed the Buick, one of the officers looked into the car's rear door window with the assistance of his flashlight and saw two briefcases. 5 One of the cases was open, and within not “more than a second or two,” the officer saw “some paperwork ... that had the name George Joseph printed in bold black letters on it.” The Chief then obtained a warrant for the search of the car and Cupe's residence.

As a general rule, “a warrant is required to search the curtilage. The yard immediately surrounding one's dwelling is well within the curtilage.” 6 However, the plain view exception to the search warrant requirement recognizes that

[o]bjects within the plain view of an officer who is in a lawful position are subject to seizure and may be introduced into evidence. The plain view rule applies only if (1) the initial intrusion which afforded the plain view was lawful, (2) the discovery of the evidence was inadvertent, and (3) the incriminating nature of the evidence was immediately apparent.7

Here, the Chief and the two officers entered Cupe's property in order to knock on the door and talk with Cupe. “Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated.” 8 Further, “if police utilize normal means of access to and egress from the house for some legitimate purpose, such as to make inquiries of the occupant ..., it is not a Fourth...

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6 cases
  • Nix v. State
    • United States
    • Georgia Court of Appeals
    • February 13, 2020
    ...promote a just determination of guilt or innocence as to each offense. (Citations and punctuation omitted.) Cupe v. State , 327 Ga. App. 642, 647-648 (2), 760 S.E.2d 647 (2014). The charges in this case were not merely joined due to their similar character but were factually connected. The ......
  • Wiggins v. State
    • United States
    • Georgia Court of Appeals
    • June 28, 2018
    ...judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant. Cupe v. State , 327 Ga. App. 642, 644 (1), 760 S.E.2d 647 (2014) (citation and punctuation omitted). To the extent that "the evidence at a suppression hearing is uncontroverted and......
  • Harris v. State
    • United States
    • Georgia Supreme Court
    • March 7, 2016
    ...was readily apparent to Lt. Sears, as he had spent more than seven years working with a drug task force. See Cupe v. State, 327 Ga.App. 642, 646(1), 760 S.E.2d 647 (2014). Nor is there merit to Harris's argument that the Glock pistol box and ammunition should have been suppressed because th......
  • State v. Newsome
    • United States
    • Georgia Court of Appeals
    • October 24, 2019
    ...violate the Fourth Amendment, so long as "police utilize normal means of access to and egress from the house[.]" Cupe v. State , 327 Ga. App. 642, 646, 760 S.E.2d 647 (2014) (citation and punctuation omitted). The rationale underlying the knock and talk exception is that there is no reasona......
  • Request a trial to view additional results

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