Jones v. State

• Decision Date: 29 August 1995
• Docket Number: No. 71S00-9402-CR-156,71S00-9402-CR-156
• Parties: Larry C. JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 49

655 N.E.2d 49

Larry C. JONES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 71S00-9402-CR-156.

Supreme Court of Indiana.

Aug. 29, 1995.

Michael A. Dvorak, South Bend, for appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for appellee.

SHEPARD, Chief Justice.

Larry Jones was convicted of possessing 3.04 grams of cocaine with intent to deliver, a class A felony, Ind.Code Ann. § 35-48-4-1 (West Supp.1994), and sentenced to forty-five years in prison, with fifteen years suspended. The court enhanced this sentence by thirty years because Jones also was found to be an habitual offender, Ind.Code Ann. § 35-50-2-8 (West Supp.1994).

Jones presents four issues in this direct appeal:

1. Whether the trial court erred by admitting into evidence cocaine seized during a warrantless search of Jones' car after he gave consent to search, but before he was given Pirtle warnings;

2. Whether the court erred when it admitted Jones' taped confession;

3. Whether Jones' due process rights were violated when the court excluded as hearsay a statement allegedly made by an absent defense witness; and

4. Whether Jones was denied due process by the manner in which the trial judge advised that witness of his privilege against self-incrimination.

Facts

On March 20, 1992, Sergeant Paul Hammons of South Bend's Neighborhood Enforcement Service Team (N.E.S.T.) received a tip from a confidential informant that Larry Jones, a suspected drug dealer, was carrying crack cocaine in the gas cap compartment of his car. A second confidential informant had provided similar information earlier in the day.

Within one hour, a N.E.S.T. officer identified Jones' car outside of "My Brother's Place," a South Bend club. After Jones left the club and drove away, officers in three unmarked police cars and one marked car followed him. Aware that a police car was following, Jones stopped to allow it to pass. He was unaware that another police car was also following and resumed driving. A few minutes later, Jones stopped in the middle of the street to let a passenger depart.

Captain Fautz was directly behind Jones' car at this time. He turned on his police lights and spotlight and stopped Jones to cite him for obstructing traffic. Fautz asked to see Jones' license and registration. Jones gave Fautz his license, but did not have the registration. Fautz then asked Jones to exit his auto and to stand between it and the police car so that he could ask him questions in better light. As Jones did so, Corporal Walters parked in front of Jones' car, partially blocking it, and Sergeant Hammons pulled up behind Fautz' car. Both officers exited their cars; Hammons stood about four or five feet behind Fautz on the driver's side and Walters stood in front of Jones' car on the passenger's side. Fautz asked Jones if the car and its contents belonged to him, which Jones answered affirmatively.

Fautz asked Jones if he could search Jones' car and Jones consented. Fautz told Jones that he did not have to let him search, "that he had the right to refuse," but Jones reaffirmed, saying, "Go ahead." Fautz then obtained a "permit to search form" from his car, walked back to where Jones was standing, gave him a copy, and began to read it aloud to him. As he did so, Hammons opened the gas cap compartment on the left rear of Jones' car. He saw what he recognized to be baggies of crack cocaine. Two more N.E.S.T. officers then arrived.

Fautz completed reading the first part of the form, which contained the Miranda rights, and asked Jones if he understood it. Jones replied that he did, and Fautz read the second portion, which covered vehicle searches. When Fautz completed this portion, Jones announced that he did not want his car to be searched. Just as Fautz turned toward Hammons to tell him that Jones withdrew his permission to search, Hammons approached and said, "It's too late, I've already found it." Fautz then seized the cocaine baggies, took Jones into custody, and had him transported to the police station.

At the station, Fautz again Mirandized Jones. Jones acknowledged that he understood his rights and told Fautz that he "wanted to work," i.e., to act as an informant. With the prosecutor's consent, narcotics officers agreed not to file charges against Jones in exchange for his work as an informant. The only conditions the officers and prosecutor placed on the agreement were that Jones must call them by 4 p.m. the next day and must produce useful information within three days. Jones accepted the offer.

Fautz asked Jones if he would give a taped statement before he left the station, and Jones agreed. Fautz read Miranda warnings to Jones for the third time, and again Jones confirmed that he understood. Jones next confessed to possessing the cocaine and preparing it for sale as crack; he named some cocaine suppliers in South Bend whom he knew. Shortly thereafter, the police cited Jones for his traffic and registration infractions and released him.

Jones neither called the narcotics division by 4 p.m. the next afternoon nor provided any worthwhile information. As a result, he was charged with possession with intent to distribute, felony possession, and being an habitual offender.

On the first day of trial Jones announced his intention to call only one witness, Myron Wilder, explaining that Wilder would testify that he was paid by someone to plant the cocaine in Jones' car. Judge Frese asked the prosecutor if the State was giving Wilder immunity for his testimony, and she responded that none would be given. The judge then swore Wilder and warned him of the penalties for perjury, his right against self-incrimination, and his right to the assistance of counsel. Wilder stated that he wanted to speak to an attorney. Judge Frese ordered Wilder to remain near the courtroom and summoned a public defender. A few minutes later, Wilder told Judge Frese he had changed his mind about wanting an attorney, but the judge was not convinced that Wilder understood his rights. The Judge repeated his order that Wilder remain near the courtroom. Nevertheless, Wilder left the courthouse, and he remained incommunicado until the three-day trial ended, notwithstanding the issuance of a bench warrant.

Upon learning of Wilder's disappearance, Jones' lawyer moved to withdraw from his client's representation so that he could testify about inculpatory statements Wilder uttered that morning. Judge Frese denied the motion and proceeded with the trial. Jones neither testified nor put on any evidence in defense. ¹

I. Admissibility of the Narcotics

Jones contends that the cocaine seized after the search of his car should have been suppressed because he did not give a valid consent to search. He says he was in custody at the moment the officers asked for his consent and thus was entitled to be warned of his right to consult counsel before deciding whether to consent. He further argues that his consent was not voluntary.

The Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution provide "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures...." U.S. CONST, amend. IV; IND. CONST., art. 1 § 11. Created to protect one's right to privacy, this protection against unreasonable, State-sponsored searches and seizures is "a principal mode of discouraging lawless police conduct." Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). Consequently, evidence obtained through an unreasonable search and seizure is not admissible. Callender v. State (1923), 193 Ind. 91, 138 N.E. 817.

The warrant requirement commands that an agent of the government obtain a search warrant from a neutral, detached magistrate prior to undertaking a search of either a person or private property, except under special circumstances fitting within "certain carefully drawn and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514-15, 19 L.Ed.2d 576 (1967); Murrell v. State, (1981), Ind., 421 N.E.2d 638. One such circumstance occurs when consent is given to the search. The theory underlying this rule is that when an individual gives permission to a search of either his person or property, governmental intrusion thereon is presumably not unreasonable. Consent must be freely and voluntarily given, and not the result of duress or coercion, express or implied, to be effective. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (to sustain consent for search given by person not in custody, government need show only that consent was voluntary in fact).

Indiana law on consent given while in custody derives from Pirtle v. State, (1975), 263 Ind. 16, 323 N.E.2d 634. Pirtle was in police custody due to an arrest for possession of a stolen automobile. Id. at 21, 323 N.E.2d at 636. The police read Miranda rights to him in the squad car and again at the police station. Id. at 22, 323 N.E.2d at 637. Pirtle did not waive his rights either time and requested to speak to an attorney when questioned at the station. Though counsel was not provided, approximately twelve hours later two other officers questioned Pirtle again. One asked for permission to search his apartment, which Pirtle authorized. The police searched the apartment and discovered witnesses and direct evidence linking Pirtle to a homicide. Id.

Pirtle challenged admission of that evidence, and we held that "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." Id. at 28, 323 N.E.2d at 640 (emphasis added). We noted the U.S. Supreme Court's observation in Miranda that "the atmosphere of in-custody interrogation was inherently coercive." Id. at 22, 323 N.E.2d at 637 (quoting Miranda...