McCollum v. State

• Citation: 582 N.E.2d 804
• Decision Date: 12 December 1991
• Docket Number: No. 79S00-9104-CR-296,79S00-9104-CR-296
• Parties: Philip L. McCOLLUM, Appellant (Defendant Below), v. STATE OF Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 804

582 N.E.2d 804

Philip L. McCOLLUM, Appellant (Defendant Below), v. STATE OF Indiana, Appellee (Plaintiff Below).

No. 79S00-9104-CR-296.

Supreme Court of Indiana.

Dec. 12, 1991.

Jill E. Greuling, Edgewater, N.J., for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Philip L. McCollum was convicted of four class A felonies: two counts of conspiracy to commit dealing in cocaine, Ind.Code Secs. 35-48-4-1 (West Supp.1991), 35-41-5-2 (West 1985), and two counts of dealing in cocaine, Ind.Code Sec. 35-48-4-1. He was sentenced to forty years on each count. Each conspiracy count was ordered to run concurrently with each associated dealing count. These two sets were ordered to be served consecutively. In addition, McCollum was found to be an habitual offender and one of the sentences for dealing was enhanced by thirty years. The total was 110 years.

Appellant raises the following issues in this direct appeal:

I. Whether the trial court erred in not allowing a continuance so appellant's private counsel could represent him;

II. Whether counsel's performance was ineffective;

III. Whether a tape-recorded conversation between appellant and a police informant was properly admitted into evidence;

IV. Whether the cocaine purchased from appellant was properly admitted;

V. Whether appellant was denied the right to confront and cross-examine a witness;

VI. Whether the trial court erred by refusing appellant's instruction concerning informant testimony;

VII. Whether the trial court erred by denying a mistrial after a comment on appellant's post-arrest silence;

VIII. Whether reversible error was committed during the habitual portion of the trial;

IX. Whether there was sufficient evidence to sustain the convictions; and

X. Whether the sentence was excessive.

The evidence favorable to the jury's verdict was as follows. In the summer and fall of 1986, Daniel Reynolds was a confidential informant for the Indiana State Police. In exchange for leniency on a drug charge he agreed to work with the police in conducting controlled buys of drugs and providing information about the drug business in the Lafayette area. Controlled buys are drug purchases made by a police informant under strict police supervision and control.

In mid July 1986, Reynolds met with William Kolb and discussed whether Kolb could sell him some cocaine. Kolb said he would check on it and later contacted Reynolds to say he had found a cocaine source. Kolb identified his source as Phillip McCollum.

Kolb contacted McCollum and told him he wanted four ounces of cocaine to sell to someone. Appellant brought four ounces of cocaine to Kolb's house in August 1986. Kolb then contacted Reynolds to inform him that he had the cocaine to sell. Reynolds came over that night, the two discussed the quality and price of the cocaine, and Reynolds sampled it. Kolb told Reynolds that McCollum wanted $2200 per ounce. At Reynolds' request Kolb agreed to talk to appellant about selling it at a lower price. Reynolds did not purchase any cocaine that night because he did not have enough money.

The next day appellant came back to Kolb's house to collect the money from the drug sale. Kolb explained why the sale had not yet taken place, they discussed the price of the cocaine, and then the two went to a nearby convenience store to call Reynolds. That evening, August 20, 1986, Reynolds made a controlled buy of one ounce of cocaine with money supplied by the police. During the sale Kolb again told Reynolds that Phillip McCollum was his supplier.

Reynolds also discussed with Kolb the possibility of buying more cocaine but dealing directly with McCollum. Kolb told appellant about Reynolds' proposal but declined because Reynolds had recently been arrested. Appellant also thought Reynolds was not serious about purchasing large quantities of cocaine since the first sale had been for only one ounce.

After Reynolds purchased the cocaine and left the house, Kolb went to the hotel where McCollum was staying to deliver the money from the sale and the unsold cocaine. No one answered at the hotel room. Later that evening, after Kolb had returned home, appellant came over to collect the money. He had Kolb keep the unsold cocaine until the next day. Officers Hole and Shireman of the Indiana State Police and Special Agent Frank Fabian of the FBI monitored this controlled buy. They watched Kolb and Reynolds and Kolb and McCollum on the way to meetings with each other. They also observed the movements of Kolb and McCollum after the controlled buy.

In late October 1986, Reynolds again attempted to persuade Kolb to set up a cocaine buy directly with appellant. To show Kolb that he was serious, Reynolds went to Kolb's house and showed him $40,000 in cash which had been provided by the FBI. Although Kolb told McCollum about the money, he still refused to meet with Reynolds directly.

About two weeks later on November 8, appellant brought another four ounces of cocaine to Kolb at his house and he also left his van in Kolb's driveway. After appellant left, Kolb called Reynolds and a meeting was arranged for that evening. Reynolds made another controlled buy of the four ounces of cocaine, paying $8800. Kolb told Reynolds the cocaine came from McCollum. Appellant picked the money up from Kolb the next day. Again, all these events were observed by the Indiana State Police and the FBI.

The same procedure was followed for each controlled buy and meeting between Kolb and Reynolds. Reynolds would first meet with the police and be strip searched and a body transmitter would be attached to his person. Reynolds was then provided with cash to make the purchase. While Reynolds and Kolb were together the police were able to monitor their conversations through the transmitting device. After the meeting was over Reynolds would meet the police at a designated spot. He would be strip searched again, the body transmitter would be removed, and he would turn over the drugs purchased and any remaining money.

Kolb and his wife were arrested in late April 1987. In exchange for leniency for himself and his wife, Kolb agreed to cooperate in the continuing investigation of McCollum. Kolb called appellant to try to arrange another drug deal and recorded this conversation with a police recorder. A meeting was set up for noon the next day, April 26, 1987. Surveillance was maintained at the Kolb residence and a tape recorder was placed under the couch in the living room. Appellant was late to the meeting, however, and the tape ran out. Kolb called Agent Fabian who came to Kolb's house to fix it. One or two minutes after Fabian's arrival appellant showed up, so Fabian hid behind a bedroom door. Agent Fabian was able to hear the conversation between appellant and Kolb. McCollum and Kolb discussed arrangements for a cocaine deal, the quality of the cocaine, whether Kolb knew how the ultimate buyer would use the cocaine, and money Kolb owed appellant for previous drug transactions. Appellant said he would come back in a day or two with the cocaine and Kolb indicated that he would be able to have cash for some of it. Police attempted surveillance of this meeting, but appellant never showed up. Kolb also attempted to set up a meeting with appellant but was unable to reach him. Appellant was arrested on April 30, 1987.

The testimony against McCollum was consistent. The witnesses included the participating officers and agents, Reynolds, Kolb, and Kolb's wife.

I. Failure to Grant Continuance

Appellant claims the trial court abused its discretion by failing to grant a continuance so that private counsel could represent him.

From May 25, 1987, until April 12, 1988, appellant was represented by private counsel, Carl J. Sandy. On April 12, Sandy withdrew his appearance and the court ordered appellant to appear on April 26 to report who would represent him. On April 26, 1988, Judge Thayer appointed a "temporary" public defender for McCollum because he had not yet employed private counsel. The trial was set for July 12, 1988. On July 6, McCollum, by his public defender, moved for and received a continuance. The trial was reset for October 11, 1988. Between July and September a series of hearings occurred regarding appellant's bond and a protective order. Appellant was represented at these hearings by his appointed public defender. This lawyer eventually tried the case.

Appellant presents the affidavit of attorney David J. Coleman, who states that on or about October 3, 1988, he contacted Judge Thayer's office and the prosecutor expressing his desire to enter an appearance for McCollum and request a continuance. He says that he decided not to enter an appearance because he was informed by the judge's office that a continuance would not be forthcoming.

Where a defendant is given an opportunity to secure counsel of his own choosing but fails to do so he cannot complain on appeal that he was compelled to go forward with court-appointed counsel. Page v. State (1956), 235 Ind. 628, 137 N.E.2d 405. Appellant had at least five months to hire private counsel but failed to do so until eight days before trial. Moreover, appellant did not claim any particular problems with his public defender, and his public defender was prepared and ready for trial. It was not an abuse of discretion to deny the continuance. See Potter v. State (1983), Ind., 451 N.E.2d 1080.

II. Ineffective Assistance of Counsel

Appellant claims that he was denied effective assistance of counsel. He lists thirteen instances where counsel's assistance allegedly fell below the proper standard.

To prevail on a claim of ineffective assistance of counsel appellant must meet a two-part test. He must show: 1) his counsel's performance fell below an objective standard of reasonableness, and 2) there is a reasonable probability that but for counsel's deficient performance the...