McCowan v. State, 64A03–1305–CR–189.

• Citation: 10 N.E.3d 522
• Decision Date: 10 June 2014
• Docket Number: No. 64A03–1305–CR–189.,64A03–1305–CR–189.
• Parties: Dustin E. McCOWAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

10 N.E.3d 522

Dustin E. McCOWAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 64A03–1305–CR–189.

Court of Appeals of Indiana.

April 23, 2014.

Ordered Published June 10, 2014.

Thomas W. Vanes, Merrillville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

After a three-week jury trial, appellant-defendant Dustin E. McCowan was found guilty of Murder,¹ a felony. On appeal, we find that McCowan has waived the challenges that he made in his motion to suppress regarding the admissibility of his cell phone records including the text messages, and the location of the calls that were made because he failed to properly object at trial.

Waiver notwithstanding, we find that under the totality of the circumstances, McCowan's rights to be free from unreasonable search and seizure under Article I, Section 11 of the Indiana Constitution were not violated when the police obtained McCowan's cell phone records. Thus, the records were properly admitted, and any dispute about the accuracy of the location estimates and context of the text messages were for the jury to resolve. We also conclude that the trial court did not err in refusing to give McCowan's tendered instruction on the presumption of innocence and that the trial court properly declined to recuse itself because there was no evidence of improper ex parte communication. Thus, we affirm the judgment of the trial court.

FACTS

McCowan and the victim, Amanda Bach, who lived in Portage, dated off and on before Bach was murdered in September 2011. Several individuals observed that the two fought constantly when they were together and that McCowan was verbally mean and abusive to Bach. Even Bach's parents urged her to “move on” because they described McCowan as “psycho or bipolar.” Tr. p. 289.

Sometime near the end of August 2011, McCowan and Bach ended their relationship after Bach overheard McCowan tell others at a party that he was just “using Amanda” and that he was sleeping with someone else. Id. at 790, 845. After this incident, McCowan and Bach did not speak to each other.

Over the 2011 Labor Day weekend, McCowan's best friend, Brandon Hutchins, returned from college. Hutchins and Bach were also close friends and began dating. McCowan believed that Bach was coming between him and Hutchins. At a bonfire during Labor Day weekend, McCowan sent Bach a text message telling her to never text him again because “you stole my best friend.” Id. at 794. McCowan told Hutchins's sister that he hated Bach because she was ruining his life.

Around this same time, McCowan feared that Bach might be pregnant. He was “freaking out about it for the longest time.” Id. at 1192. McCowan repeatedly said that he could not be a father because it would destroy his life. McCowan also told Hutchins that he “would punch her in the stomach if she was [pregnant] because it would ruin his life.” Id. at 798. Although Bach took a pregnancy test that yielded a negative result, McCowan did not trust the test, continued to talk about it, and still believed that Bach might be pregnant. McCowan's doubts continued for several weeks and lasted until Bach was killed, and one of McCowan's friends was not sure that McCowan ever believed that Bach was not pregnant before she died.

McCowan and Bach exchanged text messages making amends and made plans for Bach to come to McCowan's residence on the night of September 15, 2011. Bach waited for McCowan's parents, who both worked nights, to leave for work and arrived at McCowan's house around 11:00 p.m. Bach told McCowan that she did not want to see him anymore because she had spoken with her father, and he did not want her to be around him.

During that conversation, Bach was using her cell phone, which made McCowan angry, and he grabbed the phone from her. In the process, McCowan hit her in the nose, causing it to bleed. McCowan gave Bach an orange shirt that he had worn earlier in the day to stop the bleeding. In the early morning hours the next day, one of McCowan's neighbors heard three gunshots. At approximately 1:00 a.m., McCowan's next-door neighbor, Linda Phillips, heard voices outside her bedroom window, which faces McCowan's house. Phillips heard a man say, “Amanda, get up. Amanda get up,” about fifteen times. Tr. p. 397. Phillips then “heard a female voice saying, ‘I can't believe this is happening.’ ” Id. at 396. Although Phillips went to her bedroom window and looked out, she could not recognize the male whom she saw because she was not wearing her glasses. However, she noticed that every light in McCowan's residence was on, and she had never seen the house lit up like that. Id. at 398, 404.

At approximately 2:25 a.m., Michael Steege was driving to work. While Steege was driving northbound, he noticed McCowan walking southbound towards him on the road. A short distance up the road, Steege passed Dean's General Store (the Store) in Wheeler and saw Bach's vehicle in the parking lot. The evidence subsequently showed that McCowan took Bach's vehicle to the Store and abandoned it around 2:30 a.m. Her vehicle was not in the parking lot at 1:50 a.m. when newspapers were delivered to the store, but it was there when Steege passed the store around 2:30 a.m.

When the store's owner, Dean Marquart, arrived and saw Bach's vehicle, he contacted the police. The driver's side door of Bach's vehicle was open, the interior dome light was on, and the hazard lights were flashing. The keys were in the ignition, Bach's purse was on the front seat, and its contents appeared undisturbed. However, Bach's cell phone was not in the vehicle. The front driver's side tire of Bach's vehicle was flat and would have been impossible to drive. The evidence showed that the tire had been slashed with a single-edged blade while the vehicle was moving forward.

At approximately 3:00 a.m. on September 16, 2011, the police telephoned Bach's father, explaining that her vehicle had been found at the Store. When Bach's father arrived at the scene, he immediately noticed that the driver's seat was set too far back for Bach to have driven the vehicle. Bach was 5'2? tall and always drove with the seat pulled close to the steering wheel. The seat was also too far back for the 5' 10? officer at the scene to drive it. On the other hand, McCowan is 6'3? tall, and when he drove Bach's vehicle, which he did regularly, he always pushed the seat nearly all the way back.

Bach's father learned that his daughter had been with McCowan the night before and obtained McCowan's telephone number. Officer Joseph Mendez telephoned McCowan. At that time, McCowan stated that Bach had left his house alone around 1:30 a.m. Although McCowan told Officer Mendez that he had been trying to contact Bach and could not reach her, the telephone records show that he only made two calls to her phone that were one minute apart at 4:36 a.m., after Bach went missing. Officer Mendez spoke with McCowan two more times over the next hour and one-half. On each occasion, McCowan repeatedly stated, “I'm scared, I'm scared.” Tr. p. 435. However, Officer Mendez thought that McCowan's tones and emotions seemed “exaggerated.” Id. at 435–36.

McCowan told the police and some friends that Bach was at his house from 11:00 p.m. until approximately 1:30 a.m. The others thought that McCowan's statement was strange because Bach had a 1:00 a.m. curfew, and they knew that she and McCowan nearly always fought.

Once word was out that Bach was missing, a search party was organized near the store for Saturday morning. McCowan did not join the group. Rather, at approximately 1:30 p.m., McCowan left Wheeler to attend a party with some friends at Indiana University in Bloomington. McCowan's friends were surprised that he went because Bach was still missing. Although McCowan stated that Bach's disappearance would ruin his time at I.U., he stated that he would “party in her honor.” Tr. p. 1229, 1255.

Nicholas Prochno lived a few blocks from the Store and was engaged to the mother of one of McCowan's friends and classmates. Prochno knew that Bach was last seen with McCowan. He also was aware that his fiancee had seen some children hiding on the railroad tracks near McCowan's house in the early morning hours in the past.

Prochno noticed the police near his house on Saturday afternoon and told them that he knew Bach was last seen with McCowan. He suggested that they might look near some railroad tracks that ran close to his house. Prochno and some of his other friends were aware that McCowan would hide trash in that area after parties when his parents were not home.

Prochno led the officers to that area and at approximately 4:00 p.m. on September 17, Bach was observed lying on the ground. It was later determined that Bach was shot in the neck from close range, and the bullet lodged beneath the skin at the back of her throat. Bach's body was found approximately 300 yards from McCowan's home where, indeed, he had previously hidden trash. The tracks ran north of McCowan's house and approximately two miles from the Store.

The evidence showed that Bach had been dragged a considerable distance and the position of her body appeared to be “staged” in a manner to suggest that she had been the victim of a sexual assault. Tr. p. 1045, 1753. However, there were no signs of sexual assault and no clear indications that she had been beaten or struck.

The police also found an orange shirt on the railroad tracks. Subsequent DNA testing revealed that it contained Bach's DNA. McCowan was arrested, and it was determined that McCowan wore an orange shirt on Thursday. Following the arrest, McCowan was incarcerated in the Porter County Jail, where he and his cellmate, Charles Wade III, became friends. Wade exchanged telephone calls and letters with various members of McCowan's family. At some point, McCowan admitted to...