Peete v. State

• Decision Date: 09 April 1997
• Docket Number: No. 49A04-9611-CR-475,49A04-9611-CR-475
• Citation: 678 N.E.2d 415
• Parties: Sylvester PEETE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 415

678 N.E.2d 415

Sylvester PEETE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9611-CR-475.

Court of Appeals of Indiana.

April 9, 1997.

Transfer Denied June 10, 1997.

Patricia Caress McMath, Indianapolis, for Appellant-Defendant.

Pamela Carter Attorney General of Indiana and Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Sylvester Peete appeals following his conviction for possession of cocaine as a Class C felony. ¹

We affirm.

ISSUES

Peete presents the following two re-stated issues for our review:

1. Whether the record shows that Peete voluntarily, intelligently and knowingly waived his right to a jury trial.

2. Whether Peete received ineffective assistance of counsel due to his trial counsel's failure to object to the admissibility of the cocaine.

FACTS AND PROCEDURAL HISTORY

On June 30, 1995, Officer William Owensby and Detective Gary Morrolf of the Indianapolis Police Department were on routine patrol in the 4600 block of North College, when they observed a 1982 white Oldsmobile operating without an illuminated license plate. Due to this equipment violation, Officer Owensby stopped the vehicle in the 4600 block of North Guilford Avenue. As Officer Owensby approached the vehicle, the driver of the vehicle, Peete, informed him that he did not have a driver's license on his person. Officer Owensby asked Peete for his name and, Peete verbally identified himself as Eric Peete. Due to previous encounters with Peete, Officer Owensby knew that Peete gave him a false first name. Upon being confronted with this fact by Officer Owensby, Peete admitted that he was Sylvester Peete, and he then told Officer Owensby that there may be an outstanding warrant on him. Indeed, Peete did have an outstanding warrant for driving while suspended, a misdemeanor. Officer Owensby informed Peete that he was under arrest. Accordingly, Peete was removed from the vehicle, searched and handcuffed.

In the interim, Detective Morrolf approached the passenger side of the vehicle to speak to the one front seat passenger and one back seat passenger. Detective Morrolf observed the front seat passenger reach down between his legs. When the passenger and Detective Morrolf made eye contact, the passenger put his hands in his lap. Both passengers were eventually removed from the vehicle and placed under arrest due to outstanding warrants on each of them.

Once all of the occupants of the vehicle were out of the car and handcuffed, Officer Owensby proceeded to inventory search the car. During the course of this inventory search, Officer Owensby located a black 35 mm. film canister under the front passenger seat. Officer Owensby proceeded to open the film canister, and inside, he found 24 cellophane plastic bags containing an off-white chunky substance. The substance was later determined to be crack cocaine, weighing 4.25 grams.

Prior to transporting the suspects, Officer Owensby advised Peete of his Miranda warnings, and Peete subsequently admitted that the cocaine in the film canister belonged to him. (R. 77, 81, 118-19).

On July 3, 1995, Peete was charged by information with possession of cocaine as a Class C felony. Peete signed a written "Waiver Of Trial By Jury " form, waiving his right to a jury trial. Accordingly, he was tried by the court and subsequently found guilty as charged. He now appeals arguing trial court error and ineffective assistance of counsel.

DISCUSSION AND DECISION

I. Waiver of Jury Trial

Peete contends that he did not voluntarily, knowingly and intelligently waive his right to a jury trial. Although Peete concedes that the record contains a signed waiver form, he argues that the trial court did not determine on the record whether he fully understood the rights that he was relinquishing.

The right to a jury trial is guaranteed by article I, section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), reh'g denied; Belazi v. State, 525 N.E.2d 351 (Ind.Ct.App.1988), reh'g denied, trans. denied. The right is further statutorily guaranteed in Indiana. See Ind.Code 35-37-1-2 (provides that all criminal trials be tried by a jury unless there is a joint waiver by the defendant, the prosecutor and the trial judge). The right to a jury trial on a felony charge is absolute. That is to say, absent a valid waiver, the defendant must be tried by a jury. Eldridge v. State, 627 N.E.2d 844, 848 (Ind.Ct.App.1994), trans. denied. A person charged with a felony, as opposed to a person charged with a misdemeanor, need not request a jury trial in order to preserve the right. Id.

Turning to the case before us, the record contains a written "Waiver Of Trial By Jury " form signed by Peete, his attorney and the deputy prosecutor. Furthermore, prior to the commencement of the bench trial, the trial court engaged Peete in the following brief colloquy:

COURT: Wait. Before we go forward here, I just want to double-check something. I do have a waiver of trial by jury. Mr. Peete, you still wish for the Court to go forward and hear this matter before the Court, rather than a jury trial, is that correct sir?

PEETE: Excuse me Judge?

COURT: You still want to have this heard by the bench, by the Court, rather than by a jury, correct?

PEETE: Yes Judge.

COURT: O.K., and you have no objection to my maintaining jurisdiction at this time, is that acceptable to you sir?

PEETE: Yes Judge.

(R. 61-62).

Peete affirmatively waived his right to a jury trial when he signed the written waiver form. See Hutchins v. State, 493 N.E.2d 444, 445 (Ind.1986); Rodgers v. State, 275 Ind. 102, 415 N.E.2d 57, 58 (1981) (both of these cases stand for the proposition that the right to a jury trial in a felony charge may be waived in writing). In Rodgers, the defendant signed a written waiver form. The trial court also engaged in a brief exchange with the defendant on the record, similar to that engaged in here. The supreme court held that these facts constituted a sufficient waiver and the fact that a more extensive colloquy had not occurred would not vitiate the effectiveness of the waiver. 415 N.E.2d at 58. Based on the foregoing, we conclude that Peete waived his right to a jury trial in a knowing, intelligent and voluntary manner.

II. Ineffective Assistance of Counsel Validity of Inventory Search

Peete further contends that his trial counsel was ineffective for failing to object to the admissibility of the cocaine, which Peete contends was obtained as a result of an illegal inventory search. To prevail on a claim that counsel was ineffective for failing to make a proper objection, it must be shown that a proper objection would have been sustained by the trial court. Vega v. State, 656 N.E.2d 497, 504 (Ind.Ct.App.1996), reh'g denied, trans. denied. Absent such a showing, an appellant cannot prevail on an ineffective assistance of counsel claim. See Lowery v. State, 640 N.E.2d 1031 (Ind.1994), reh'g denied, cert. denied Lowery v. Indiana, --- U.S. ----, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995).

The Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution protect both privacy and possessory interests by prohibiting unreasonable search and seizures. Culpepper v. State, 662 N.E.2d 670, 675 (Ind.Ct.App.1996), reh'g denied, trans. denied (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh'g denied; Taylor v. State, 659 N.E.2d 535, 537 (Ind.1995)). Generally, a judicially issued search warrant is a condition precedent to a lawful search. Fair v. State, 627 N.E.2d 427, 430 (Ind.1993). Searches and seizures conducted outside of the judicial process are per se unreasonable under the Fourth Amendment. The burden of proof rests upon the State to prove that the warrantless search falls within one of the narrow exceptions to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Fair, 627 N.E.2d at 430.

The State contends that the cocaine was discovered pursuant to a valid inventory search. As an alternate argument, the State argues that the cocaine was discovered pursuant to a valid search incident to arrest. Because we resolve this case based on the inventory exception, we do not address the State's alternate argument.

A. The Initial Stop

We first note that no issue has been raised with regard to the initial stop of the vehicle. It is well-settled that a police officer may briefly detain a person whom the officer believes has committed an infraction or an ordinance violation. See 34-4-32-2; English v. State, 603 N.E.2d 161, 163 (Ind.Ct.App.1992), reh'g denied. It is a Class C infraction to operate a motor vehicle with equipment that is not in good working condition. Ind.Code 9-21-7-1; Ind.Code 9-21-7-13. The initial stop of Peete's vehicle was due to failure to keep the license plate properly illuminated. The initial stop was therefore valid. See Walker v. State, 527 N.E.2d 706, 708 (Ind.1988), cert. denied Walker v. Indiana, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 118 (1989) (holding that investigatory stop of vehicle was justified where license plate illumination and taillight were not functioning).

B. The "Inventory Search" Exception

An exception to the warrant requirement has been carved out for routine inventory searches of properly impounded automobiles conducted pursuant to established police caretaking procedures. Rabadi v. State, 541 N.E.2d 271, 274 (Ind.1989). The Supreme Court of the United States first recognized the so-called "inventory exception" in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Opperman court held that the police may conduct a warrantless search of a properly impounded vehicle if the search remains within the permissible...