Calvin Cole v. State of Indiana (mem. dec.)
49A02-1603-CR-575
| Ind. Ct. App. | Jan 31, 2017Background
- On May 3, 2015, Calvin Cole rode his motorcycle with passenger Rochelle Matthews (no helmet) after drinking; his breath test later showed a .185 BAC.
- While returning to Matthews’s neighborhood, Cole struck a pothole and Matthews fell off the motorcycle. A neighbor called 911 reporting a loud crash and a motorcycle on the ground.
- Police responded, observed Cole appeared intoxicated, and Cole was charged with two Class A misdemeanors: operating with BAC above .15 and operating while intoxicated in a manner that endangers a person.
- A jury convicted Cole of both counts; he was sentenced to 365 days with 335 suspended. Cole appealed only the endangerment conviction.
- On appeal Cole argued the trial court abused its discretion by admitting the 911 call recording, asserting it contained testimonial hearsay implicating his Sixth Amendment right to cross-examine the caller.
- The court considered whether admission of the recording was harmless beyond a reasonable doubt and whether, apart from the recording, the State presented sufficient evidence of endangerment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cole) | Held |
|---|---|---|---|
| Admission of 911 call recording | Admitting the recording was proper and any error was harmless | The recording contained testimonial hearsay; Cole had no opportunity to cross-examine the caller, violating the Sixth Amendment | Even if admission was erroneous, error was harmless beyond a reasonable doubt because other evidence supported endangerment |
| Sufficiency of endangerment evidence (without 911 call) | Evidence (BAC, officer observations, passenger fell off) established intoxication and endangerment | Without the 911 call, evidence might be insufficient (argues driving slowly and hitting a pothole might not be endangerment) | Sufficient: passenger falling off while Cole drove was enough to prove endangerment |
Key Cases Cited
- Outlaw v. State, 929 N.E.2d 196 (Ind. 2010) (defines elements of operating while intoxicated in a manner that endangers a person)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error harmless only if harmless beyond a reasonable doubt)
- Mack v. State, 23 N.E.3d 742 (Ind. Ct. App. 2014) (harmless-beyond-a-reasonable-doubt standard for constitutional evidentiary errors)
- Temperly v. State, 933 N.E.2d 558 (Ind. Ct. App. 2010) (BAC of .08 provides prima facie evidence of intoxication)
- Vanderlinden v. State, 918 N.E.2d 642 (Ind. Ct. App. 2009) (endangerment can be shown by operating manner that could endanger any person; does not require another person to be in immediate path)
- Bishop v. State, 40 N.E.3d 935 (Ind. Ct. App. 2015) (standard of review for evidentiary rulings)