APPELLANT, PRO SE: ATTORNEYS FOR APPELLEE:
LESLIE DALE COSBY KAREN FREEMAN-WILSON
Linden, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
LESLIE DALE COSBY, )
vs. ) No. 12A05-0003-CR-110
STATE OF INDIANA, )
APPEAL FROM THE CLINTON SUPERIOR COURT
The Honorable Linley E. Pearson, Judge
Cause No. 12D01-9910-CM-490
November 27, 2000
OPINION - FOR PUBLICATION
Leslie Dale Cosby appeals his conviction for driving without having ever received a
valid drivers license, a class C misdemeanor. We affirm.
Cosby has presented us with a number of issues for review. We
restate them as two general issues:
I. whether his state constitutional right to free exercise of religion was
infringed because he was driving to his place of worship at the time
he was pulled over by the Indiana State Police.
II. whether the trial court committed several procedural irregularities.
On Sunday, June 27, 1999, Indiana State Police Officer Richard Kelly observed a
vehicle driving in excess of the speed limit on State Road 28 in
Clinton County. After Kelly stopped the vehicle, Cosby identified himself as the
driver. Kelly ascertained that Cosby had never received a drivers license and
wrote a ticket charging that he had committed the offense of driving a
vehicle without having ever received a license. At Cosbys first initial hearing
in this matter following the filing of the States information, he filed a
Demand for a Bill of Particulars directed to the prosecutor and a document
entitled Notice of Venue addressed to Officer Kelly. Record pp. 14, 20.
At this initial hearing, Cosby repeatedly insisted that he did not understand
what he was being charged with, although the information clearly alleged that he
operated a motor vehicle on State Road 28 in Clinton County on June
27, 1999, never having received a valid drivers license.
See footnote After the trial
court ascertained that Cosby could read and write the English language and that
he was attending college, and after numerous failed attempts to persuade Cosby to
state that he understood the plain language of the information, the trial court
held Cosby in direct contempt for disrupting its proceedings and ordered him jailed
for thirty days.See footnote During this colloquy, Cosby also demanded that the trial
court permit his father to represent him as his counsel, although the father
was not a licensed attorney. The trial court refused this request.
After Cosby served six days of his contempt sentence, the trial court held
another initial hearing, at which Cosby admitted that he understood the language of
the information, as well as his constitutional rights and the minimum and maximum
sentences he faced. The contempt sentence was reduced to time served. Following
a bench trial, at which Cosby continued to represent himself, the trial court
found Cosby guilty of operating a vehicle never having received a drivers license.
This appeal ensued.
I. Free Exercise of Religion
The main thrust of Cosbys appeal is that he was driving to church
with his mother and father at the time Officer Kelly pulled him over,
and, therefore, that his conviction for operating a vehicle without having ever received
a license violates his God-given right to travel, or his God-given right to
worship. Appellants Brief p. 6. Initially, we note that Cosby has
cited us to Article I, Section 3 of the Indiana Constitution of 1816
in support of his argument on this point. However, the Indiana Constitution
of 1851 long ago superseded the 1816 Constitution. Article I, Sections 2
through 5 of the 1851 Constitution essentially repeat Article I, Section 3 of
the 1816 Constitution, with the exception that Article I, Section 3 of the
1851 Constitution differs slightly when it states that No law shall, in any
case whatever, control the free exercise and enjoyment of religious opinions, or interfere
with the rights of conscience. Ironically, this provision most closely aligns with
Cosbys free exercise claims.
It is true that the Indiana Constitution may demand more protection for citizens
than its federal counterpart.
Ajabu v. State, 693 N.E.2d 921, 929 (Ind.
1998). However, Cosby provides us with no argument that Indianas protections for
the free exercise of religion differ in any respect from the similar protections
found in the First Amendment to the United States Constitution, and we will
not construct such an argument for him. Therefore, because our research has
revealed a dearth of cases squarely interpreting the free exercise guarantees of the
Indiana Constitution, we will turn for guidance to decisions of the United States
Supreme Court regarding free exercise under the First Amendment.
A law that is neutral and of general applicability need not be justified
by a compelling governmental interest even if the law has the incidental effect
of burdening a particular religious practice. Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217,
2226 (1993). The right of free exercise of religion does not relieve
an individual of the obligation to comply with a valid and neutral law
of general applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes). Employment Div., Dept. of Human Resources
of Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 1600
(1990). If the object of a law is to infringe upon or
restrict practices because of their religious motivation, the law is not neutral.
Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 533, 113 S.
Ct. at 2227. The defect of lack of general applicability applies primarily
to those laws which, though neutral in their terms, through their design, construction,
or enforcement target the practices of a particular religion for discriminatory treatment.
Id. at 557, 113 S. Ct. at 2239 (Scalia, J., concurring).
The law requiring those who wish to drive motor vehicles on public highways
to obtain licenses is a neutral law of general applicability. There is
no indication that this law was enacted with the object of restraining persons
from traveling to their chosen place of worship. Rather, the statutory scheme
governing the use of motor vehicles conditions the use of a drivers license
on the observation of certain rules and operating standards for general reasons of
public safety. Schrefler v. State, 660 N.E.2d 585, 588 (Ind. Ct. App.
1996). Additionally, we see no evidence that our state police and other
law enforcement bodies have set out to enforce this law only against Christians
driving to church. In essence, Cosby wishes to be able to use
roads constructed and maintained by the government to expedite travel to his place
of worship, without having to comply with the minimal assurances for the safety
of himself, his passengers, and other members of the public who use those
roads by obtaining a drivers license. We cannot permit this, and we
hold that Cosbys right to the free exercise of religion as protected by
the Indiana Constitution has not been infringed by his conviction.
II. Procedural Issues
Cosby also makes a number of procedural claims in challenging his conviction, none
of which are persuasive. First, he claims that he was deprived of
his right to counsel because the trial court would not permit his father,
a pastor, to represent him. However, it is undisputed that Cosbys father
was not a licensed attorney, and it is well settled that there is
no constitutional right to lay assistance or lay counsel at either trial or
Kimble v. State, 451 N.E.2d 302, 307 (Ind. 1983). See
also Turner v. American Bar Assn, 407 F.Supp. 451, 481 (N.D. Tex. 1975),
affd by Taylor v. Montgomery, 539 F.2d 715 (7th Cir. 1976) (holding that
freedom of religion was not infringed by refusing to permit defendants to be
represented by unlicensed laymen).
Cosby next claims that there was no presentment, Indictment or impeachment presented in
the instant matter and that this failure violated Article I, Section 12 of
the 1816 Constitution. Appellants Brief p. 19. Once again, however, the
1851 Constitution controls here. Article I, Section 13(a) of the 1851 Constitution
provides, with respect to initiating criminal prosecutions, that an accused has the right
to demand the nature and cause of the accusation against him, and to
have a copy thereof . . . . The information filed in
this matter plainly fulfilled this requirement. See Beverly v. State, 543 N.E.2d
1111, 1116 (Ind. 1989) (holding that states may initiate criminal prosecutions by information
and that Indiana Code Section 35-34-1-1, which allows for prosecution by information, is
Nevertheless, Cosby claimed at the trial court level and continues to claim on
appeal that he was denied the opportunity . . . to discover the
nature and cause of the accusations against him. Appellants Brief p. 19.
However, Cosby admitted at his second initial hearing that he understood the
offense charged in the information. His argument on this point is apparently
related to the Demand for Bill of Particulars and Notice of Venue he
filed at the first initial hearing, which seem to have been attempts to
attack the trial courts assertion of personal jurisdiction over him. Cosby, though,
never filed a motion to dismiss the information for any alleged jurisdictional impediment
to his conviction as permitted by Indiana Code Section 35-34-1-4(a)(10). This failure
to challenge the sufficiency of the information via a motion to dismiss waives
any argument Cosby may have had with respect to personal jurisdiction. Lawrence
v. State, 665 N.E.2d 589, 592 (Ind. Ct. App. 1996), trans. denied.
See also Twyman v. State, 459 N.E.2d 705, 707 (Ind. 1984) (Objections to
jurisdiction of the person may be waived by failure to assert them in
a timely manner). Moreover, Cosbys Demand for Bill of Particulars and Notice
of Venue were not sufficient to constitute a challenge to the information for
purposes of waiver. See Driver v. State, 725 N.E.2d 465, 468 (Ind.
Ct. App. 2000) (stating that a Motion to Challenge the Truth and Veracity
of Probable Cause Information filed before initial hearing was not a sufficient challenge
to the information but merely notice that argument would be made at a
We find that any additional arguments Cosby makes, based for example on his
status as a Christian in the legal sense of the term (Appellants Brief
p. 12) or his concern that affirmance of his conviction will further saddle
Indiana with the racism, tyranny and violence of the 14th Amendment (Appellants Brief
p. 22), lack cogency and are inappropriate in this forum. We need
not address them further.
Because Indianas law requiring the use of a drivers license to drive a
vehicle on public roads is a neutral law of general applicability, we find
no constitutional infirmity in Cosbys conviction based on the fact that he happened
to be driving to church at the time he was stopped by Officer
Kelly. Additionally, Cosbys arguments as to procedural irregularities are without merit.
BAILEY, J., and RILEY, J., concur.
See Ind. Code § 9-24-18-1.
Cosby does not appeal his contempt conviction.
Footnote: On a related note, Cosbys God-given right to travel is not infringed
by a drivers license requirement, because neither our supreme court nor the United
States Supreme Court has ever held that there exists a fundamental right to
drive a motor vehicle.
Mitchell v. State, 659 N.E.2d 112, 116 (Ind.