ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Sutton Karen Freeman-Wilson
Marion County Deputy Public Defender Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
RONNIE G. MILLER )
v. ) No. 49S00-9908-CR-445
STATE OF INDIANA )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Miller, Judge
Cause No. 49G05-9508-CF-110486
On Direct Appeal
June 26, 2002
The defendant, Ronnie G. Miller, was convicted of murder and criminal deviate conduct
in the 1995 death of 71-year-old Anna Pennington,See footnote who was beaten, sexually attacked,
and strangled to death in her office where she managed an Indianapolis residence
converted into eight apartments. The State had sought the death penalty but
the trial court dismissed the death penalty count before trial because it found
the defendant to be mentally retarded.See footnote Following the jury's verdict, the defendant
was sentenced to sixty-five years for murder and twenty years for criminal deviate
conduct, with the sentences to be served consecutively. In this appeal, we
address the following claimed trial court errors: (1) admitting his statement that
police obtained by coercion and manipulation; (2) excluding the testimony of a social
psychological expert in coerced confessions; (3) convicting him on insufficient evidence. Concluding
that the exclusion of expert testimony was reversible error, we reverse and remand
for new trial.
1. Voluntariness of Statement
The defendant contends that his statement to the police should have been suppressed
because it was the result of coercion, manipulation, and fabricated evidence, in combination
with his vulnerable mental state. The defendant argues that the "totality of
the circumstances creates a full picture of the unwitting mentally retarded defendant being
led down the path to his own detriment, the path being paved by
lies and coercion." Br. of Appellant at 17.
Prior to trial, the defendant filed a motion to suppress "the statement of
the defendant made during the interrogation of the defendant on August 6-7, 1995."
Record at 266. The defendant's extensive supporting brief requested the court
to "suppress the entirety of his statements made on August 6 and August
7, 1995 to Det. Craig Converse." Record at 309. The trial
court denied the motion. During trial, when the State was questioning Detective
Converse regarding his preliminary interview of the defendant before the videotaped interview, the
defense objected, expressly referring to its objections previously presented. Record at 2320,
2323. When the State offered the videotape and its transcript into evidence,
the defendant objected "based on reasons made previously known to the Court, and
incorporat[ing] by reference prior hearings and argument in support of the objection."
Record at 2375. The objections were denied. The grounds asserted in
this appeal were timely raised at trial.
The decision to admit the defendant's statements is a matter of discretion of
the trial court after considering the totality of the circumstances. Kahlenbeck v.
State, 719 N.E.2d 1213, 1216 (Ind. 1999). "When reviewing a challenge to
the trial court's decision, we do not reweigh the evidence but instead examine
the record for substantial, probative evidence of voluntariness." Schmitt v. State, 730
N.E.2d 147, 148 (Ind. 2000); see also Horan v. State, 682 N.E.2d 502,
510 (Ind. 1997). It is the State's burden to prove "beyond a
reasonable doubt that the defendant voluntarily waived his rights, and that the defendant's
confession was voluntarily given." Schmitt, 730 N.E.2d at 148.
See footnote In looking
at the totality of the circumstances from all the evidence, many factors may
be considered including:
the crucial element of police coercion,
Colorado v. Connelly,
479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986); the length of
the interrogation, Ashcraft v. Tennessee,
322 U.S. 143, 153-54, 64 S.Ct. 921, 926-27, 88 L.Ed. 1192,
1199 (1944); its location, see Reck v. Pate,
367 U.S. 433, 441, 81 S.Ct. 1541, 1546-47,
6 L.Ed.2d 948, 954 (1961); its continuity, Leyra v. Denno,
347 U.S. 556, 561, 74 S.Ct.
716, 719, 98 L.Ed. 948, 952 (1954); the defendant's maturity, Haley v. Ohio,
332 U.S. 596, 599-601, 68 S.Ct. 302, 303-04, 92 L.Ed. 224, 228 (1948)(opinion of Douglas, J.);
education, Clewis v. Texas, 386 U.S. 707, 712, 87 S.Ct. 1338, 1341, 18
L.Ed.2d 423, 428 (1967); physical condition, Greenwald v. Wisconsin,
390 U.S. 519, 520-21, 88 S.Ct. 1152,
54, 20 L.Ed.2d 77, 79-80 (1968)(per curiam); and mental health, Fikes v. Alabama,
352 U.S. 191, 196, 77 S.Ct. 281, 284, 1 L.Ed.2d 246, 250 (1957).
Withrow v. Williams, 507 U.S. 680, 693, 113 S. Ct. 1745, 1754, 123
L.Ed.2d 407, 420 (1993); see also Frazier v. Cupp, 394 U.S. 731, 739,
89 S.Ct. 1420, 1424-25, 22 L.Ed. 2d 684, 693 (1969)(considering duration, maturity, intelligence,
police deception, and rights communicated to defendant); Light v. State, 547 N.E.2d 1073,
1077-79 (Ind. 1989)(considering duration, education and intelligence, and police conduct); Kahlenbeck, 719 N.E.2d
at 1216-17 (considering duration, maturity, intelligence, intoxication, advisement of rights, and police deception);
Carter v. State, 490 N.E.2d 288, 290-91 (Ind. 1986)(considering advisement of rights, maturity,
intelligence, and length of interrogation).
We must determine, in light of the
totality of circumstances, whether the police conduct overbore the defendant's will, thus rendering
his statement involuntary. Henry v. State, 738 N.E.2d 663, 665 (Ind. 2000).
The evidence indicates that, after being told by friends that the local television
news broadcast his name in connection with a recent murder, the defendant voluntarily
went to the police station to "get it cleared up." Record at
2203. The defendant arrived at 5:30 p.m. and was placed in an
interview room and the door was closed. The interview room door automatically
locks from the outside when closed. The detective on duty periodically checked
on the defendant to see if he needed anything. The defendant was
not formally arrested at this time. After the defendant had waited approximately
two hours, Indianapolis Police Detective Craig Converse, who was assigned to the case,
arrived and began talking to the defendant.
For about one hour, Detective Converse gathered background and preliminary information from the
defendant. When the defendant initially denied being at the apartment house where
the victim was murdered, which was contrary to the information developed in the
police investigation, Detective Converse considered the defendant to be a suspect and orally
informed the defendant of his rights. No waiver of rights was signed
at this time. Detective Converse's ensuing questioning became more focused and included
confronting the defendant with speculation and assertions that misstated or exaggerated information known
to the detective. Specifically, Detective Converse told the defendant that witnesses had
seen the defendant in the hallway outside the victim's first floor office.
But Detective Converse only knew that a witness saw the defendant in the
upstairs hallway, and that no witness had stated that the defendant was seen
outside the first floor office. In the course of further interrogation, Detective
Converse presented the defendant with a fabricated fingerprint card and computer printout and
represented that the defendant's fingerprints had been found in the victim's office.
In fact, while fingerprints had been recovered at the scene, they had not
yet been identified at the time of the interrogation. Detective Converse also
showed the defendant the police report that stated that the victim died of
natural causes. Detective Converse, knowing that the report was erroneous, nevertheless suggested
to the defendant that the death could have been an accident. During
the entire period of questioning, the defendant was given breaks for drinks, snacks,
and to use the restroom. Just before 1:00 a.m., the defendant acknowledged
that he had encountered the victim in her office on the night of
her death, that he pushed open the door to her office, she told
him to "Get the hell out," and that she then backed up, started
to fall, and that he reached out and the subsequent injuries happened.
Record at 2369.
At this point, about 1:00 a.m., Detective Converse and the defendant took a
45-minute break, during which time the defendant was provided with a soda and
the opportunity to use the rest room. He then was left alone
in the room until approximately 1:45 a.m., when Detective Converse informed the defendant
that he was under arrest and that Detective Converse wanted "to put this
on tape," to which the defendant responded "okay." Record at 2371.
At the beginning of the videotaped interview, Detective Converse again advised the defendant
of his rights, one by one, and after reading each, asked the defendant
if he understood it. As to each right, the defendant acknowledged his
understanding. In response to the detective's concluding question "What does it mean
to you when I tell you your rights?" the defendant responded, "It means
that if I didn't want to, you know, say anything, that I can
talk to an attorney or I could, you know, come on with (inaudible)
you know, to get this cleared up." Record at 2381. After
then reminding the defendant that he was under arrest and charged with murder,
Detective Converse questioned the defendant about the incident. In the ensuing videotaped
interview the defendant admitted that, on the day of the killing, he entered
the apartment house intending to contact an acquaintance. He entered the structure
and knocked on his friend's first floor apartment door. Getting no response,
he turned and saw the victim standing in her office door and then
closing the door. The defendant then went upstairs to contact another person
and, upon his return downstairs to leave the building, he saw the office
door again closing. Believing that the victim was trying to overhear his
conversations, the defendant pushed open the office door, and the victim said, "Get
out of here." Record at 2394. He offered the following description
of the occurrence to Detective Converse:
She was standing there, she said, "Get out of here," and started to
go back the other way and she was falling and when I, I
guess I was trying to keep her from falling and my hand reaction
of my hand touched her face and then my chin hit her either
when she was going down I was trying to catch her and my
fingers must have hit her face and, you know, . . . .
Record at 2395. The defendant then stated that he didn't push her,
but that as she went down, she pulled him down and his face
fell on top of her, and he hit her with his chin or
his head. When Detective Converse told the defendant that when the police
arrived, the victim's pants were pulled down and that an autopsy indicated that
there was penetration in her vagina, indicating that she was raped, the defendant
responded, "Well, she wasn't raped by me, sir. I wouldn't, you know,
do nothing like that to no older lady." Record at 2407-08.
Shortly thereafter, at approximately 2:35 a.m., the interview was terminated at the request
of the defendant who indicated that he wanted to talk to an attorney.
Record at 1188. At no time during the videotaped portion of
the interview did Detective Converse use or refer to any of the speculation,
misstatements, or exaggerated information that he asserted during the questioning that preceded the
2. Exclusion of Testimony of Defendant's Expert
At the time of his interrogation, the defendant was forty-years-old and employed, he
spoke normally, he did not appear to be incoherent or under the influence
of alcohol or drugs. Record at 1162-63, 1325. There is no
allegation or indication that police knew that he was mentally retarded. The
defendant's prior criminal history evidences his familiarity with the criminal justice system.
Record at 1354-56. He was twice orally advised of his rights prior
to his videotaped statement, and once again at the commencement of his videotaped
statement, which advisement he acknowledged and expressly waived. He further demonstrated his
awareness of rights when he later requested that the interview stop because he
wanted to talk to an attorney.
The trial court denied the motion to suppress, expressly noting its earlier determination
that the defendant was mentally retarded, but finding that he freely, voluntarily, and
intelligently waived his rights and gave his statement to police.
The police interrogation facts are strikingly similar to those in
Henry, in which
the officers falsely told Henry that his fingerprints were found at the scene
of the crime and that a witness identified him as the person who
killed the victim. 738 N.E.2d at 664. In addition, "Henry actually
gave two incriminating statements: the first, unrecorded and accompanied by police deceit; the
second, audiotaped with no hint of police deception. It was the second
audiotaped confession that was admitted into evidence." Id. at 665. In Henry,
we found no error in the admission of the confession.
Similarly here, considering the totality of the substantial probative evidence of volunariness shown
by the record, we find beyond a reasonable doubt that the defendant voluntarily
waived his rights, and that his incriminatory statements admitted in evidence were voluntarily
given. The trial court did not err in denying the defendant's motion
to suppress and overruling his trial objections to the admission of his statements
The defendant contends that the trial court erroneously excluded the testimony of Dr.
Richard Ofshe, a psychologist called by the defense as an expert in the
field of "social psychology of police interrogation and false confessions." Br. of
Appellant at 17.
On the first day of trial, the State filed a motion in limine
seeking an order prohibiting the defendant's expert and lay witnesses from testifying about
various matters, including "the interrogation process used in this defendant's case," and "the
truthfulness of the defendant's statements/confession given in this case." Record at 408.
Following a brief discussion with counsel, the trial court stated that it
would preliminarily grant the motion as to all witnesses, but that when the
defense's expert witness arrived, the court would hear the expert's testimony out of
the jury's presence, reconsider the motion, and rule on it. Record at
The motion was then reconsidered near the end of the evidence. Out
of the jury's presence, the defense questioned Dr. Ofshe regarding the matters it
sought to have Dr. Ofshe present to the jury. When the trial
court, during the testimony of Dr. Ofshe, expressed concern that his testimony would
imply by innuendo that Detective Converse's interrogation of the defendant produced a coerced
confession, Record at 2830-31, Dr. Ofshe explained:
The nature of the testimony is going to be: one, about the general
way in which police interrogation works which fits the description that Converse gave
about the tactics that he used; second, it will be about those things
that can lead to someone giving a false confession; and third, it will
be about how to take the undisputed record of the interrogation, the recorded
part of it and analyze it, in terms of trying to figure out
what is what the indicia of a true or false confession might
be and thereby for the jurors to reach their decision about how
much weight to give it. My role is only to point out
what things ought to be considered.
Record at 2831-32. The defense then called Detective Converse to the stand
and questioned him about the defendant's interrogation, and then recalled Dr. Ofshe, asking
him whether Detective Converse's testimony provided "any characteristics . . . or phenomena
of false confessions or police interrogation in your area of study . .
. ." Record at 2865. Dr. Ofshe replied:
He identified the two principle things that go into the analysis of police
interrogation. . . . First, he talks about the use of the
fingerprints, for example. That's what I refer to in my writings as
an evidence ploy, bringing before someone information that contradicts what they have previously
been saying, that places them in involvement at a the crime scene, whether
that evidence is true or that evidence is false, it is what
what I refer to as an evidence ploy, so as not to restrict
it to whether it's true or false. It's an evidence ploy because
it's used tactically. It is used tactically in order to move the
person off the position that they had previously been maintaining by showing them
that it's hopeless to maintain that you aren't involved in this. And
the use of evidence ploys is the principal way in which someone who
is initially says, "I didn't do it; I wasn't there" is gotten
to recognize that it's hopeless to maintain that position, and that's crucial to
understanding how it is you get someone to say, "Okay, I did it."
The second thing that Converse described was the use of his pointing
out that this was just a natural death and he used the word
"accident" in that. That's again a motivational tactic. The object is
to make the suspect believe that the police officer is willing to believe
a characterization of what happened that is less heinous, less morally reprehensible and
also carries the implication ofof a less serious and perhaps even borderline or
perhaps even carrying no punishment uhfor having committed the acts because it's sometimes
characterized as self-defense, for example. So Converse has already illustrated the two
principal components of modern police interrogation. The other things uh I'm
also aware that he acknowledges he was friendly. He tried to develop
rapport. He tries toto tell Mr. Miller that he only wants to
get to the truth and he confronts Mr. Miller when he believes or
knows that Mr. Miller is lying with evidence ploys designed to move him
in the direction of admitting that he was there.
Record at 2865-67. After the evidence on the motion was completed, the
trial court concluded that there was no dispute in the evidence regarding "the
officer's interrogation," Record at 2869, and expressed concern that the witness's testimony would
be "questioning the truth and veracity of a witness, . . . the
police officer," Record at 2870. It ruled, "I'm not going to permit
the testimony for that reason." Id. The defendant supplemented the
hearing on the State's motion in limine with an offer to prove.
Record at 2903-3147. This offer included further testimony from Dr. Ofshe
regarding his expertise and extensive writings in the area of police interrogation and
false confession and a description of modern police interrogation technique. Dr. Ofshe
described evidence ploys based on psychological principals used to "drive [a suspect's] confidence
down to the point where they think it is virtually certain" that they
will be arrested, tried, and convicted. Record at 2911. He also
explained the tactic of "maximization/minimization" or "the accident strategy" which is "intended to
make it easier for the person to say 'I did it.'" Record
at 2913-15. Dr. Ofshe then stated that "police are trained to try
to get corroboration in the post-admission narrative," explaining the efforts to obtain details
from the suspect that are consistent with the known facts of the crime.
Record at 2916. Dr. Ofshe testified, "There are innumerable demonstrated cases
of people confessing to crimes, being convicted, and subsequently being exonerated." Record
at 2928. He also asserted that the "mentally handicapped are more suggestible
and more likely to give a false confession," stating that they are "easier
to manipulate," less able to appreciate long-range consequences, easier to persuade to see
the facts as asserted by the interrogator, and easier "to get to give
both true and false confessions." Record at 2928-29.
Because the trial court did not reverse his earlier ruling, Dr. Ofshe did
not present any testimony to the jury.
The defendant argues on appeal that, notwithstanding the trial court's finding that there
was no factual dispute regarding the interrogating officer's techniques, "there was nothing to
explain to the jury why someone, confronted with lies, would then falsely admit
to a crime." Br. of Appellant at 10. The defendant
urges that even when a trial court determines a defendant's statement to be
sufficiently voluntary for admission in evidence, the defendant may still dispute its voluntariness
to the jury. He asserts that "[t]he interrogation process, including its
psychological ramifications, is not within the common knowledge of ordinary persons." Br.
of Appellant at 18. Acknowledging that there is no evidentiary dispute regarding
whether Detective Converse confronted the defendant with speculation and assertions that misstated or
exaggerated information known to police, the defendant argues that he was entitled to
present expert testimony regarding the psychology of false confessions that would enable the
jury to understand why the mentally retarded defendant "would succumb to the lies"
even though he was innocent. Br. of Appellant at 19.
The State argues that the court properly excluded the testimony because the facts
of the interrogation were not in dispute and because the jury would understand
the expert's testimony to pertain to Det. Converse's interrogation of the defendant in
this case. In the alternative, the State argues that the exclusion of
the proffered evidence was harmless.
We first observe that a trial court's determination that a defendant's statement was
voluntary and admissible does not preclude the defense from challenging its weight and
[T]he trial court must make a preliminary factual determination of voluntariness when assessing
the statement's admissibility. The jury, however, remains the final arbiter of all
factual issues under Article 1, Section 19 of the Indiana Constitution. Even
if the court preliminarily determines that the statement is voluntary and admits it
for the jury's consideration, then the defendant is still entitled to dispute the
volunariness of the statement once it is presented to the jury. Although
the court has previously determined voluntariness in connection with the statement's admissibility, the
jury may find that the statement was involuntarily given. If the jury
makes such a determination, then it should give the statement no weight in
deciding the defendant's guilt or innocence.
Morgan v. State, 648 N.E.2d 1164, 1170 (Ind. Ct. App. 1995)(The discussion of
this issue by the opinion of the Court of Appeals was expressly approved
and adopted in Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996).).
Expert testimony is appropriate when it addresses issues not within the common knowledge
and experience of ordinary persons and would aid the jury. Ind.Evidence Rule
704(a). "When [jurors] are faced with evidence that falls outside common experience,
we allow specialists to supplement the jurors' insight." Carter v. State, 754
N.E.2d 877, 882 (Ind. 2001)(finding experts may not testify, however, "to opinions concerning
intent, guilt, or innocence in a criminal case; the truth or falsity of
allegations; whether a witness has testified truthfully; or legal conclusions." Evid.R. 704(b)).
"We expect jurors to draw upon their own personal knowledge and experience
in assessing credibility and deciding guilt or innocence." Carter, 754 N.E.2d at
882. In Carter, we held that a psychologist's testimony that autistic children
find it difficult to deceive "came close to, but did not cross the
line into impermissible Rule 704(b) vouching. Id. at 883-84.
The testimony of Dr. Ofshe regarding police interrogation was also at issue in
Callis v. State, 684 N.E.2d 233 (Ind. Ct. App. 1997), in which the
trial court issued a pre-trial order limiting his testimony regarding the circumstances of
the defendant's police statements by prohibiting him from testifying as "to the defendant's
intent, guilt or innocence, or the truth or falsity of whether a witness
has testified truthfully, or to legal conclusions." Id. at 239. At
the trial of Callis, Dr. Ofshe testified without objection about false confessions generally,
but the trial court sustained the State's objection when he was asked his
opinion about the interrogation process in Callis's case. In Callis's offer of
proof, Dr. Ofshe testified that "there was a 'great dispute between the accounts'
of Callis and the witnessing officers, that 'we have three different versions of
an inculpatory statement . . . all of which are denied by Mr.
Callis," and that "[s]omeone is telling the truth and someone is lying, and
there's no way to reconcile those two things.'" Id. (citations omitted).
The Court of Appeals affirmed the trial court's ruling, stating:
We conclude that the trial court properly admitted Ofshe's testimony regarding the phenomenon
of coerced confessions and properly excluded his opinion about Callis's interrogation. As
can be seen in Callis's offer of proof, the aim of Ofshe's excluded
testimony was to express an opinion as to which witness was telling the
truth about Callis's statements. Such testimony is not admissible pursuant to Evid.
684 N.E.2d at 239-40. We understand Callis to prohibit expert opinion testimony
regarding the truth or falsity of one or more witnesses' testimony, but it
does not generally prohibit expert testimony regarding police techniques used in a particular
In the present case, the fact that the content of the interrogation was
not in dispute is not a proper basis on which to exclude Dr.
Ofshe's testimony. The defendant's trial strategy clearly included his challenge to the
voluntariness of the incriminatory statements in his videotaped police interview. The trial
court's threshold determination of sufficient voluntariness for admissibility of the videotape did not
preclude the defendant's challenge to its weight and credibility at trial. From
our review of the circumstances in the present case, the general substance of
Dr. Ofshe's testimony would have assisted the jury regarding the psychology of relevant
aspects of police interrogation and the interrogation of mentally retarded persons, topics outside
common knowledge and experience. In the event that some of Dr. Ofshe's
testimony to the jury would have invaded Rule 704(b)'s prohibition of opinion testimony
as to the truth or falsity of the defendant's statements, the trial court
could have sustained individualized objections at trial. We hold that excluding the
proffered expert testimony in its entirety deprived the defendant of the opportunity to
present a defense.
The State argues that the exclusion of Dr. Ofshe's testimony was harmless because
the defendant's presence in the victim's office was established by evidence that his
fingerprint was found in what appeared to be blood on a plastic bag
at the scene. This is not inconsequential evidence. We note, however,
that during final argument the State placed great emphasis upon the defendant's videotaped
statements, including replaying part of the videotape to the jury and directing the
jury's attention to a point during the videotape where "the defendant puts his
hands up to Detective Converse's head and shows you how he strangled Anna
Pennington." Record at 3187. Given the prominence of the defendant's statement
in the State's case and the unique circumstances present, we find that the
erroneous exclusion of the whole of Dr. Ofshe's testimony affected the substantial rights
of the defendant. The defendant is entitled to a new trial.
3. Insufficiency of the Evidence
The defendant contends that the evidence at trial is insufficient to support either
of his convictions.See footnote
In addressing a claim of insufficient evidence, an appellate court must consider only
the probative evidence and reasonable inferences supporting the judgment, without weighing evidence or
assessing witness credibility, and determine therefrom whether a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt.
Marcum v. State,
725 N.E.2d 852, 863 (Ind. 2000).
The petite 71-year-old victim suffered multiple blunt force injuries to the head and
neck and died from manual strangulation. The victim's pants were pulled down
and the autopsy revealed evidence of sexual assault in the form of injuries
to the vagina. The defendant was identified as being at the apartment
house shortly before the victim was found. The defendant's statement to police
admitted his presence at the murder scene near the time of the crimes,
his anger at the victim for eavesdropping on his conversations, his entry into
the victim's office despite her telling him to leave, and his physical contact
with her and her falling to the floor with him on top of
her. Further, the defendant's fingerprint was found at the scene of the
The defendant maintains that the testimony of the resident identifying him as present
in the apartment building was inconsistent and suspicious. The inconsistencies in the
testimony were brought out at trial and were factual issues for the jury
to resolve. Challenging the probative value of the matching fingerprint fount at
the scene, the defendant argues that the fingerprint was initially determined to be
insufficient for comparison but through additional testing was identified as the defendant's; that
the police department's policy of requiring only seven of a potential 150 characteristics
and the fact that the print matched eight of the characteristics is insufficient
evidence of a match; that while eleven prints were lifted from the scene,
only the defendant's and the victim's prints were ordered to be compared to
the crime scene prints; and that the other ten prints discovered were not
identified. These facts and issues were raised at trial for consideration by
We conclude that from the evidence presented a reasonable jury could find the
defendant guilty of the charged offenses beyond a reasonable doubt.
The judgment of the trial court is reversed and this case is remanded
for a new trial or further proceedings consistent with this opinion.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur. BOEHM, J., concurs with
BOEHM, Justice, concurring.
I concur in the majority opinion. I write separately to note that
the admissibility of Dr. Ofshes testimony under Indiana Evidence Rule 702 was not
addressed by Miller or the State. Jurisdictions that have considered the admissibility
of expert testimony as to false confessions under various versions of Evidence Rule
702 have split on that issue. Compare United States v. Shay, 57
F.3d 126 (1st Cir. 1995); United States v. Hall, 974 F. Supp. 1198
(C.D. Ill. 1997); Boyer v. Florida, 2002 Fla. App. LEXIS 6278 (Fla. Dist.
Ct. App. May 9, 2002) with People v. Son, No. D032612, 2000 Cal.
App. LEXIS 209 (Cal. Ct. App. March 21, 2000); Kansas v. Cobb, 43
P.3d 855 (Kan. Ct. App. 2002); New Jersey v. Free, No. A-5275-00T2F, 2002
N.J. Super. LEXIS 249 (N.J. Super. Ct. App. Div. May 24, 2002).
The Record indicates that some of the proceedings were conducted by W.T.
Robinette, identified variously as Master Commissioner and Judge pro tem.
Footnote: The jury found the defendant guilty of separate charges of murder and
felony murder. At sentencing the trial court merged the felony murder count
into the murder conviction.
Footnote: The State may not seek the death penalty against a mentally retarded
individual. Ind.Code § 35-36-9-6. For this purpose, "mentally retarded individual"
is defined as "an individual who, before becoming twenty-two (22) years of age,
manifests: (1) [s]ignificantly subaverage intellectual functioning; and (2) [s]ubstantial impairment of adaptive
behavior; that is documented in a court ordered evaluative report." Ind.Code §
35-36-9-2. After a hearing and consideration of the opinions of several expert
witnesses, the trial court found that significant subaverage intellectual functioning "equates with an
IQ of approximately 70 to 75 or below. . . ." Record
at 264A. The court dismissed the State's request for the death sentence,
concluding that the defendant "has significantly subaverage intellectual functioning in that experts trained
in the field of intelligence testing administered traditional standardized tests to him and
concluded that his intellectual functioning was at 67 [which] confirms measurements taken of
him in grade school prior to the age of twenty-two (22) years."
Indiana courts require the State to prove the voluntariness of a confession
beyond a reasonable doubt, unlike federal decisions, which require only proof by a
preponderance of the evidence.
See Henry v. State, 738 N.E.2d 663, 664
n.1 (Ind. 2000).
In regard to police conduct, we note that police deception does not
automatically render a confession inadmissible.
Kahlenbeck, 719 N.E.2d at 1217. We
have repeatedly stated that police deception during an interview is one factor to
consider in the totality of the circumstances. Id. (citing Willey v. State,
712 N.E.2d 434, 441 (Ind. 1999))(finding that the admitted police deception of falsely
claiming possessing certain evidence during interrogation did not render the defendant's statement involuntary
when the defendant had been read his rights, indicated that he understood them,
was a mature individual of normal intelligence and had not been interrogated for
an inordinate amount of time); see also Carter, 490 N.E.2d at 290-91 (finding
the defendants statement voluntary even though police falsely told the defendant that the
victim was still alive because the defendant had been apprised of his rights,
indicated he understood, was a mature individual of normal intelligence, and was not
interrogated for an inordinate amount of time). We also note that not
all police interrogation statements of conjecture, presented as fact, constitute police deception.
See Ellis v. State, 707 N.E.2d 797, 801 (Ind. 1999). In Ellis,
we determined that if the police have a good faith basis for their
technical falsehood, then their action will not be deemed deceptive. Id. (where
police had observed footprints at the crime scene, telling the suspect during interrogation
that they had evidence of a shoe print which would be similar to
his was not deceptive even though they had no actual evidence, and threatening
to arrest suspect's brother and sister if suspect did not cooperate was not
deceptive when suspect's siblings were already in custody).
The trial court entered the following findings in denying the defendant's motion
3. Although this Court has found that Mr. Miller is a mentally
retarded person pursuant to I.C. 35-36-9-5, the Court finds that he understood all
of his legal rights as described to him and that he freely, voluntarily
and intelligently waived his rights and gave the police a statement.
4. Det. Converse's deceit to Mr. Miller regarding the nature of the
evidence in the detective's possession which occurred after the reading of the "Miranda"
warnings does not amount to improper coercion which would negate Mr. Miller's free
will giving the statement.
Record at 342.
Because of this result, we do not address the defendant's claim of
trial error in the admission of hearsay evidence from a deceased person.
Footnote: We review this claim because, if the evidence is found to be
insufficient to convict the defendant, he is entitled to have his convictions reversed,
and he could not be retried.
See Stahl v. State, 686 N.E.2d
89, 94 (Ind. 1997); Vest v. State, 621 N.E.2d 1094, 1096-97 (Ind. 1993).