Attorneys for Appellee
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
June 29, 2001
Defendant was charged with Murder
and Failure to Give Notice of Violent or
Suspicious Death, a Class D Felony.
A jury found Defendant guilty of
both counts. The trial court sentenced Defendant to concurrent sentences of 60
years for the murder and one and a half years for failure to
We will recite additional facts as necessary.
Because Carters ex-wife Tina Crozier had not heard from him, she called D
Wilson on January 18, 1999. She informed Wilson that she had not
seen Carter since December 31 and she was worried about his well-being.
Carter had suffered from a number of physical disabilities, including excessive weight, a
knee injury, sleep apnea, and a heart problem that required him to use
an oxygen machine. Because of these disabilities, he did not leave the
house very often or for more than a few hours at a time.
Wilson, following standard pr
ocedure, told Crozier to wait a few days and that
she should call back if she still had not heard from Carter.
Crozier called again on January 20. Wilson went to Carters house and
knocked, but received no answer. He returned 45 minutes to an hour
later and left his card in the door. On the back of
his card he left a note for Carter to call him. Wilson
later received a voice mail from a man claiming to be Carter, but
Crozier identified the man on the voicemail tape as Defendant.
Wilson entered Carters house, looking for him. When he looked in the
ement he found a mound of dirt and newly poured concrete in a
three feet by six feet area. He also noticed empty cement bags
and chunks of old cement that he believed had been in the floor
where the new concrete now lay. At this point, Wilson left the
house because he felt there might be something wrong there. Wilson then
called homicide detectives who took over the case. Before re-entering Carters residence
to search for evidence of a crime, the officers obtained a search warrant.
Generally, officers must obtain a search warrant to search a persons house.
U.S. Const. amend. XIV;
Jewell K. Krise, 746 N.E.2d 957, 961 (Ind. 2001).
One well recognized exception to the warrant requirement is for an entry
under emergency circumstances. See United States v. Jeffers, 342 U.S. 48, 51
(1951). It is not necessary for police to have a warrant to
enter a residence when the circumstances suggest a reasonable belief that a person
within the premises is in need of aid. See Stewart v. State,
688 N.E.2d 1254, 1257 (Ind. 1997). And we have previously recognized that
there can be a reasonable belief that a person may be in need
of aid within a premises when the occupant has been missing. Most
cases upholding this exception have found that a persons absence, combined with other
circumstances, have created the exigent circumstances necessary for a warrantless search. For
example, in Geimer v. State, this court upheld an entry upon a reasonable
belief that a person within the premises [was] in need of aid where
it was unlike [the victim] to leave town for a period of time
without notifying anyone. 591 N.E.2d 1016, 1019 (Ind. 1992). Other courts
have also recognized that warrantless searches may be appropriate to seek an occupant
reliably reported missing. See 3 Wayne R. LaFave, Search and Seizure §
6.6(a) (1996) at 396; United States v. Presler, 610 F.2d 1206 (4th Cir.
1979) (upholding warrantless search where defendants landlady had not seen him for some
time and an unusual odor was emanating from his room); State v. Blades,
626 A2d 273 (1993) (upholding warrantless search where victims relatives worried about her
whereabouts and she had been involved in a troubled marriage and her mother
believed her husband had harmed her).
The circumstances of this case support Wilsons search of Defendant and Carters home.
The trial court found that [t]he facts within the knowledge of Dete
constitute probable cause to believe that [Carter] was upon the
and may have been in need of aid. Carter had
reliably been reported missing. He suffered from various ailments that kept him
in or near his residence, making it reasonable to think that he was
at home. Furthermore, due to his disabilities, it was reasonable to think
that Carter might be in imminent need of medical assistance.
Although the warrant requir
ement is relaxed somewhat where, as in this case, there
is a legitimate missing persons claim, there is no unlimited missing persons exception.
Even in a missing persons case, there must be exigent circumstances to
justify a warrantless search. In this case, it appears that Detective Wilson
was legitimately searching for a missing person that he thought might be in
need of aid. When he found evidence of foul play, he left
the residence and turned the case over to homicide detectives. And as
previously noted, before re-entering Carters residence to search for evidence of a crime,
the officers obtained a search warrant.
The police interviewed the Defendant after reading him his
Miranda rights. Defendant
provided a substantial amount of information about the murder and the events afterward.
At the conclusion of the interview, the police asked Defendant to make
a videotaped statement and Defendant declined.
Prior to the start of the trial, the trial court granted Defendants request
to bar any re
ference to his refusal to give a videotaped statement.
During trial, defense counsel cross-examined the States witness, Detective Hamilton, regarding Defendants confession.
The questions involved the facts that Defendant had admitted to the police:
[Defense Counsel]: And he freely admitted to you, did he not, that
he had participated in afterwards, the concea
lment of Mr. Carters body?
[Detective Hamilton]: That is correct.
(R. at 508.)
During re-cross-examination, defense counsel continued to elicit i
nformation regarding Defendants disclosure of information
to the police:
[Defense Counsel]: And he freely told you about his involvement and what
he had done after Bennett had shot Carter?
[Detective Hamilton]: Yes.
[Defense Counsel]: Told you he had went and rented an air ha mmer.
[Detective Hamilton]: True.
[Defense Counsel]: Told you he had sold the shotgun to Roger Rice.
[Detective Hamilton]: True.
[Defense Counsel]: Told you everything about what had hap pened that turned out to be true, right?
[Detective Hamilton]: Yes.
(R. at 514-15.)
After this cross examination, the court reconsidered Defendants initial request to exclude from trial the fact that Defendant had refused to record his statement. The trial court decided that defense counsels cross-examination had opened the door to the otherwise excluded evidence.
A person in custody who is questioned by the police has the right
to remain silent and, in general, a criminal defendant may not be pena
at trial for invoking the right to remain silent. See Doyle v.
Ohio, 426 U.S. 610, 619-620 (1976); U.S. Const. amend. XIV. Even when
an individual waives that right, the right may be invoked at any stage
of the interrogation. See Miranda v. Arizona, 384 U.S. 436, 445 (1966).
Using a defendants post-Miranda silence to impeach a defendant at trial violates
the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S.
Although evidence of a defendants post-
Miranda silence is generally not admissible, the defendant
may open the door to its admission. The Doyle Court acknowledged this
in its decision, stating [i]t goes almost without saying that the fact of
post-arrest silence could be used by the prosecution to contradict a defendant who
testifies to an exculpatory version of events and claims to have told the
police the same version upon arrest. Doyle, 426 U.S. at 619-20.
As we explained in Willsey v. State:
[T]he central constitutional inquiry is the pa
rticular use to which the post-arrest silence
is being put
. Doyle does not impose a prima facie bar
against any mention whatsoever of a defendants right to request counsel, but instead
guards against the exploitation of that constitutional right by the prosecutor.
698 N.E.2d 784, 793 (Ind. 1998) (quo
ting Lindgren v. Lane, 925 F.2d 198,
202 (7th Cir.), cert denied, 502 U.S. 831 (1991)), rehg denied. It
follows that the prosecutor may introduce a defendants post-Miranda silence in limited circumstances
as long as it is not used to exploit a defendants constitutional rights.
Other jurisdictions have found that a prosecutor may bring in a D
silence where the defense has introduced evidence that the defendant cooperated fully with
police. See United States v. Vega, 589 F.2d 1147 (2d Cir. 1978);
Stone v. Estelle, 556 F.2d 1242 (5th Cir. 1977), cert. denied, 434 U.S.
1019 (1978); United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).
In Fairchild, the Fifth Circuit Court of Appeals held that a defendants post-Miranda
silence was admissible to rebut the defendants insinuation that he had cooperated with
the police. 505 F.2d at 1383. The defendants counsel attempted to
create this impression when he asked one of the governments witnesses, During the
period of time that this investigation has been going on, to your knowledge
has [the defendant] cooperated fully with the FBI and U.S. Attorneys office in
responding with anything that you all wanted? Id. The Court of
Appeals held that evidence of the defendants silence was admissible for the purpose
of rebutting the impression which he attempted to create: that he cooperated
fully with the law enforcement authorities. Id.
Here, the trial court properly granted Defendants motion to bar evidence of his r efusal to give a videotaped statement. Defendants initial waiver of his right not to be interrogated was not a wholesale abdication of his privilege against self-incrimination. See Miranda, 384 U.S. at 445 (The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.); Elsten v. State, 698 N.E.2d 292, 294 (Ind. 1998) (holding that a suspect who initially waived his right to counsel could reassert it at any time during the interrogation). Defendant had the right to refuse to be interrogated, whether it was a refusal to answer any questions or a refusal to answer any questions while being videotaped. As such, Defendants refusal to make a videotaped statement was a valid assertion of his privilege against self-incrimination. In this regard, the trial courts barring evidence of Defendants refusal to make a videotaped statement was an appropriate protection of Defendants post-Miranda silence.
The trial courts decision, later in the trial, to permit evidence of D
refusal to make a videotaped statement was also proper. The trial court
found that it was defense counsels intent on cross-examination to convey [Defendants] candor,
honesty [and] cooperation
. The court stated that the implication was very
clear, very loud and clear that through the series of questions asked of
and answered by Detective Hamilton that [Defendant] was open and honest and cooperative
. Because Defendant elicited evidence to suggest that he had cooperated, it
was appropriate for the prosecution to introduce that evidence for the limited purpose
The court limited the States ability to introduce the evidence, sta
ting, I dont
expect the State to dwell on [Defendants refusal]. The court also emphasized
that the information was not appropriate for lengthy comment or for the State
to dwell upon it or its ramifications
. Because the evidence was introduced
to rebut Defendants implication that he cooperated and it was limited to that
purpose only, we find that the trial court did not err.
Defendant also complains that, during its closing argument, the State revisited the issue
of Defendants r
efusal to make a videotaped statement.
Defendant, however, did not
object to this statement, and therefore did not preserve the issue for appeal.
See Wright v. State, 690 N.E.2d 1098, 1111 (Ind. 1997) (holding that
to preserve an issue regarding the propriety of a closing argument for appeal,
a defendant must make a prompt objection to the argument; if overruled, request
an admonishment; and, if further relief is desired, move for a mistrial), rehg
denied; Gibbs v. State, 483 N.E.2d 1365, 1368 (Ind. 1985) (A contemporaneous objection
is required for appellate review.).
Although we do not need to rule on this issue, we believe it
stent with the limitations the trial court placed on the use of
the video-tape refusal for the State to touch on the issue of Defendants
cooperation during closing argument. It was only a brief reference to a
fact that was already in evidence.
In reviewing a sufficiency of the evidence claim, the Court neither reweighs the
evidence nor assesses the credibility of the witnesses.
See Garland v.
State, 719 N.E.2d 1236, 1238 (Ind. 1999) rehg denied. We look
to the evidence most favorable to the verdict and reasonable inferences drawn therefrom.
See Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We
will affirm the conviction if there is probative evidence from which a reasonable
jury could have found Defendant guilty beyond a reasonable doubt. See Brown
v. State, 720 N.E.2d 1157, 1158 (Ind. 1999).
A person who knowingly or intentionally aids, induces, or causes another pe
commit an offense commits that offense... . Ind. Code § 35-41-2-4 (1998).
Therefore, one who intentionally aids, induces, or causes another person to commit
murder is also guilty of murder. See Ledo v. State, 741 N.E.2d
1235, 1238 (Ind. 2001). It is not necessary for the jury to
infer that a defendant participated in every element of the crime. See
Wright, 690 N.E.2d at 1106-7; Fox v. State, 497 N.E.2d 221, 227 (Ind.
1986). We will affirm the conviction if, at the very least, there
is probative evidence from which a reasonable jury could have concluded that Defendant
aided, induced, or caused Bennett to kill Carter.
For the purposes of accomplice liability, we consider the following factors when determining
whether a defendant aided another in the commi
ssion of a crime: (1) presence
at the scene of the crime; (2) companionship with another at scene of
crime; (3) failure to oppose commission of crime; and (4) course of conduct
before, during, and after occurrence of crime. See Kelly v. State, 719
N.E.2d 391, 396 (Ind. 1999) rehg denied; Wright, 690 N.E.2d at 1106.
The fact that a person was pr
esent at the scene of a crime
and did not oppose the crime is not sufficient by itself to convict
him or her of murder. See Burkes v. State, 445 N.E.2d 983,
987 (Ind. 1983); Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981).
However, the jury may consider a defendants presence at and acquiescence to a
crime, along with other facts and circumstances, to find that the defendant participated
in the offense. See Garland v. State, 719 N.E.2d 1236,
1238 (Ind. 1999); Harris, 425 N.E.2d at 156. There is no bright
line rule in determining accomplice liability; the particular facts and circumstances of each
case determine whether a person was an accomplice. See Peterson v. State,
699 N.E.2d 701, 706 (Ind. Ct. App. 1998).
In this case, Defendant acknowledged his presence at the scene of the crime,
rgues that he was not involved in the murder. Defendant told
police that he was in the basement when Bennett shot Carter. He
stated that after the murder he tried to leave the residence, but Bennett
chased him and would not let him leave.
In addition to his presence, D
efendants actions after the crime also implicate him.
First, Defendant shared in the fruits of the crime; he and Bennett
took Carters money and used it to buy cocaine; Defendant also sold Carters
truck. Second, Defendant concealed evidence by helping to bury the body, and
went so far as to borrow a jackhammer from a friend. Third,
it was Defendant, not Bennett, who disposed of the murder weapon. Finally,
Defendant purposefully tried to mislead the police by posing as Carter on the
phone. Throughout Defendants activities, he could have taken the opportunity to go
to the police. Instead, he chose to continue covering up the crime
and selling the victims belongings.
In this respect, this case rese
mbles Hauk v. State, 729 N.E.2d 994, 998
(Ind. 2000), where the defendant was convicted of murder under an accomplice liability
theory. She testified that she stole money from the victim and hid
one of the murder weapons, but insisted that she only observed the murder
and did not participate. We found that there was sufficient evidence for
a jury to infer her complicity in the crime and find her guilty
of murder, even if the jurys decision was based solely on her actions
after the crime that she described in her testimony. Id.
Finally, Defendant also made a statement that jurors could have construed to be a confession. Detective Wayne Kelly, who interviewed Defendant, testified at trial that he had asked Defendant what was the reason for doing this. Detective Kelly stated that [Defendant] indicated that they, meaning he and [Bennett], had done this because they wanted to get [Carters] dope from him. On cross-examination, Detective Kelly indicated that Defendant made that statement while they were discussing what occurred directly after the murder. Defendant contends that the statement in no way serves as any confirmation that [Defendant] knew or participated in the killing of Carter and only goes to prove that [Defendant] searched the house to find Carters cocaine after the killing had occurred. Appellants Reply Br. at 2. While the statement may not be a confession, it is additional evidence that tends to implicate Defendant.
A jury could infer from Defendants presence at the crime scene, a ctions after the crime, and statements to police that he knowingly or intentionally aided Bennett in killing Carter.
SHEPARD, C.J., and DICKSON, J., concur.
BOEHM, J., dissents with sep arate opinion in which RUCKER, J., concurs.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Karen M. Freeman-Wilson
Fort Wayne, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
RUCKER, J., concurs.